[5] Those three lines of defence, as I have described them, are both independent and inter-dependent. For example, it is now well established in Australian law that it is not the province of the Courts to intrude upon the function of the Executive Government to which reference has been made in paragraph [4] above. By the same token, there is not much point in the passing by the Courts of appropriately severe sentences of imprisonment, if the offenders have reason to think that, provided they cause no trouble while in custody, they will be permitted to pursue, with real prospects of success, some woolly-minded proposition that their enforced residence in this country has somehow generated some legitimate expectation that they will be permitted to remain at large in the Australian community.
12 The first ground of appeal has not, in my opinion, been made good.
13 The second ground of appeal asserts that the learned primary Judge failed "……….. to give any or adequate weight to evidence before him to the effect that the information given by …….(the applicant) …… had been of some assistance to the authorities". A document dated 23 January 2003 was placed before the learned sentencing Judge, and was made available to this Court in the course of the hearing of the present application. It is not expedient to recount the fine detail of what is said in the document. It suffices to say that it is clear from the terms of the document that any assistance given by the applicant to relevant law enforcement agencies was of low-level intelligence value.
14 Complementary to that assessment is the fact, upon which I have earlier remarked, that the applicant attempted throughout the entire course of his dealings with the relevant law enforcement authorities to bargain his way out of the predicament in which he found himself. It seems to me that a fair reading of the records of the interviews held with the applicant justifies a conclusion that the applicant continuously backed and filled in his continuing attempts to strike a bargain that would keep him, as he appears to have hoped might be achieved, out of gaol. On some occasions the applicant offered assistance in return for the assistance of the authorities. On other occasions the applicant refused to answer questions, or gave dismissive answers, in a context from which the inference might fairly be drawn that he was trying, in a street-wise kind of way, to play, so to speak, a game of cat and mouse with the authorities, until such time as he might be satisfied that he could strike in fact the kind of bargain for which he was so obviously aiming.
15 Judge Christie himself dealt with this aspect of the applicant's case by saying:
"He has never identified, in any real sense, anybody involved in this enterprise, not even by way of any meaningful description and I regard the assistance, such as it was, that he has given the authorities as virtually useless."
16 The findings of fact which are embodied in that statement of his Honour were, in my respectful opinion, plainly and amply open to his Honour on the whole of the available evidence. In those circumstances, it is in my opinion quite misconceived to suggest that the applicant did anything entitling him to a distinct and significant discounting of sentence by reason of assistance volunteered to law enforcement authorities. That conclusion is amply supported, in my opinion, by the decision of this Court, (Gleeson CJ, Meagher JA and Hunt J), in R v Gallagher [1991] 23 NSWLR 220; see in particular per Gleeson CJ at 227E-228B, and 230B-D.
17 This ground of appeal, also, has not, in my opinion, been made good.
18 The third ground of appeal asserts an error "……..in failing to consider ……(the applicant's)…… need for rehabilitation in fixing the non-parole period, by reason of the likelihood of his deportation".
19 The portion of the remarks on sentence which gives rise to this ground of appeal reads:
"Immediately upon his release he will be deported to Malaysia, at the end of his non-parole period, and I do not know what fate awaits him there, I do not imagine he knows either. But it takes away any real need to consider his rehabilitation after his release because it is really way beyond the control of anybody in authority in this country, so that the length of his parole is really not my business, in any practical sense."
20 Judge Christie, in sentencing the present applicant, was sentencing a person who had been convicted of a Federal offence. The relevant provisions of the Crimes Act 1914 (Commonwealth) therefore applied. Included in those provisions is section 19AK which provides:
"Where a person is convicted of a Federal offence, a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia."
21 It can be acknowledged at once that it would have been an error of law for his Honour to have taken the approach that he either could not, or would not, fix a non-parole period because of the likelihood of the applicant's deportation from this country after his having served such a sentence of imprisonment as might be passed upon him: see The Queen v Shrestha [1991] 173 CLR 48 per Deane, Dawson and Toohey JJ at 70-71. His Honour did not, however, take that erroneous approach. His Honour's approach was, rather, that of setting the non-parole period discarding the need to consider the appropriateness of any more lenient non-parole period, because "the length of his parole is really not my business in any practical sense".
22 This latter perception of his Honour was, in my respectful opinion, erroneous. His Honour having decided, correctly, to set a non-parole period at all, he was obliged, conformably with ordinary principles of sound sentencing, to consider in a discerning way what the evidence suggested to be appropriate in the matter of a non-parole period in the circumstances of the individual case with which his Honour was dealing.
23 Since his Honour did not in fact make such an assessment, the present argument for the applicant must be in essence an argument to the effect that, had such a discriminating consideration been given to the assessment of an appropriate non-parole period, then a period more favourable to the applicant than the period fixed by his Honour must have resulted.
24 I am wholly unpersuaded that such is the case. It is well established law that in a case of the present kind the conventional range of subjective factors is, at least generally speaking, of very much less weight than might be the case in the context of a different kind of criminal offending: see R v Klein [2001] NSWCCA 120 per Wood CJ at CL at [24].
25 There was tendered to the learned sentencing Judge a psychological assessment prepared at the instance of those who represented the applicant before Judge Christie. The final recommendations in that report are as follows:
"As noted above, Mr. Chew responds positively in a structured and stable environment. He appears to be coping reasonably well since his incarceration because of the type of structure this setting provides. However, given Mr. Chew's poor coping skills, continued placement within the gaol system will inevitably lead to institutionalisation and vulnerability to a violent peer group. In turn, proximity to such an abusive peer group may increase his vulnerability to their influence and hence the risk of re-offending. It is recommended where possible that he be placed on a community based order, or period of parole as he is likely to respond well to the conditions of such an order. He wishes to return to Malaysia as soon as possible and implementation of such an option will lessen the risk of re-offending. Mr. Chew may also benefit from referral to a welfare agency as appropriate to his background, which may be able to provide support to he and his family if he is to be returned into the community."
26 The first thing to be said about those recommendations is that they proceed, necessarily and not at all unusually, upon the basis of information supplied largely by the offender himself. That consideration does not automatically invalidate the particular conclusions; but it does entail the need for a sentencing Court to be properly cautious in simply accepting and acting upon the recommendations.
27 The second thing to be said about the recommendations is that, in my opinion, no responsible sentencing Court could give effect to them in a case of the present kind. As previously explained, the applicant committed, brazenly and deliberately, a serious breach of Australian law. What he did had the potential, had he not been detected immediately upon his entry into this country, to put into the domestic Australian drug trafficking market a quantity of heroin sufficient to cause a significant measure of degradation and damage to a number of members of the Australian community. He was entitled to have a non-parole period set, unless the Crown established facts and circumstances of such particular gravity as took his case quite outside the general run of comparable cases; and the Crown did not contend either at first instance or before this Court that the applicant's case was a case of that particular kind. The applicant was entitled to have a non-parole period set, if at all, without reference to any likelihood of his future deportation. He was entitled, accordingly, to have his non-parole period set at the generally accepted level, unless he established on the probabilities facts and circumstances justifying a longer non-parole period. This, in my opinion, he plainly failed to do. It would be, in my opinion, entirely contrary to principle, and entirely contrary to the proper protection of the public, to give even the slightest encouragement to a view that a person who runs heroin into this country should be given a more lenient non-parole period because it would be more agreeable to him and for him that he be "returned into the community" with the provision of "support to he and his family" (emphasis added) to be paid for, of course, out of the pockets of the very people whose laws he has flouted and whose well-being he has willingly put at risk.
28 The present ground of appeal has, in my opinion, been made good in the sense that it is at least fairly arguable that error has been demonstrated in the approach taken by the sentencing Judge to the fixing of a non-parole period. That is, however, only to raise for consideration the question contemplated by section 6(3) of the Criminal Appeal Act 1912 (NSW): that is to say, the question whether another and more lenient sentence is warranted in law. It will be apparent from what I have earlier written that, in my opinion, it is not.
29 In my opinion the Court should order: