RCW v R

Court of Criminal Appeal (NSW)|2014-07-28|Before: Bathurst CJ, Adams J, Hulme J

Judgment 1BATHURST CJ: I agree with R A Hulme J. 2ADAMS J: At the hearing of the appeal, I joined in orders that the appellant should be admitted to bail. I did so on the basis that it was clear that he should not spend further time in prison. I have had the advantage of reading the judgment of Hulme J in draft and I agree with his Honour's disposition of the grounds of appeal, for the reasons his Honour has given. However, I would prefer to approach the resentencing exercise somewhat differently, which would result in different sentence. 3My starting point is the distinction to be made on the one hand between the actions of the offender before he, in substance, withdrew from the offending and did all that was within his power to frustrate the object of the importation offence and, on the other, the assistance which he provided to the authorities after his arrest. In my respectful view, the former actions, taken as a whole, comprise the objective features that, together with the subjective features and the other elements of the sentencing calculus, such as general and personal deterrence, give rise to the appropriate sentence. The later assistance such as making a statement and agreeing to give evidence is, I would agree, in a distinct category warranting a utilitarian discount on conventional principles. The objective seriousness of the appellant's crime necessarily, to my mind, reflects all that the offender did in respect of the offence. This includes his attempts to ensure that the crime in which he had been complicit was unsuccessful in achieving its objective, namely the safe completion of the importation and its availability for distribution. 4The approach of the learned sentencing judge was to derive a starting point from seriousness of the appellant's criminal activity before his withdrawal and subsequent attempts to frustrate the objectives of the offence of which he was an accessory and then apply a discount for assistance to the authorities to the resulting sentence. In my respectful view, this truncated approach to the appellant's actions was artificial and in principle wrong. It is not a sufficient answer, as I think, to propose that it is enough to give the appellant a very substantial discount (even leaving aside the limits which have apparently been placed on the extent of such discounts) on the basis that here his assistance was far greater that conventionally seen and hence derive a lesser sentence than that ultimately imposed. The discount reflects objective public policy considerations which have nothing to do with the personal desserts of the offender. Here, it is at least arguable that the applicant's assistance was somewhat less objectively necessary as the police were already aware of the importation and its perpetrators and would have been in a position, without the appellant's help, to bring it to an end before the drugs had been on supplied. Accordingly, the appellant might not obtain the fair reckoning of his criminality, looking at his offence from his point of view - he was not aware when he went to the police that they were well aware of it. Treating his withdrawal and attempt to frustrate the objects of the offence merely as an attempt, as it were, to make good the crime he had committed rather than part and parcel of the objective criminality of his offence is to draw an artificial distinction leading to the unjust consequence of overestimating the seriousness of his offence. In this case, the high starting point was not, with respect, appropriately adjusted at all events by an adequate discount (which might have resulted in an appropriately lenient sentence.) 5So considered, the objective seriousness of the appellant's criminality was very low indeed. Looking at other considerations, general and personal deterrence are immaterial as Hulme J points out. It follows from what I have said that I am, with respect, unable to agree that the starting point, before the discounts for plea and assistance, of four years' imprisonment is appropriate. 6I would not wish to complicate too much the approach to circumstances such as the present, which seem to me to be sui generis. Perhaps it is unnecessary to be so analytical and, rather, approach the sentencing of the offender by asking simply what does the administration of criminal justice require to be done to him and accept that justice and public policy intermix in a ways that are not strictly logical and susceptible to close analysis. If this were to be done, I would find it very difficult to accept that the appellant deserved any significant gaol time at all. Amongst other things, it is difficult to see what public purpose would be served by such a sentence. In short, I would prefer to give effect to this conclusion by going immediately to the appropriate result. 7As will already have been gathered, leaving aside other issues with the sentencing process, I consider the sentence under appeal, with respect, to be manifestly excessive. The appropriate sentence at first instance would have been one of 12 months imprisonment with a direction under s 21(1)(b) of the Crimes Act 1914 (Cth) that the appellant be released immediately upon giving the requisite security. This sentence takes into account the entirety of the appellant's actions together with the relevant public policy considerations. However, we have been overtaken by events. Accordingly, I would propose that leave to appeal be granted, the sentence be quashed and the appellant sentenced to a term equivalent to that which he had served prior to his release on bail. 8R A HULME J: RCW (the applicant) applies for leave to appeal against a sentence imposed upon him in the District Court at Gosford on 10 October 2013 by his Honour Judge Ellis. 9For an offence of aiding and abetting the attempted importation of commercial quantities of border controlled drugs the applicant was sentenced to imprisonment for 5 years 6 months with a non-parole period of 3 years. This was after allowing a discount of 50 per cent from a starting point of 11 years for the applicant's early plea of guilty and assistance to authorities. The sentence was specified to commence on 14 July 2013 in order to take into account a period of pre-sentence custody. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 13 August 2016. 10The offence is contrary to ss 11.1, 11.2 and 307.1 of the Criminal Code (Cth). The maximum penalty is imprisonment for life and/or a fine of $825,000.

Facts 11A detailed statement of agreed facts was tendered before the learned judge. It revealed that on 30 December 2011, Canadian authorities detected the secretion of a variety of drugs within a commercial oven that was consigned by air cargo to an Italian restaurant at The Entrance on the Central Coast of New South Wales. The drugs were removed and the consignment was allowed to proceed. It arrived in Sydney on 7 January 2012. 12The drugs comprised 3.96 kg of pure cocaine, 2.25kg of 3,4-methylenedioxymethamphetamine, 3.79kg of para-methoxymethamphetamine and 1.34kg of methamphetamine. The total street value of the drugs was estimated to range from about $5.1 million to $8.7 million with the wholesale value ranging from about $2 million to $3.1 million. 13The Australian Federal Police intercepted the oven once it had arrived in Australia and inserted packages of an innocuous substance. On 10 January 2012 a Controlled Operation Authority was issued to facilitate the delivery of the consignment by police officers and the freight forwarder. 14The statement of facts refers to the activities of each of the participants involved in activities relating to the importation: Reese Thomson, George Tourvas, Alan Dong and the applicant. The role of the applicant was more succinctly set out in the prosecutor's written submissions to the sentencing judge and may be summarised as follows: (a) on 3 January 2012, the applicant attended Storage City, West Gosford and signed a lease agreement in a false name (Richard Jansson) for storage unit 1019 which would be the ultimate storage location for the consignment; (b) on 4 January 2012 the applicant purchased a padlock for the storage unit; (c) on 9 January 2012 the applicant, posing as "Richard Jansson" arranged the transportation of the consignment from the Italian restaurant at The Entrance to Storage City; (d) on 10 January 2012, using a falsely subscribed mobile phone, the applicant telephoned the freight forwarder and confirmed the amount owing; (e) the applicant went to a bank and deposited a cash amount of $2607 in the freight forwarder's account; (f) the applicant, purporting to be George Tourvas, sent a fax to the freight forwarder containing deposit confirmation and confirmation of the delivery address for the consignment; (g) on the same day, the applicant telephoned Active Hire and arranged a forklift to be delivered to the Italian restaurant on 12 January; and (h) on 11 January 2012 the applicant attended Active Hire at West Gosford and received a receipt for the forklift hire. 15Later on 11 January 2012 the applicant attended Hornsby police station. He informed police that he had been pressured by the Hells Angels Outlaw Motorcycle Gang to assist in the importation of 100 kg of heroin which had been secreted in an industrial oven which was to be received at a location on the Central Coast. He was informed that police would apply for a Controlled Operation Authority that would allow him to participate in criminal acts but that it would take some days to be approved. He was advised that if he committed any criminal acts in the meantime he would be held liable. However, he continued his activities (with the knowledge of police and without any intervention) as follows (again drawing from the prosecutor's written submissions): (i) on 12 January 2012 the applicant attended the Italian restaurant and, while liaising with Reese Thomson and Alan Dong by two-way radio and mobile phone, waited almost two hours for the consignment to arrive. During this time, the applicant, posing as "Richard Jansson", telephoned the freight forwarder to inquiry about the delivery of the oven; (j) the applicant took delivery of the consignment, removed the outer packaging and inspected the consignment for evidence of tampering; (k) the applicant escorted the truck as it transported the consignment to Storage City; (l) on 18 January 2012 the applicant telephoned Brett's Truck Parts & All Filters and arranged some straps to lift the oven; and (m) before 19 January 2012 the applicant received from Reese Thomson a diagram which had instructions on how to cut into the oven to extract the drugs. 16Item "n" in the prosecutor's submissions referred to the applicant, Thomson and Dong having numerous meetings at various locations on the Central Coast in the period 3 to 19 January 2012. They also had numerous telephone conversations in which code was used to avoid detection by law enforcement authorities. 17It was on the afternoon of 18 January 2012 that the Controlled Operation Authority was varied so as to permit the applicant to further his participation, but lawfully. 18According to the statement of agreed facts, the following morning the applicant hired the sling straps required for lifting the oven. He went to a hire company and acquired an angle grinder and other tools. He met with Thomson and then went to the storage facility where the oven was removed off its frame and he commenced to cut into the frame where the drugs had previously been secreted. He was in contact with police during this time. He was also in phone contact with Thomson and reported on his progress in relation to the oven. Once he had completed cutting the frame into sections he placed some of them in his car and returned the oven to the storage unit. He then arranged to meet with Thomson but was arrested at that point. Thomson and Dong were arrested at The Entrance. 19The statement of agreed facts concludes with the following: "Throughout the course of his involvement in the offending the Offender felt somewhat intimidated by Thomson and his behaviour. He believed that Thomson had become volatile and increasingly prone to making threats of violence. Accordingly, he felt pressured to carry out tasks as requested by Thomson so as to not upset Thomson. He nevertheless accepts that he voluntarily carried out the tasks requested of him and willingly participated in the offending." 20Also tendered in the Crown bundle was a summary of conversations between the applicant and police between 11 January when he went to the Hornsby police station and when the Controlled Operation Authority was varied on 18 January. It is apparent that he provided considerable information about what was happening with the consignment and concerning the general background and activities of Reese Thomson.

Personal circumstances of the applicant 21As there is no complaint of the learned sentencing judge not having appropriate regard to the applicant's personal circumstances it will suffice to confine reference to the matters his Honour noted. 22The applicant was aged 54 at the time of the offence. He had no relevant prior criminal convictions. There were testimonials attesting to his good character. He had suffered a number of strokes in recent years and a psychological report indicated that these may have resulted in some cognitive deficit. 23The judge concluded that the applicant's age and medical condition would render his time in custody harsher than it otherwise would be. He referred to various subjective features which persuaded him that the non-parole period should be reduced so as to allow for a longer period on parole to assist the applicant's reintegration into the community. 24It was the agreed position of the parties that the applicant should receive a 50 per cent reduction of his sentence on account of his early plea of guilty and assistance to authorities. The assistance commenced during the investigation and continued with making statements and undertaking to give evidence in proceedings against three co-offenders. The judge accepted the Crown's concession in this respect. He assigned 10 per cent of the discount to future assistance. 25Affidavit material before this Court indicates that the applicant gave evidence in the trial of George Tourvas and Alan Dong over 7 days in October-November 2013. It was common ground that he gave evidence in accordance with his undertaking. He is not required to give any further assistance; the Court was informed that Reese Thomson had pleaded guilty and is awaiting sentence.

Grounds of appeal 1. The learned judge erred in having regard to the applicant's conduct after he went to the police on 11 January 2012 as contributing to his criminality with respect to the offence. 2. The learned sentencing judge erred in placing undue weight on the sentences imposed in other cases involving the importation of prohibited drugs. 3. The learned sentencing judge erred in failing to have proper regard to the applicant's voluntary cessation of criminal activity and his reporting the offence to the police. 4. The learned sentencing judge erred in failing to have proper regard to the fact the offence was committed under duress. 5. The sentence is, in all the circumstances, manifestly excessive.

Ground 1 - Error in having regard to conduct after 11 January 2012 26It was contended that the remarks on sentence disclosed (implicitly) that the judge had taken into account all of the applicant's activities, both before and after he came forward to the police on 11 January as comprising his criminal conduct. Mr Dhanji SC mounted a persuasive argument for the proposition that the applicant could not be criminally liable for his post-11 January conduct because a necessary element of aiding and abetting is an intention to assist in the commission of an offence (s 11.2(3) of the Criminal Code). Another argument was that the applicant had terminated his involvement and taken all reasonable steps to prevent the commission of the offence, thereby alleviating him of criminal responsibility from 11 January (s 11.2(4). 27Because of the applicant's success in respect of some other grounds it is unnecessary to review the competing arguments. It is sufficient to say that a fair reading of various comments made by the judge during the course of submissions and of his ex tempore remarks on sentence makes it plain that the judge regarded the post-11 January conduct of the applicant as being at least neutral and probably a matter taken into account in his favour. This renders it unnecessary to determine the legal question as to whether the applicant could have been criminally liable at all in respect of that conduct. 28I would not uphold this ground.

Ground 2 - Error in placing undue weight on sentences imposed in other importation cases 29It is in relation to this ground that I believe the sentence proceedings miscarried. 30The prosecutor's written submissions in the District Court annexed a schedule of three cases which were said to show "the range of penalties imposed for similar types of offences which may provide some assistance": R v Holland [2011] NSWCCA 65; 205 A Crim R 429; Chan, Lo and Nguyen v R [2010] NSWCCA 153; and N v R; AP v R [2009] NSWCCA 108. It prompted considerable discussion with the sentencing judge in the course of the prosecutor's oral submissions, most of which was concerned with the first of those cases. None was concerned with the second and there was some relatively brief mention of the third. 31The utility of referring to previous sentencing judgments was considered by the High Court of Australia in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520, particularly in the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [53]-[54] and more recently in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323 at [40]-[41] where French CJ, Hayne, Kiefel and Bell JJ stated: "The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect." (Footnotes omitted; emphasis added) 32The prosecutor contended that R v Holland "in terms of the role and what was done is comparable in many respects in terms of what was being facilitated but in terms of the starting point and the offending generally the Crown's submission is that this is a bit more serious than that when one looks at the quantities and what's involved". (AB 28.5) 33Counsel then appearing for the applicant adopted an approach of trying to persuade the judge that the present case was distinguishable from the cases referred to by the prosecutor, principally because of the applicant's voluntary cessation and coming forward to police. Senior counsel for the applicant in this Court submitted that the outcomes in other cases "had little or nothing to say about the appropriate result" and "they were entitled to no weight". It was contended that there were significant features of this case that rendered reference to any other case of no utility. 34The Crown submitted that the judge was aware of the limitations on the use of past sentencing decisions and, in any event, a complaint about a judge having placed "undue weight" on a matter is difficult to determine in isolation. Whether there was error was a matter better left for consideration in the context of ground 5 (manifest excess). 35What the judge said in his remarks on sentence about the cases to which he had been referred was as follows: "I have been provided with a number of cases as reference points. I note, obviously, that the sentencing process does not involve simply looking at a case and trying to find one which is similar and then imposing the same penalty. Rather, the cases which have been considered do provide general principles and are of assistance in determining the appropriate range. ... I have heard the Crown's submissions [as to an appropriate starting point before the application of discounts] and those of the defence and it seems to me, having regard to the starting point in the various cases which have been provided, that an appropriate starting point for [Mr W] would be one of eleven years." 36This would tend to suggest that his Honour took an unremarkable approach to a consideration of the outcomes in the cases to which he had been referred. However, it is necessary to observe that his Honour announced that he had determined upon a starting point of 11 years before he began to deliver his ex tempore sentencing judgment. The manner in which he determined it, which was erroneous in my view, is apparent from his lengthy exchanges with counsel, principally the prosecutor. 37Before turning to the proceedings on sentence it is worth being clear about the utility of doing so. "Normally this Court will not find an error of principle from interchanges between the bench and counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision": R v Pham [2005] NSWCCA 94 at [11] (Wood CJ at CL). However, there are circumstances in which there may be some utility in having regard to statements from the bench during the course of submissions; for example, when they can assist in elucidating abbreviated statements appearing in remarks on sentence: Peiris v R [2014] NSWCCA 58 at [67] (Leeming JA). In my view there is also some utility where during the course of submissions a judge exposes his or her reasoning and announces a concluded view which is ultimately maintained without any qualification of the reasoning in an immediately ensuing ex tempore sentencing judgment. 38The prosecutor contended that the "appropriate starting point would be in the vicinity of 12 to 14". There was some relatively brief discussion concerning N v R; AP v R but it was characterised as a case involving a lesser maximum penalty (25 years) and the offenders had engaged in less activity. It was noted that when this Court came to resentence it adopted starting points of 11 years for one offender and 10 for the other. 39The judge moved to a discussion with the prosecutor about what the starting point might be if he was sentencing the co-offender Thomson. The discussion was "ball park stuff" and led to an assessment of that character in the order of "maybe ... 18 to 20 range". 40At that point the prosecutor diverted the discussion to the topic of duress and to the appropriate level of discounting for the applicant's plea of guilty and assistance. The judge brought the discussion back to the topic of the starting point by wondering what it might be if the applicant had not come forward to the police: for example, "if Thomson's 20, this man not having come forward ... probably you'd be looking at a starting point more likely of around the 16. ...[T]he question then is whether I should be starting this man now at 14 or 12. I mean, with his discounts you're really talking about whether it should be 6 or 7, aren't you? ... I mean if he got six years with a 50 percent then a non-parole it would be a three year non-parole, if he got seven years it would be three and a half years." The discussion with the prosecutor came to an end in the following terms: "HIS HONOUR: Yes, well I think he, it does seem to me that probably he ends up in a position of around that 6 to 7 and I've got to decide exactly where within that, whether it is 7 rather than 6. I'll let Mr Fitzgerald see what he can convince me of, but I mean it's really about the establishing what the range is and making sure that the sentence is within that range. [PROSECUTOR]: Yes HIS HONOUR: Subjectively this man's got a fair bit going for him. But it's a serious - he's involved. His involvement is relatively, you know, sort of reasonable but the crime itself is a serious crime, that's his problem. [PROSECUTOR]: Yes, your Honour HIS HONOUR: He started his criminal career at the deep end of the pool rather than the shallow end. All right. Thank you for that Mr [Prosecutor], that was helpful." (AB 36) 41I have summarised the approach taken by counsel for the applicant earlier. When he concluded his submissions there ensued another exchange between the judge and the prosecutor about the starting point. The prosecutor sought to address an attempt by the applicant's counsel to distinguish R v Holland on the basis that the assistance there only arose after arrest. The judge interrupted to point out that the focus needed to be on the starting point before turning to consider the level of discounting. The following exchange illuminates the reasoning towards the determination of the 11 year starting point: "HIS HONOUR: What we are talking about is the starting point, isn't that the question, because I understand - well it is easier to do it that way because each of these cases will have different merits. [PROSECUTOR]: Yes. HIS HONOUR: And different entitlements to discounts but the starting point is a reflection of the level of assessed criminality, isn't it and then what you end up with is what you end up with after the particular entitlements to discount but I think the reference to Holland really was that well here was someone whose starting point was around the 12 year mark. Admittedly he had his own set of entitlements in terms of discounts. [PROSECUTOR]: Yes. HIS HONOUR: And the bottom line doesn't matter but the distinction was well if he starts at 12 for a role which appears to be at least as high if not higher than this man in the sense that he went to the other end of the deal, he went overseas and there was some evidence of him getting money like $30,000 I think but if that is the case what is being said as I understand it is that there ought to be some reflection in the starting point of the fact that he did come forward. I would have thought that it would be of benefit to the community to encourage people to come forward. In some situations which is exampled by here the fact that he came forward probably at the end of the day did not change anything from the point of view of the police investigation of him for this importation. [PROSECUTOR]: No. HIS HONOUR: But in other cases it can so that there ought to be two aspects of it, one an encouragement to people to in fact come forward so that they do know they will get a better deal and two that you should actually be giving them a better deal if they do come forward because it tends to reflect less mens rea in terms of their criminal state of mind. [PROSECUTOR]: Yes your Honour. HIS HONOUR: So if you do that I think what Mr Fitzgerald is saying is all right well if Holland starts at 12 or thereabouts this man should start lower. My view at the moment and I give you both an opportunity, my view at the moment is that the starting point for this man ought to be 11 years, with a discount that would give him five and a half and I would give him three on the bottom, that is my current thinking subject to what anybody says in terms of whether that is within the range or not but yes that is how I processed Holland and - [PROSECUTOR]: Yes your Honour. Your Honour can I just point to Holland briefly. In terms of what the role and the level on the assessment in terms of getting to that starting point in Holland from para 70 through to 73 Schmidt J outlined what was the role, what were the things that were done. HIS HONOUR: That he did, yes. [PROSECUTOR]: And it is in my submission your Honour comparable in most respects to what the offender here has done. He wasn't the organiser of the importation. HIS HONOUR: Yes I agree with that, that seemed to be so, don't have to convince me of that. The only difference really was that he went to the other end, I am not sure what that means. [PROSECUTOR]: Well he didn't do anything there in terms of those matters, he was acting on the direction of others who organised the importation from over there. HIS HONOUR: Yes. [PROSECUTOR]: What he did there the setting up of the business name and the renting of the warehouse, all those things were all the things that were done at this end for the purpose of it safely being received. HIS HONOUR: Yes, well if there is not much difference which I think you are probably right and I don't think there is much difference or the difference that might be there is not one which justifies any significant difference or approach to the penalty and if the starting point for him was 12 why wouldn't the starting point for this man be lower bearing in mind that he in fact did go to the police. [PROSECUTOR]: And there's - HIS HONOUR: Holland didn't." (AB 41-42) 42There followed a discussion with the prosecutor involving a comparison of the quantities of drugs involved in R v Holland (7.244kg of cocaine) and those involved in the present case. His Honour expressed doubt about there being much difference when both cases involved significant quantities. There was also the fact that there was no evidence that the applicant knew how much was involved. The discussion continued in that vein for a short time before the following ensued: "HIS HONOUR: Like if these two men were equal, like if you took away the come forward you would probably think the starting point for each of them would be within the same ball park notwithstanding that one has 7 and a half and one has got 10 kilos. I mean when I say the same ball park might not be exactly the same but surely the coming forward makes quite a difference to the level of criminality. [PROSECUTOR]: It is your Honour. HIS HONOUR: Like a couple of years. [PROSECUTOR]: And I accept the fact that his coming forward is a point of distinction and something quite different to the ordinary type of case and certainly these cases where persons have been apprehended. HIS HONOUR: Yes well if 12 was the starting point for Holland why would 11 be wrong for the starting point for this man, why would it be outside the range is probably the better question." (AB 44-45) 43The judge then pressed the prosecutor to respond to a question whether "starting it at 11 is outside the range". After some initial reluctance he conceded that he could not submit that it was outside the range. The judge further explained his starting point: "HIS HONOUR: ... [T]he reason I have sort of come down to that is because I have given a fair amount of credit for him coming forward." (AB 46.5) 44The judge then referred by way of analogy to the value of pleas of guilty in child sexual assault cases, saying that he thought they were "worth a heck of a lot more than Joe Bloggs pleading guilty to break, enter and steal you know when his fingerprints are found there". He continued: "HIS HONOUR: ... So in a case like this when a man actually does come forward, goes to the police and then says I will continue and be part of an ongoing controlled operation but more than that I will actually even though I know I am not protected I will continue to do what I am doing until I get protection from that there ought to be some encouragement of that and some credit for that otherwise probably his starting point would be a bit higher than Holland, it might be as you say around the 13 year mark. But I do not think knocking a couple of years off that starting point for him coming forward is unreasonable." (AB 46.20) 45The prosecutor told his Honour that he had no further submissions to make. The judge then announced that the sentence would be one of five and a half years with "three years on the bottom". The non-parole period would be "55% or something ... and the reason for that is the subjective material is reflected in that decision". 46Prior to the sentence hearing commencing the judge had been provided with all of the documentary material relied upon by the parties except for some documentation in relation to the applicant's assistance. The defence material included a psychological report, medical reports, testimonials and written submissions by the applicant's counsel. There was little attention given to the applicant's subjective case in the course of oral submissions; the only real focus upon it was in the context of counsel's submission that there should be a finding of "special circumstances" in relation to the non-parole period (although that is not a concept recognised in the applicable legislation as it is in the New South Wales sentencing legislation). 47I have set out rather lengthy extracts from the judge's exchanges with the prosecutor because they clearly demonstrate that the judge's approach in determining the starting point for the sentence was to focus on the starting point in R v Holland (12 years); assess a notional starting point by comparison of the objective criminality (arriving at 13 years); then subtract 2 years ("knocking a couple of years off") to give the applicant credit for having come forward to police; so as to arrive at a result of 11 years. He adopted the agreed combined discount of 50 per cent for the applicant's plea of guilty and assistance and arrived at a sentence of 5 years 6 months. He then took into account the applicant's subjective circumstances in arriving at a non-parole period of 3 years. 48This demonstrates an approach that has all the appearance of having been driven by a single so-called comparable case. The focus was very much confined to a comparison of the criminality in R v Holland with that in the present case. There was no process of instinctively synthesising all of the relevant objective and subjective facts and circumstances to arrive at a proposed sentence and then looking at the outcome of other similar cases that may have provided a check or yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357; Hili v The Queen; Jones v The Queen, supra. 49Two further observations should be made. Arithmetical quantification of the mitigating effect of a single feature of the case (the applicant going to the police) was erroneous: Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at [76]; Markarian v The Queen at [39]. And it is not at all clear that the personal circumstances of the applicant were taken into account in the determination of the starting point. In the process of determining it during the proceedings on sentence the judge made only the one fleeting reference: "Subjectively this man's got a fair bit going for him". 50Ground 2 should be upheld.

Ground 3 - Error in failing to have proper regard to voluntary cessation of criminal activity and reporting of the offence to the police 51For the applicant it was submitted that his voluntary withdrawal from the enterprise and his report of the matter to the police were unusual and significant matters. It was acknowledged that his Honour had referred to the report to police as being "to his credit" and that it was in the community's interest. 52Reference was made to R v Burns [2007] NSWCCA 228 where Harrison J (with the concurrence of Spigelman CJ and Simpson J) referred (at [29]) to the voluntary cessation of criminal activity as being relevant in a number of respects: it served a public policy in encouraging offenders to cease their criminal activities; specific deterrence could be given little or no weight; it was evidence of remorse, contrition and rehabilitation; and, in some cases, it may support the proposition that the offence was committed as a result of need rather than greed. 53It was put in written submissions by senior counsel for the applicant that the sentencing judge made no reference at all to specific deterrence, remorse, contrition or rehabilitation. (AWS [39]) 54For the Crown it was submitted that the judge did properly take into account that the applicant had come forward to the police and report his involvement in the offence. The sentencing remarks indicate that it was a matter he took into account as mitigating the seriousness of the applicant's offending. As was submitted in the context of Ground 1, the Crown contended that the judge took into account the applicant's post-11 January conduct as part of his assistance, not as furtherance of his offending conduct. To the extent that this ground raised a question of "weight", the Crown submitted that this was a matter best assessed in the context of Ground 5. 55In the course of the proceedings on sentence in the extracts I have set out earlier it is apparent that the judge considered that it was to the applicant's credit that he came forward a relatively short time after his involvement commenced. He considered it to be in the community's interest to encourage people to do so and that it was indicative of "reduced mens rea in the individual" (probably meaning lower moral culpability). 56I am not prepared to accept that the judge failed to have regard to the applicant's voluntary cessation of criminal activity, and his reporting of the offence to the police. However, it is troubling that the he did not express any finding about the applicant's prospects of rehabilitation or about the need, if any, for specific deterrence to be factored into the assessment of sentence. His Honour did say that he was satisfied of the applicant's "genuine remorse and contrition for his involvement in these offences" but he said that was something established by the plea of guilty. No findings as to other subjective matters or reference to various purposes of sentence were made with the exception of mention of general deterrence, no relevant prior record, good character and ill-health. 57Section 16A of the Crimes Act 1914 (Cth) sets out certain matters that a court "must take into account" (if relevant and known to the court). One of them is personal deterrence (s 16A(2)(j)). Another is the prospect of rehabilitation (s 16A(2)(n)). But the judge simply said, "The Court notes those matters which are set out in the Commonwealth legislation under s 16A which a court must take into account when sentencing a Federal offender and applies that section". Later he said, "I have taken into account all those matters set out in s 16A and I do not think it is necessary for me to go through and isolate them". 58Specific deterrence is one of the important purposes of sentencing. Often it is necessary for some weight to be given to it but not in every case. In my view, it warranted no weight at all in the present case. And in this case it was open to find that the applicant was unlikely to re-offend and had good prospects of rehabilitation. Haste in delivering a sentencing judgment cannot justify the use of shorthand expressions such as "I have taken into account all those matters set out s 16A" which do not illuminate anything of the judge's reasoning or conclusions: see, for example, R v McNamara [2005] NSWCCA 195 at [37] (Hall J) and DBW v R [2007] NSWCCA 236 at [33] (Spigelman CJ). 59I would uphold this ground

Ground 4 - Error in failing to have proper regard to duress 60It was part of the agreed facts that the applicant felt "somewhat intimidated by Thomson and his behaviour" and that he "felt pressured to carry out tasks as requested by Thomson so as not to upset Thomson". 61The summary of conversations between the applicant and the police post-11 January were said to confirm the fears genuinely held by the applicant about Thomson. The statements made by the applicant were not made with sentence proceedings in prospect. That is, they were not self-serving in order to seek some benefit; they were indicative of the predicament he found himself in. For example, in his first contact with police on 11 January he spoke of having to go through with receiving the oven as he was fearful for the safety of his family. In subsequent conversations he spoke of Thomson carrying a large flick knife and being in possession of a handgun. He believed that Thomson had a connection with the Hells Angels in Vancouver. The applicant claimed that Thomson had threatened to wipe out his entire family if he ever went to the police. 62The submissions for the applicant referred to the judgment of Johnson J in R v Tiknius [2011] NSWCCA 215 where (at [41] and [43]) his Honour identified that non-exculpatory duress may lead to findings of a reduced moral culpability, where the offending is not for greed or profit but because of threats and fear or harm, as well as a reduced likelihood of re-offending and better prospects of rehabilitation. 63It was acknowledged in the applicant's submissions that Johnson J also identified (at [50]-[51]) that general deterrence remained important in drug importation offences given that, at times, persons with submissive or compliant personalities are targeted for recruitment. But it was submitted that the duress in the present case did not call for any greater measure of general deterrence where the applicant came forward to the police before any harm inherent in the offence was realised. 64It is well apparent from the sentencing remarks that the judge accepted that the applicant's claim of duress was credible. The fact he came forward before he was aware of any police investigation supported the truthfulness of his claim to have only become involved because of the duress applied to him by Thomson. After observing that the duress was not sufficient to support a defence, his Honour made the remark about coming forward and then participating in the controlled operation being to the applicant's credit. 65As mentioned above, there were agreed facts on the issue of duress. The Crown had put in written submissions to the judge that the weight to be given to duress was "slight". Counsel for the applicant made no submission addressing that proposition. It cannot be said that the judge had no regard to duress. It really becomes a question of weight; a matter best assessed in the light of the next ground. 66I would not uphold this ground.

Ground 5 - The sentence is manifestly excessive 67Because of my view that the applicant should succeed in relation to grounds 2 and 3 it is not necessary to determine this ground. The question under s 6(3) of the Criminal Appeal Act 1912 (NSW) is enlivened: whether "some other sentence, whether more or less severe is warranted in law and should have been passed".

Whether, and if so how, to resentence 68It is pertinent to consider the submissions that were made in the context of ground 5 as they are relevant to the question of whether, and if so how, to resentence. 69The written submissions for the applicant identified what were said to be factors relevant to the assessment of sentence: the applicant had no role in bringing the drugs into the country; he provided limited assistance directed towards securing the consignment and recovery of the drugs; his involvement was over a relatively short period of time; he was acting under non-exculpatory duress; there was no evidence he stood to gain financially; he was 54 at the time of sentence with no relevant prior record; he withdrew from the enterprise and informed the police; he agreed to assist and in fact assisted the police with their investigation; he pleaded guilty; and he agreed to give evidence against others. 70The primary submission for the applicant was that neither starting points and discounts nor reference to other cases assisted the sentencing process. Where there was a maximum sentence of life imprisonment but no minimum sentence, the sentence should have been far more towards the latter. it was submitted that the starting point adopted by the sentencing judge of 11 years was unreasonable and plainly unjust by a significant margin. 71The Crown pointed to the seriousness with which the offence must be regarded when the maximum penalty of life imprisonment is borne in mind. The quantities of drugs attempted to be imported and their potential wholesale and street value were substantial. The role of the applicant in facilitating the shipment of the consignment after it arrived in the docks in Sydney to the Central Coast where the drugs could be safely removed was important. It was accepted that there was no evidence of any likely financial gain. It was also accepted that he was acting under duress but he was nonetheless willingly involved in a very serious, organised criminal enterprise and carried out a number of important tasks over a period of more than a week. 72The Crown acknowledged the various factors that stood in the applicant's favour. But the Crown contended that the judge was correct to take into account relevant sentencing principles summarised in the judgment of Johnson J in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72]. General deterrence had to be given "chief weight" and prior good character was of little weight. Stern punishment was warranted. 73As Mr Dhanji SC put it, this is a singular case. A man in his mid-fifties of prior good character became involved in a serious drug importation enterprise. He was not a principal or decision maker but did the bidding of the principal under duress. There was no evidence he stood to gain financially. He performed various acts that were important and directed towards (what was hoped to be) the successful conclusion of the importation. But after a relatively short period of involvement he thought better of it and went to the police. At what must have been at least an implicit risk to his personal safety he then continued his participation in the enterprise in order to assist the police investigation. 74In the highly unusual circumstances of this case, the applicant should not have been sentenced so as to provide an example of the consequences that might befall others who may be tempted to become involved in drug importation. In fact, he should have been sentenced so as to provide an example of what might become of someone who has the good conscience to come forward and assist law enforcement authorities in order to thwart serious criminal activity. 75There was no basis to find that the applicant might reoffend and so specific deterrence was irrelevant. There were other subjective features warranting leniency such as good character, remorse, good prospects of rehabilitation and an element of ill-health. There was also the sentencing judge's finding that the applicant would find custodial conditions more onerous than the average prison inmate. 76At the conclusion of the hearing of the application and after the Court announced that it would be reserving its judgment, Mr Dhanji SC made an application for bail which was granted: RCW v R [2014] NSWCCA 169. The Court was of the view that it was inappropriate for the applicant to remain in custody any longer. 77A sentence of 4 years is warranted but it should be reduced to the agreed extent of 50 per cent on account of the applicant's early plea of guilty and assistance to authorities. Against a head sentence of 2 years there should be a non-parole period of 1 year.

Orders 78The following orders should be made: (1) Leave to appeal against sentence granted. (2) Appeal allowed. (3) The sentence imposed in the District Court is quashed and in lieu the applicant is sentenced to imprisonment for 2 years with a non-parole period of 1 year. The sentence dates from 14 July 2013. The non-parole period expired on 13 July 2014 and the parole period expires on 13 July 2015.

ADDENDUM 79Judgment was delivered in this matter on 24 September 2014. Included in the orders was that there would be a non-parole period of 1 year. The Court's attention has now been invited to s 19AC Crimes Act 1914 (Cth) which, relevantly, provides that where a sentence does not exceed 3 years a non-parole period must not be fixed but a recognizance release order must be made. 80For these reasons, pursuant to r 50C(3) of the Criminal Appeal Rules, order 3 made by the Court on 24 September 2014 is set aside. In lieu it is ordered that: 3. The sentence imposed in the District Court is quashed and the appellant is sentenced to imprisonment for 2 years dating from 14 July 2013. The Court directs that on 14 July 2014 the appellant be released upon entering into a recognizance to be of good behaviour for 1 year until 13 July 2015 upon giving security without surety in the sum of $1.

Amendments 25 September 2014 - Anonymisation of name Amended paragraphs: 35 08 October 2014 - Addendum Amended paragraphs: Coversheet; [79]-[80] 10 October 2014 - Amended citation Amended paragraphs: Coversheet; [76] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2014

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