Regina v Mandagi

Regina v Mandagi - [2002] NSWCCA 57 - NSWCCA 2001 case summary — Zoe

[42]

39 Appeal Ground 2 reads: "The Crown's reliance on lies as evincing a consciousness of guilt, and the trial judge's directions regarding the same, gave rise to a miscarriage of justice." 40 At SU13-14 of 29/2/00 the judge gave these directions as to lies: "Now there have been, the Crown maintains, a number of lies told to investigating officers which the Crown puts forward to indicate in an accused a consciousness of guilt. However, people lie for many reasons. Innocent people can lie. A person may be embarrassed. He may be fearful, and he may lie because he can see no other way out of the situation at that stage, yet need not have done what is alleged of him. There are many many reasons why people tell lies and we have all had experience of this. It is, therefore, necessary that lies told to an investigating officer, or in court, must be demonstrated by the Crown as being told for the sole purpose of deflecting the police investigation, if they are used to show a consciousness of guilt, or to, as it were, deflect your considerations. There are four matters which the Crown must demonstrate to your satisfaction beyond reasonable doubt, before you can regard a lie as being told in the consciousness of guilt. First of all, there has got to be an assertion of fact, contrary to the truth. That must be deliberate. It must relate to a material issue, that is an important issue in the case. And it must be told solely from the motive of the realisation of guilt, and the fear of truth emerging in relation to the offence. Only where there can be no other reason to tell lies, but to stop the truth emerging, because of the realisation of guilt, can you use lies as demonstrating consciousness of guilt. 41 In response to a question from the jury, the judge gave these directions the following morning at SU 32-33 of 1/3/00: "Lies told to an investigating officer may be seen by you to indicate in an accused consciousness of guilt. However, people lie for a number of reasons, they might lie out of panic, they might lie to escape an unjust accusation, they might lie just to deflect the accusation coming their way in the hopes that it will go somewhere else, even though they be innocent. So you must understand to start with that people tell lies for a variety of reasons, all of which we, as rational human beings understand. It is therefore necessary that lies told to an investigating officer must be demonstrated by the Crown as being told for the sole and only purpose of deflecting the police investigation if they are to be used as a demonstration of guilt. There are four matters which the Crown has to demonstrate to your satisfaction beyond a reasonable doubt before you can regard a lie as being told in the consciousness of guilt. First of all, there has got to be an assertion of fact, contrary to the truth. It must be deliberate and it must relate to a material issue, one that is an important issue in the case and it must be told solely from the realisation of guilt in the teller and the fear of truth emerging in relation to the offence. Only when there can be no other reason to tell lies but to stop the truth emerging because of the realisation of guilt can you use that lie as demonstrating consciousness of guilt. That is why 'no' is only the short answer to your question. If Mr Mandagi is lying for the sole purpose of distancing himself from his involvement with the voyage to decrease his chances of being found guilty but not necessarily because he knew narcotics were on board, the answer is the jury obliged to use this as proof of guilt?' (sic - 'question'?) The answer to that is no. The only time that you can use it as assistance in the Crown case is if you are satisfied that it was told with the sole purpose of stopping the truth emerging because he realised he was guilty and then you can use it to assist the Crown case." 42 The judge next identified the lies upon which the Crown relied. The appellant contends that most if not all the lies should not have been left to the jury as capable of adding to the Crown case by evincing a consciousness of guilt and that with all of the lies there was no adequate direction in terms of the appropriate factors to take into account in determining the four matters.

[46]

(2) On pp25 & 26 (Q95) the appellant stated that the Chinese men told him firstly to sail to New Zealand but in the end they told him to come close to Australia. In his evidence the appellant said that he had always been told that the journey was to go to Australia. (See T380 - course plotted on charts led to Australia, T383-4, T385, T429). (3) On p.53 (Q185) the appellant stated that he was suspicious because they (the Chinese men) would not tell him what the goods were. [The appellant had also said that he was suspicious because there were no documents - the judge did not mention this. The appellant asked what he could do in the circumstances] He told you (the jury) now that he knew what the goods were and he says that they were the belongings of the rich Chinese man. The judge added that it was no part of the Crown case that this was correct but that was a lie he told the police to deflect them. [In his evidence the appellant said that he was told that the Chinese man would "take along" his personal belongings, which were expensive goods. The appellant said that he believed these were expensive goods; gold jewellery was indicated. The appellant was not sure that the Chinese men were telling him the truth]. (4) Question 190 (p54) - the appellant answered that "a friend had offered me (or told me) about this job." That was a lie because he was transferred with the rest of his crew from the On Shun. (5) Question 16 of interview of 19 October 1998 - the appellant answered that the Chinese man on board the Uniana told him to wait and take on food in the Andaman Sea. According to his evidence he always knew what the voyage was for and that they were waiting to take on, as he says now, a rich Chinese man with his belongings. (6) Question 211 [did you consider you were carrying drugs] - the appellant answered "we did not think what the things were". [This is a paraphrase]. He also said to the police that he had been told that it was fish food [but he added that this was said jokingly]. The judge continued, "now he maintains to you that he does know, or did know, what the goods were. They were the possessions of the rich Chinese man." (7) Question 219 - [where did you stop between Burma and Australia] - the appellant answered that they did stop. The judge continued, "You have not only his evidence but you also have the evidence of the agreed facts in which it has been agreed and has been put before you that the Pegasus Venture went out and met the Uniana and commenced to supply diesel oil." 45 While the judge was identifying the alleged lies on which the Crown relied the jury had copies of the transcripts of the two records of interview. Thus the judge did not have to summarise the questions. I have added a little detail, known to everyone at the trial, to facilitate understanding of the judge's summary.

[48]

49 In the course of summarising the evidence and putting the appellant's case in reasonable detail to the jury. The judge reminded the jury: (a) The appellant said that he did not tell the police about the rich Chinese man he had brought to Australia because he was confused. His mind was "miserable" [after what he had been told by the police]. If he had told the police and been honest with them he would have further involved himself. (b) He was arrested in the early hours of 14 October 1998, had brought the ship down to Sydney and had not had very much sleep when the police interviewed him and the record of interview was made. (c) He did not see clearly that there were black bags in the boat that went to the Australian shore because it was very dark. (d) The appellant and his co-accused had been misled by a cunning, well organised and ruthless cartel. The cartel operated on a need to know basis and the accused would not have been told truthfully what cargo the ship was carrying. If the ship or the captain and crew were apprehended the less they knew, the less they could tell. (e) The accused "lied to the police for a number of reasons. They were foreigners in a strange country. They realised that something had seriously gone wrong, when the ship was arrested, and they were told to lie down on the deck. They were told that heroin in large quantities had been imported from that ship and they were frightened that they were going to be sentenced to death. For this reason they wished to distance themselves from any involvement in that enterprise, and that is why they told the police the lies they did. Overall it was obviously a very wealthy syndicate." The crew however could be sacrificed and what they were told was that they were people smuggling. "Their motives were merely to, as it were, save their own lives, and they told these lies not in the consciousness of guilt, but out of terror." (f) In the appellant's case the fear had been compounded. He asserted that he had been told by a police officer that two persons had died in this kind of operation. 50 The judge also outlined the Crown's submissions as to lies. The Crown contended that the account of the accused that they were only told that they were going to pick up this rich man and his luggage only occurred after they had spoken to the police and that the jury were hearing this version for the first time.

[53]

55 Appeal Ground 1 reads: " the trial judge's directions regarding knowledge, for the purpose of knowing concern in the importation, were erroneous." The appellant submitted that the Crown case as to his knowledge that heroin was being imported as distinct from a person being smuggled into Australia was entirely circumstantial and that it was not clear and never explained how the factors relied upon by the Crown supported the conclusion that he knew (or believed) that heroin was being imported and that smuggling a wealthy Chinese man into Australia was not a reasonably possible explanation. 56 The judge explained what knowledge meant and how it could be proved at SU10-13: "Knowledge however to make the involvement criminal need not alone be knowledge gained from direct observation. Direct knowledge gained from observation, knowledge gained by being told or by reading or an awareness of the likelihood in the sense that there is a significant or real chance that the enterprise involved the importation into Australia of drugs are all to be regarded as knowledge for the purpose of this section. You know you have locked your keys inside your car when your slam the door and see them in the dashboard. You know you have locked your keys in your car when someone comes and tells you that you have done that because they have looked and seen the keys in the dashboard. And you know that there is a reasonable likelihood of your having locked your car keys in your car when you come back from the supermarket to the parking place and you have not got the keys with you and you know you have not put them down anywhere. Now that is a reasonable likelihood or a significant chance. All of that wide spectrum is knowledge for the purpose of this Act. But you must bear in mind that it is the knowledge in an accused person which must be proved beyond reasonable doubt by the Crown. Not what you would have known, or the reasonable person would have known, or the reasonable sailor on board the Uniana would have known, but the knowledge that can be attributed to these three individuals, separately.

[62]

61 The appellant complained that the jury was not given a circumstantial evidence direction and that the judge's light bulb analogy was the closest the summing-up came to such a direction. The appellant had submitted to the judge that if that analogy was to stand the judge should answer the question which the jury asked: "Does significant chance or reasonable likelihood mean the most reasonable alternative in the accused's mind or a reasonable alternative. For example using your light bulb analogy at what point does the person establish there is a reasonable likelihood that the problem is the wiring, is it when the light goes out and that is established as a reasonable possibility after the other options have been investigated and discluded." [sic - discarded?] The judge replied (SU.31-32): "I told you yesterday that knowledge may come to a person in a variety of ways. It may come to a person through direct observation or being told or having a belief that there is a significant chance or reasonable likelihood. They are gradations as it were of knowledge. It has to be the knowledge in each or any of these accused persons and it has to be a positive belief in a reasonable likelihood. It has to crystallise into that stage. It would have to be a positive belief in an accused that there was a significant chance that what was in the hull or what was being unloaded was narcotic goods. Nothing short of that can found a conviction." The judge asked each counsel whether they wished him to add or subtract anything. It was not suggested that he should. 62 The judge did not answer the jury's questions directly. He did not further discuss the light bulb illustration. Instead he directed the attention of the jury to the principles which should guide them. That was prudent. The penultimate and last sentences from the passage last quoted were directly in point and of much assistance to the jury. I reject the complaint that the judge should have dealt with the jury's questions in a different fashion.

[85]

75 The judge rejected the appellant's submission that he was only a worker. The judge held that to attempt to build a hierarchy or company structure of a criminal enterprise such as the present one, without the slightest evidence, was to visit a world of conjecture. The judge made this finding: "It is more to the point to say that this was a well planned, efficiently executed, criminal enterprise and of those involved who are amenable to the Australian justice system Mandagi was a pivotal figure and as such must bear much of the responsibility. Whether or not he received an amount commensurate with the risk he took is also not to the pint. It was a crime of massive proportion and he was deeply concerned in its commission." The judge held: "I have no doubt that only a harsh penalty will deter him. I have considered adequate punishment. The previous antecedents have already been set out and taken into consideration. It is quite possible he may be rehabilitated, although he appears as yet incapable of grasping the principle that there is, in a crew ( sic) of this nature, no division of moral responsibility. He still appears to see the importation as no concern of his. There is no doubt that a sentence imposed here will have a severe effect on the prisoner's family, he being the only source of income." 76 The judge accepted the Crown's submission that only a life sentence was appropriate but that a non-parole period should be set. The Crown has also submitted that if the Court considers that there are others "more deeply involved" than the appellant, then while his role and that of Chan differed, they were indistinguishable in real terms and the appellant should be sentenced on the same basis (26 years with a non-parole period of 20 years) without the discount for assistance. 77 Counsel for the appellant addressed the judge extensively on parity and the Crown had it in mind in its submissions. The judge did not deal with the submissions as to parity. 78 Counsel submitted that the judge should have addressed "more finely" the role of the appellant and evaluated where he stood in relation to the organisation for which he committed the offence. It was submitted that there was evidence available as to the appellant's level of relative involvement in the enterprise and that it should have been taken into account especially as a life sentence was being contemplated. The appellant also submitted that the reasoning of the sentence imposed on the appellant demonstrated an erroneous methodology in that it almost presumed that where a large (or, perhaps very large) quantity of prohibited narcotic was involved a sentence of life imprisonment follows. That was to attach undue importance to quantity which is only one of a number of factors.

[87]

80 The appellant submitted that, even on the Crown case the organisers of the enterprise were based in Hong Kong (or perhaps China). They provided directions to and kept in communication with Chan throughout the voyage. They organised for the transfer of the Indonesian crew from the Ah Shun to the Uniana on 14 August 1998. On the Crown case, Chan's associate, Ah Lung who was on board the Uniana, and sharing the captain's quarters with him, had $HK18 million pass through his accounts within less than a year prior to the importation. Counsel submitted that the appellant was part of a cheap compliant Indonesian crew whose maritime skills were used by those who organised, and stood to gain by the importation. This submission is probably correct. Counsel contended that the appellant was low in the hierarchy of the organisation. That is not the touchstone given the important role played by the appellant. 81 It was submitted that the appellant's role was in sharp contradistinction to a person closely concerned with an organisation which provided the chain through which the goods would pass from their initial cultivation and preparation to their destination on the Australian market. It was also a role objectively less serious than that exercised by someone in a position such as Chan, who exercised quasi initiative and control although on the case most favourable to Chan, still subject to the direction of those above him. 82 While the role of Chan was an important one and he exercised executive and directing functions, the role of the appellant was also important. As the judge remarked the appellant had a pivotal role and the venture depended on his skills and seamanship in being able to manage his crew, sail safely for long distances through troublesome areas and arrive in international waters off Port Macquarie. Effectively, he had to do all this while taking orders from Chan and Ah Lung. While the criminality of the appellant was high, it falls short of the worst case. 83 While the appellant should have stoutly resisted the temptation to become involved, he faced the problems of lack of other employment and financial difficulties. The Crown accepted that the appellant had no relevant criminal antecedents. 84 The Crown correctly submitted that it was not essential for the trial judge to identify the precise nature of the appellant's involvement for sentencing purposes: R v Olbrich (1999) 199 CLR 270 at 277, para 13. The judge rejected the appellant's account of how and when he became involved and that he was merely a worker. There was little by way of objective and reliable information as to those matters but it does seem reasonably clear that the appellant effectively had to do and did what he was told by his Chinese masters. This does not preclude protests by the appellant. It was not suggested that they interfered in matters of seamanship and the general management of the crew. They did however dictate the course taken by the ship and to the extent of supplying the co-ordinates of the positions to be taken up and arranging for the Uniana to be re-fuelled at sea. 85 The Crown submitted that it was sufficient for the judge to consider the level of responsibility the appellant assumed for the collection and safe transport of the heroin to Australia as expressive of his role. These were important matters to be considered but they have to be set against the background facts which emerge with reasonable clarity from the evidence. The Crown submitted that the judge was justified in describing the appellant as a pivotal figure in a well-planned and efficiently executed criminal enterprise. The judge put the matter slightly differently. He said that of those involved who are amenable to the Australian justice system the appellant was a pivotal figure and as such must bear much of the responsibility. Many drug ventures extend across a number of countries and involve people from different countries. In assessing criminal responsibility attention has to be focussed on what each person did and his responsibilities or lack of them. Some of those involved may not be amenable to the Australian justice system theoretically or practically. Neither a person's criminality nor his punishment should be elevated merely because the principals are not so amenable and that person is. Similarly, the person who is amenable should not bear more than his true share of responsibility. I am not sure exactly what the judge was meaning to convey by the remarks under consideration. 86 The appellant had an important role and it was pivotal to the extent that his task was to ensure the safe transport of the heroin. There was no evidence suggesting that the appellant had anything to do with the purchase of the heroin, its delivery to the speedboat in the Andaman Sea or its distribution in Australia or with any executive functions. 87 The Crown submitted that there was nothing in the judge's remarks to suggest that he gave undue weight to the quantity of heroin involved. The judge rightly referred to the quantity and its value in his remarks but those facts were not given undue weight in the judge's stated reasons. 88 The Crown submitted that it was incorrect to regard the imposition of a sentence of life imprisonment with a non-parole period of twenty five years as the maximum penalty and reserved for the worst case. The effective maximum penalty under the statute is life imprisonment with no non-parole period. The Crown pointed out that such a sentence was imposed in another trial on two co-offenders, namely the other two Chinese men aboard the Uniana whose criminality was regarded as more culpable than that of the appellant and about whom it could be said that there was an absence of matters mitigating the seriousness of the crime. 89 Parity

[88]

On 14 October 1999, consequent upon a plea of guilty, Chi Keung Chan was sentenced to thirteen years imprisonment with a non-parole period of ten years. The judge took as a starting point, having regard to the objective seriousness of the offence, a sentence of thirty-six years imprisonment. He continued: "No remissions are in force in New South Wales and in accordance with the provisions of section 16G the sentence is reduced by ten years to one of twenty six years. I would set a non-parole period of twenty years. Applying the discount of ten per cent for past assistance and plea and forty per cent for future assistance particularly in regard to the undertaking, which he has given the Crown, the sentence imposed is one of thirteen years imprisonment and a non-parole period of ten years." The judge intimated that he would have imposed a sentence of twenty-three years and six months with a non-parole period of eighteen years but for the future assistance. 90 In sentencing Chan, the judge after reviewing Chan's change of stories from that given on 14 October 1998 to that given in March 1999, said: "A combination of these two accounts supports the following findings of fact. (1) The prisoner was employed for one journey. (2) He was to be paid in a sum certain for his part in the enterprise. (3) He brought to the enterprise special skills as a speed boat driver and navigator. (4) He purchased items such as wet suits and goggles. (5) He brought on board the co-ordinates for the rendezvous at the Thai/Burma border. A piece of paper with these co-ordinates on them he had received from Fei Lo Nam. (6) He was never without money because he appeared to have outlaid cash for fares, goods and equipment purchased and was reimbursed 10,000 Hong Kong dollars. (7) He was required to negotiate with the captain who was becoming impatient at the delay at the rendezvous at the Thai/Burma border. (8) He reported the safe arrival of the cargo but apparently was to take orders from Man Chai, who had come on board with the packages, as to their proper stowing. It was clear in the conversations that Fei Lo Nam knew the layout of the ship precisely. (9) He took instructions from Fei Lo Nam and kept him informed. "

[89]

And: "It is difficult to determine with precision his position in the hierarchy of this enterprise, firstly, because he has to be believed and this is difficult and secondly, because the relationship between the captain and those who either owned, purchased or transported the heroin is not clear." 91 After weighing a number of factors the judge rejected the Crown contention that Chan was a delegate of the owners while the heroin was on board and determined to regard Chan: "As a specialist employed for one trip only with reporting duties but with no greater decision making role than the performance of his duties to load and unload the heroin ..." 92 Chan was an experienced Chinese fisherman who had worked as a trawler captain. He said that he was a very experienced sailor and navigator. He was engaged as an accomplished speedboat driver and to perform other tasks in what he knew was an illegal enterprise. The judge rejected the submission that any calculation of sentence should have as its starting point life imprisonment and that any discount could be used in the calculation of a non-parole period. The judge held that the importation of such a large quantity of heroin by the sophisticated and well organised techniques employed warranted life imprisonment. He also accepted Chan's submission that "his position was not, of those amenable to the criminal law of the Commonwealth the most serious." The Judge added: "It is necessary to look to those others amenable to the criminal law in this country to determine those most deeply involved and giving the prisoner the benefit of the doubt, he is not that person or one of those persons." 93 The materials before the judge included a statement by Chan on 19 March 1999. Allowing for some or much of it not being true it reveals that in April 1998 Chan sought work from Fei Lo Nam (Nam) knowing that it may involve smuggling people. Chan said that Nam, whose headquarters were in mainland China, told him that he had a vacancy for a speedboat driver and that he needed someone to take a very important person and his possessions to Australia. Chan was told: "...you will be taking one person and some precious luggage from a small boat to a big boat and then later take them to Australia. You will be paid $300,000 and I can give you $50,000 now." Nam did so and said that he could give Chan another fifty thousand Hong Kong dollars if Chan needed it. Nam inquired if Chan spoke Mandarin. Chan recommended Ah Lung. 94 Nam stated that he would contact Chan when there were further developments. Nam instructed Chan to buy a mobile telephone for himself and one for Nam and some phone cards including sim cards in another name. Chan was told never to purchase anything in his own name. Chan caused the cards and the mobile phones to be purchased, advised Nam, who arranged for them to be collected and Chan to be reimbursed. 95 Chan stated that in early June 1998 Nam instructed him to go to Australia to look at some beaches to see if they were suitable to get a speedboat ashore. He would be met at Sydney Airport. Chan arranged for a visa and Nam caused arrangements to be made for airline tickets. Chan collected and paid for them. They included one night's accommodation in Sydney. Chan flew from Hong Kong to Sydney. Fei Chai met him, took him to his hotel and the following morning drove him to the Port Macquarie area. Fei Chai took Chan to three separate beaches. Chan considered the first beach he saw to be the most suitable and another one to be suitable. Fei Chai took a recording from a hand held Global Positioning System (GPS) and made notes. They stayed at a local motel. Fei Chai received calls on his mobile telephone (up to 3 or 4 each hour). They returned to the beach which Chan had nominated as most suitable on two more occasions, one at night and one during the day and assessed if the conditions were any different and to observe high and low tides. Fei Chai paid for everything in cash. 96 On his return to Hong Kong Chan reported to Nam, who told him that the job would be done next month, that Chan's job was to drive the speedboat and that Ah Lung was to take care of the satellite telephone on the boat. Nam undertook to organise some special travel permits for Chan and Ah Lung and Chan gave Nam a passport photograph. Nam advised that they would be on the boat for two months and requested Chan to obtain medicines for the trip to take on the boat. Nam gave Chan a further fifty thousand Hong Kong dollars. 97 About 12 August 1998 Nam instructed Chan to buy three wetsuits, three life jackets, three pairs of goggles and some torches for the trip. He did so, except that he could only purchase two pairs of goggles. Nam, Ah Lung and Chan had dinner together that night. Nam gave a new contact pager and mobile telephone number for himself to Chan and instructed him: "Give these co-ordinates and frequencies to the interpreter when you get on the boat, he will need to give them to the ship's captain. … when you get to these co-ordinates call 'Man Chai' on the radio and someone will respond."

[91]

99 During the first 14 days of the trip Nam telephoned the Uniana everyday and enquired about its position. Either Ah Lung or Chan took these telephone calls. In the instances that Chan spoke to Nam, Chan was able to tell him of the boat's current position after studying the GPS and sometimes after consulting the appellant. Chan said that he received a telephone call from Nam that they would soon be meeting the other boat and to get ready to set down the speedboat. Chan said that he relayed this information to Ah Lung and told him to tell the appellant to make ready with the speedboat. The appellant became angry and threatened to leave if nothing happened that night. Chan said that he would let the boss (Nam) know. A short time later contact was made between the appellant, Ah Lung and a further vessel by way of a two-way radio. Thereafter the transfer of the heroin and Man Chai from that further vessel to the Uniana using the speedboat occurred. Not long after that was completed Nam checked with Chan via the satellite telephone that the "parcels" were on board. Chan was told: "...Take the black bags and the plastic bags out of your cabin and take them to Man Chai. Go and help Man Chai he knows what to do with them." Chan did as Nam instructed. The heroin was removed from the speedboat, the blocks of heroin being put in sealed plastic bags and packed in black carry bags. 100 At the trial of the appellant the evidence in chief of Chan broadly followed the terms of his statement of 19 March 1999 but much more detail was led. In the cross-examination Chan stated that when he saw the rice bags being thrown into the speedboat he knew for the first time that he was involved in prohibited drugs. He said that at his point he knew that he had been tricked. He was unable to discuss the position with Man Chai, the appellant or the crew because had did not know where they stood. Chan was cross-examined about his statement of 10 December 1999 in which he stated that during the first conversation with Nam he had said "One person for so many belongings." Chan said that the original version should be "one person with belongings." Chan said that when he enquired as to what the personal belonging of the escapee were, Nam replied "Of course valuable things. This person is escaping. Do you think he would bring rubbish along." (T113). Chan said that once the rice sacks were brought on board he looked for any chance to escape but there was no chance. He continued on with the enterprise because of fear of reprisals to himself and his family if he tried to withdraw.

[95]

105 After Nam and the appellant spoke further it was said that they had to change ship in the afternoon and that all crew members should pack their things. The appellant gave some instructions to the second officer who selected some maps and rolled them up. The crew from the Uniana transferred to the On Shun. The appellant and the crew from the On Shun then transferred to the Uniana. Chan said that he, Nam and Dai Gie transferred to the Uniana. 106 In further cross-examination Chan agreed that in his evidence on his sentencing hearing he had said that he had told the police one hundred per cent truth. He also agreed that he had said he had told the police everything he knew. Chan said that he was hesitant about disclosing what was in his last statement because he was worried about the crew facing a very harsh future. 107 Chan claimed not to be sure that the area in which he slept was the captain's quarters in the Uniana. He agreed that there was a satellite telephone adjacent to his bunk. 108 A review of the material demonstrates that Chan was one of Nam's lieutenants and that he was responsible for many of the preparatory steps of the intended voyage. He was also responsible for ensuring that the "belongings" of the escapee were safely transferred at sea at night by torchlight from the vessel that met them in the Andaman Sea to the speedboat and thence to the Uniana. Chan's reconnaissance decisions in Australia coupled with his other roles prior to and after 15 August 1998 lead to the conclusion that his measure of responsibility and culpability was at least equal to that of the appellant. When the judge sentenced Chan, the judge was not aware of all the facts and sentenced him on the basis of him having less responsibility than he actually had. This was in part due to the appellant not disclosing some facts to the judge. It happens not infrequently that, because there is no one to test adequately the story of a co-accused on a plea of guilty, all the relevant facts do not emerge and the person being sentenced receives a lighter sentence than he should. This creates problems when other offenders are being sentenced and a fuller factual picture emerges. 109 The appellant submitted that he was less culpable objectively than Chan for these reasons. Unlike the appellant, Chan was in direct and regular contact with those higher in the organisation both prior to and for the duration of the voyage. He was, even on his own account, benefiting financially far more than the appellant. Chan had received $HK100,000 and was to receive another SHK200,000 making a total of $HK300,000. There was evidence that the appellant had received $HK50,000. There was also his monthly salary of about $HK12,000 per month for some six months plus one month's extra salary. Chan was going to make about three times the remuneration of the appellant. The difference in financial reward is eloquent of Chan's standing and importance to Nam's drug trafficking activities. Chan was involved in handling the heroin on board Uniana whereas the appellant was not involved and was excluded. The appellant also relied on the other aspects of Chan's role including the recruitment of Ah Lung. 110 The appellant pointed out that the judge did not find that the appellant was more deeply involved in the enterprise than Chan. Such a finding would have been untenable. The appellant submitted that if the offence of which he was convicted was fairly able to be described as "worst category case" then Chan's offence was even more firmly entrenched within that category and he should not have received a s.16G adjustment. The appellant stressed the difference between factors mitigating the seriousness of the crime and those mitigating the seriousness of the penalty. 111 The crime committed by the appellant was a very grave one as was that committed by Chan. Both were involved over a lengthy period in the intended importation. Both the appellant and Chan had a propensity to lie and this makes sentencing more difficult. Both tried to play down their roles. Their roles were different but Chan's criminality and the appellant's criminality were about equal. Both were in difficult financial circumstances and both needed work. The financial rewards for Chan were to be much greater than those of the appellant. Even allowing for Chan's plea of guilty and his assistance to the authorities the disparity between the sentences imposed upon Chan and the appellant is marked and gives rise to a justifiable sense of grievance on the appellant's part. I have had regard to all the matters required under the Crimes Act 1914 (Cth). I have regard to the judge's starting point and mitigation calculations when sentencing Chan. After the s.16G adjustment and absent the mitigation of sentence for plea and assistance the judge would have imposed a sentence of 26 years with a non-parole period of 20 years on Chan. To achieve a reasonable parity with Chan's sentence and taking into account the high objective gravity of the appellant's offence the starting point for the appellant would be a sentence of 40 years. I regard this as the lowest permissible starting point. An adjustment under s.16G of just under one-third should be made, namely, 13 years. This reduces the sentence to 27 years. A lesser sentence would be incorrect. There should be a non-parole period of 19 years. This is not within the usual range of 60 to 66.66 per cent suggested in Bernier (1998) 102 A Crim R 44, but a little above it. However, in view of the circumstances of this case a lesser non-parole period would not sufficiently reflect the appellant's criminality and the consequent minimum period which he must serve before being eligible for parole. 112 I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal against sentence allowed. Sentence quashed. 4. In lieu of the sentence imposed, the appellant is sentenced to imprisonment for 27 years commencing on 14 October 1998 with a non-parole period of 19 years commencing that day and ending on 13 October 2017.

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