Regina v Otto

[2005] NSWCCA 333

Court of Criminal Appeal (NSW)|2005-08-23|Before: Sully J, Hidden J, Hall J

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Court

Court of Criminal Appeal (NSW)

Decision date

2005-08-23

Before

Sully J, Hidden J, Hall J

Source

Original judgment source is linked above.

Judgment (82 paragraphs)

[1]

Introduction 1 The applicant, Mr. Otto, pleaded guilty before a Local Court Magistrate to a charge that on 24 May 2004 he imported into Australia not less than the prescribed commercial quantity of cocaine; and to a concomitant charge that on the same day he had in his possession within Australia a falsified Irish passport. 2 The former of those offences contravenes section 233B (1)(b) of the Customs Act 1901 (C'th). It attracts upon conviction a penalty of, relevantly, imprisonment for life. 3 The latter of those offences contravenes section 9A (1)(f)(i) of the Passports Act 1938 (C'th). It attracts upon conviction a penalty of, relevantly, imprisonment for 2 years. 4 The gross amount of cocaine imported was 3,025.5 grams. The amount by pure weight was 2,136.8 grams. Its estimated street value as at the date of importation was a little more than $854,000. 5 The applicant was committed, on his pleas of guilty, for sentence in the District Court. He was duly presented before her Honour Judge Latham, and he then adhered to his pleas. He duly stood for sentence on 5 November 2004. He was convicted of both offences; and was sentenced thereupon to imprisonment, on the importation charge, for 14 years with a non-parole period of 8-1/2 years; and on the falsified passport charge for 1 year. The latter sentence was passed as a fixed term concurrent with the cocaine importation sentence. 6 The applicant now seeks leave to appeal against the sentence passed upon him in connection with the cocaine importation offence. His grounds are: first, that her Honour erred "in that she did not give an adequate discount for the applicant's early plea of guilty"; and secondly, that the sentence imposed was manifestly excessive.

[2]

The Material Facts 7 These are conveniently summarised as follows in the remarks on sentence: "The facts are that at about 7.30 am on Monday 24 May 2004 the prisoner, purporting to be one Thomas James Quinn born on 8 October 1972, with an Irish passport, number N601365, arrived at Sydney Airport aboard a Land Chile Airlines flight number LA 801 from Santiago, Chile. The prisoner presented that passport and incoming passenger card in the name Thomas James Quinn. In answer to the question "Are you bringing into Australia goods that may be prohibited or subject to restrictions such as any kind of illicit drugs?", the prisoner had ticked 'no'. The prisoner told an Australian Customs Service officer he had been to Sao Paulo, Brazil, for four weeks where he had travelled around and that he had come to Australia for a holiday. He also said he was carrying $600 US currency but did not have any bank or credit cards. The prisoner was selected for a baggage examination by a Customs officer. An ion scan of the prisoner's belongings produced a positive result for cocaine. During the conversation with the prisoner, when the Customs officer asked if he would consent to a frisk search, the prisoner said "Why are you picking on me. I am here for a holiday and I have done nothing wrong., why are you searching me?". After the Customs officer explained that it was because his bag had tested positive for cocaine the prisoner said "I don't understand, I don't have any drugs and my bag is brand new". Customs officers then conducted a frisk search of the prisoner which revealed that he had something concealed under his clothing. A subsequent external search revealed that the prisoner was wearing a corset under his clothing which encompassed his body between his chest and his knees. That corset contained the quantity of the prohibited drug referred to above. Australian Federal Police then attended, arrested the prisoner and cautioned him. He was taken to an Australian Federal Police office where he agreed to take part in a taped record of interview. During the interview the prisoner said his real name was Phillip Otto. His date of birth was 15 October 1976. He was a South African citizen. He had been approached by a person he did not know whilst in a South African nightclub and offered 20,000 South African rand or approximately $3,000 US dollars to import the drug. He was given an airline ticket and told to fly to Sao Paulo, Brazil, and go to a hotel. Another person he did not know met him at the hotel, put the corset on him, and gave him instructions. That person in Sao Paulo took away his South African passport and driver's licence. He does not have a contact telephone number for that person. He knew that the body pack contained drugs. He thought the drug could be cocaine or marijuana but was not sure. He knew the Irish passport he was using in the name of Thomas Quinn was false. He was instructed to attend a particular hotel in Sydney and wait for someone to contact him, and he would assist where he could but he did not know the names of people, who they were, or where they were staying. The only amendment to the contents of the record of interview that has been made in the course of the prisoner's evidence on sentence of any substance was that the prisoner acknowledged that at the time the corset was attached to his body he knew that it was a powder and that it was likely to be cocaine. After the prisoner was charged at the Sydney Police Centre he was taken to AFP Headquarters where he participated in a further record of interview. In the course of that interview the prisoner said he was told to book into a hotel in South Africa, and given money. He got a temporary South African passport. He did not make the corset containing the cocaine. He cannot remember the name of the nightclub in Johannesburg where he met the first man and that this is the first time he has done this. ………………………………. On 30 September 2004, at the prisoner's request, AFP officers attended the Metropolitan Remand Centre and conducted a taped record of conversation with the prisoner during which the prisoner provided the first names of three people suspected of being involved in illegal activities in Brazil and South Africa. These names were of little intelligence value to the AFP. They did not assist with further investigations and they did not lead to any further arrests. As I have already indicated, the prisoner gave evidence in the proceedings on sentence. He is presently 28 years of age. He confirmed that his date of birth was 15 October 1976. He said he was a South African citizen born in Cape Town, that he had not left South Africa before April of 2004 and that he had no criminal record in that country, or any other country. He indicated that his mother and father were both ill and had recently moved from their previous address in Johannesburg. He said he had two younger sisters and he had at one stage been engaged to be married. He had worked in the security industry for a time but had left that employment voluntarily in February 2004 and had gone to live in Durban. At that particular time he said he was without means and was effectively living in a shelter. He said that he met a guy named Tony who paid for his bus ticket to Johannesburg where he met another man in the nightclub referred to in the course of the record of interview. He confirmed that he did not purchase the cocaine, or make the corset, or pack the cocaine within the corset."

[3]

Ground 1: Her Honour erred in that she did not give an adequate discount for the applicant's early plea of guilty 8 The applicant puts two broad arguments: first, that her Honour erroneously reduced a proper discount by having regard in that calculation to the strength of the Crown case; and secondly, that her Honour, not having indicated what discount she was actually allowing, should be understood as not really having taken the pleas into proper consideration at all; or as having chosen an inappropriately low discount; or as having chosen an inappropriately high starting point for a putative undiscounted head sentence. 9 It is necessary to have careful regard, in connection with the first of these arguments, to what her Honour actually said. The relevant portion of the remarks on sentence reads: "The fact that the Crown called no evidence to contradict this account does not preclude an adverse finding on the question of the prisoner's credibility. I reject the submission that the prisoner was a mere courier in the sense that he played no part in the organisation of the importation. His role in the commission of this offence indicates a greater level of criminality than the naïve recruit the prisoner would have the Court accept. What position in the hierarchy of importation the prisoner occupied cannot be determined, but that should not deflect the Court from assessing the prisoner's criminality on the basis of the available evidence. The available evidence signals a level of criminality of a reasonably high order. The prisoner's pleas of guilty amount to a recognition of the inevitable, albeit they indicate a willingness to facilitate the course of justice . His belated information to police on 30 September 2004 could not be said to provide anything in the way of meaningful assistance for the purposes of justifying a discount on the sentence otherwise appropriate to the commission of these offences. The limited information provided on that day is only of potential worth, assuming the prisoner's version of events surrounding the importation is credible. I have already indicated my assessment on that score." [emphasis added] 10 A convenient point of departure for an analysis of the emphasised material in the quoted passages is the decision of this Court in Reg v Ebsworth [2002] NSWCCA 465. Wood CJ at CL says, and with the concurrence of Dowd and Bell JJ, at paragraphs 7 and 8 of his Honour's judgment in that matter: "7 It was next submitted that his Honour erred when observing, in relation to the plea, that "there was a very strong prosecution case". Had his Honour relied upon that assessment, as a matter of reducing the utilitarian value of the plea, then that would have involved error on his part, for the reasons identified in R v Parkinson [2001] NSWCCA 244 at par 24 and in R v Thomson & Houlton (2000) 49 NSWLR 383 per Spigelman CJ at pars 137 to 138. 8. His Honour did not quantify the discount given for the plea, nor was he bound necessarily to do so; that is, so long as he made it clear that the plea had been taken into account. When the relevant comment is read in context, I am not persuaded that his Honour was doing anything other than recording that the prosecution had a very strong case, as indeed it did, before going on to note that, nonetheless, from the time that the matter first came before the Local Court there had been an indication of an intention to plead. While it would have been desirable for his Honour to have explicitly stated that the plea was taken into account, and to have quantified the discount given for it, it is plain, from his concluding remark to the effect that he had applied "a degree of appropriate leniency ….. in reducing the head sentence to one of five years", that this aspect of the case was not overlooked." 11 A contrasted outcome, although not, in my opinion, an essentially different process of reasoning, is illustrated by the decision of this Court, (Studdert, Dunford and Howie JJ), in Reg v Sutton [2004] NSWCCA 225. In that case the following remarks on sentence were held to manifest error of law: "……… Evidence from a number of sources speaks of his remorse, which I accept as genuine. He entered a plea of guilty, which has some but not a lot of utilitarian value. The reality is that there was an overwhelming case against him. He is entitled however to consideration for his plea of guilty notwithstanding." 12 I dare say that a resourceful use of the internet would yield the usual wilderness of single instances falling on one or other side of the relevant dividing line. In such a situation, I must confess that my own reaction is to return to the common sense of earlier years, and in particular to some cautionary notes that were sounded almost 90 years ago by this Court, (Pring, Sly and Gordon JJ), in R v Johnson (1917) 17 SR (NSW) 481. It is the case that Johnson dealt in particular with the tendency, even then apparent, to scrutinise with semantic nicety a summing-up in a criminal trial with a jury. The essential good sense of the relevant remarks is, however, in my respectful opinion equally relevant and useful in connection with the similar scrutinising of remarks on sentence: "And we who sit here to hear criminal appeals know that there is nothing more common than for a Judge's summing-up to be microscopically examined after the trial in order to find some expression or phrase, which perhaps the Judge, if he had had time to consider, would not have used; but it is only where the Court can see that a miscarriage of justice has occurred from a mistake in the summing-up that they will set aside the conviction. For myself, I protest against such criticisms of a Judge's summing-up, because, although I have had a long experience on the Bench, I know that it is almost impossible for a Judge, either in a civil or a criminal case, to choose his words with perfect accuracy. In almost any case he is likely to make some little slip, by using an expression perhaps a little too strong or a little too weak." [17 SR (NSW) at 483, 484] 13 Looking at the present complaint in what seems to me to be a sensible way, due regard being had to context, my understanding of her Honour's remarks is that she was saying nothing more than this: "The prisoner's pleas of guilty amount to a recognition of the inevitable, but nonetheless they indicate a willingness to facilitate the course of justice and some proper recognition of that fact must be accommodated."

[5]

Ground 2: The sentence imposed was manifestly excessive 17 The correct starting point is, in my opinion, the requirement which is established by section 16A of the Commonwealth Crimes Act 1914: that is to say, that the sentence ultimately passed must be "of a severity appropriate in all the circumstances of the offence". 18 It is trite that the first step in determining "all the circumstances of the offence" is not to plunge immediately into an enthusiastic dissection of weights, measures and comparative tables; but to take, rather, a level-headed look at the relevant objective criminality. 19 There could be, surely, no sensible disputing that the objective criminality of this offender was very serious indeed. He walked into this country, deliberately and with full awareness of what he was doing, with a little over 2 kilograms by pure weight of cocaine, a drug the abuse of which causes serious damage both to the abusers themselves and to the society of which they are a part. That itself would make him justly liable, in my opinion, to severe punishment in the correctly principled assessment of which weakly indulgent views of the available subjective circumstances could have, at best, a very limited role to play. 20 That objective gravity can only be worsened, in my opinion, by the findings made by her Honour as to the applicant's actual standing in connection with the importation. The applicant submitted to her Honour that his true standing should be assessed as being that of a naïve courier. Her Honour rejected that submission; and she was, in my respectful opinion, amply justified in so doing. Her Honour rejected any suggestion that the applicant "played no part in the organisation of the importation". Once again, her Honour was, in my respectful opinion, amply justified in making, on the whole of the available evidence, such a finding. 21 It is true that her Honour did not see herself as being able to fix any more precisely the applicant's standing in connection with the importation; but as her Honour observed, and I respectfully agree, that consideration cannot be permitted to deflect attention from the fact that, on the given findings, the applicant was in a real and substantial sense a serious and significant player in a serious and significant criminal enterprise having serious and significant adverse consequences for this country and its citizens. 22 It is, of course, appropriate to factor into the assessment of objective criminality the guidelines established by the guideline judgment of this Court in Reg v Wong and Leung (1999) 48 NSWLR 340. By that reckoning the applicant's offence lies in what is described by the guidelines as the "low range commercial quantity" of cocaine. That entails a guideline sentence in the range of 8 to 12 years, but subject to the considerations explained as follows by Spigelman CJ at paragraph 141 of his Honour's judgment: "That is not to say that in particular cases, sentences outside the range would not be appropriate. It will frequently be the case, for the reasons already referred to, that a substantial degree of assistance will justify a sentence below the relevant range. There may also be circumstances in which a plea of guilty is entitled to such significant weight as to justify a sentence below the range. The range is not intended to apply to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation, to whom an increment should be applied. These factors are not intended to be exhaustive of the circumstances in which sentences outside the range will not attract the close scrutiny of this Court." 23 It is, of course, necessary to attend, also, to the proper accommodation of the applicant's pleas of guilty. That necessity engages, yet again, the guideline judgment in Reg v Thomson and Houlton (2000) 49 NSWLR 483. 24 It seems to me that the principles established by that decision:

[10]

[5] could not displace, and did not in any way purport to displace, the clear statutory obligation imposed by section 16A of the Commonwealth Crimes Act . 25 I do not believe that a fair reading of what her Honour actually said permits of an inference that she simply forgot about a Thomson and Houlton discount. I accept that it might have been better had her Honour quantified specifically what discount she had decided ultimately to factor into her "instinctive synthesis". I observe, however, that even had her Honour done that, it would be the triumph of hope over experience to imagine that the present application would necessarily not have been brought. For in the supposed case, the argument would simply have taken the quantified figure; done with it a mathematical extrapolation from the final sentence; and deduced either that the discount had been too little; or that the head sentence had been too great; or, more probably than not, both of those propositions. 26 While the law remains, as it does, that her Honour's failure to quantify precisely the intended discount is not of itself indicative of error, then it seems to me that this Court, when faced with clear and simple but brief remarks on sentence of the kind here relevant, deals most fairly and most practically with the instant case by considering, absent demonstrated patent error, whether there has been some demonstrated latent error . In other words, is the sentence which was in fact passed so plainly outside a permissible range as to manifest latent error somewhere in the supporting process of reasoning? 27 I simply cannot see that there is any warrant for so impugning the applicant's sentence on the cocaine importing count. 28 For the reasons earlier herein explained, I take a severe view of the applicant's objective criminality. I acknowledge his subjective circumstances; but this is a case, if ever there was one, when they cannot be permitted to swamp the objective criminality of what the applicant did. I reject the submission that the applicant was entitled, as of course and without qualification, to a 25 percent discount for his plea. He was entitled to a proper discount and nothing more. A proper discount in such as case as the present case must give primacy to the protection of this country and its citizens from the cold-blooded running into the country of large quantities of cocaine and of other prohibited drugs of addiction. That primacy is consonant with the clear Legislative intent as expressed in both sections 16A of the Commonwealth Crimes Act and in the maximum penalty provided by statute. 29 If I have regard to the objective criminality as her Honour assessed it; if I factor in the Wong and Leung guideline adjusted for the repeal of section 16G of the Commonwealth Crimes Act; if I allow for some measure of proper discounting and for all other relevant subjective considerations; and if I factor in an allowance, not mathematically quantified, for the plea of guilty; then I have to say that in my opinion a principled instinctive synthesis does not at all suggest to me that a head sentence of 14 years, on a scale of which the maximum point is imprisonment for life, is outside the ambit of a proper sentencing discretion, so that it could be found upon a properly principled basis that the sentence was vitiated by latent error. There is no call, that being so, to interfere with the non-parole period. This sentence is not, in my opinion, manifestly excessive.

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Addendum to Judgment 32 The approach which I have taken in the foregoing judgment did not seem to me, at the time of writing, to call for any extended discussion of the guideline judgment in Reg v Thomson and Houlton (2000) 49 NSWLR 383. Since then I have had the benefit of reading in draft the judgment that Hall J will deliver, and with which Hidden J will concur. 33 I have thought a good deal about the orders that are now to be made by majority; and, because I believe firmly that the Court of Criminal Appeal, of all Courts, should speak whenever at all possible with one voice, I have reconsidered my own judgment in the light of the reasoning in the judgments of my brethren. In doing that I have tried to bear steadily in mind the advice of Samuels JA in CSR v Bouwhuis, Court of Appeal, unreported, 23 August 1991: "I believe that members of a collegiate court have a particular obligation to accept the decisions of their colleagues and to abstain from a guerrilla warfare designed to diminish their binding authority…………………………………. The role of the judicial dissenter, after the initial protest has been made, is necessarily to maintain a silent vigil in the wings of jurisprudential history. It may remain solitary, or it may culminate in a summons to centre stage. But it does not involve denigrating the current script or booing the players." 34 Try as I have done, however, I cannot bring myself to accept that Thomson and Houlton entails that an applicant such as Mr. Otto is entitled to have, more or less as of course, a discount of 25 per cent in consideration of his admittedly early plea of guilty. 35 To say that does not imply, at least not as far as I am concerned, that I am interested in "denigrating the current script or booing the players". My concern is, rather, a misgiving that 5 years of practical experience in the application of the guideline judgment teaches that, yet again, a well-intentioned attempt to promote consistency in sentencing has become yet another forensic loom upon which seemingly endless "veils of ingenious suggestion", - (to borrow from McCardie J: see Sir Patrick Hastings, Cases in Court, p 143), - can be spun for the purpose of giving great indulgence to malefactors who have, in truth, no just entitlement to and no just expectation, of such leniency. 36 If one looks carefully at what the Chief Justice, who gave the only discursive judgment in Thomson and Houlton, actually said, then it becomes immediately apparent that the timing of the plea of guilty is not the only criterion to be considered. The Chief Justice actually said, omitting cited authorities: "154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 156. Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options. 157. There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate. 158. There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea." 37 It is, of course, the case that in a succeeding paragraph, and in the course of summarising his Honour's conclusions, the Chief Justice said: "The primary consideration determining where in the range a particular case should fall, is the timing of the plea.";

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[3} "The length and complexity" to be expected on a sensible assessment of the likely course of a full trial of Mr. Otto were of no great extent. 43 If all of those three considerations are brought sensibly to account, what possible sensible justification can there be for giving Mr. Otto a 25 per cent discount? Section 22 of the Crimes (Sentencing Procedure) Act does not require it. Neither does the guideline judgment. In truth, as I respectfully think, 5 years of forensic artifice and of creative appellate jurisprudence have glossed the guideline judgment to the point where sentencing Judges could be forgiven for taking the line of least resistance by giving 25 per cent more or less automatically upon proof that a plea was entered at the earliest practicable opportunity. That possibility risks, in my opinion, making a farce of the principle of discounting a sentence in consideration of an early plea of guilty. One does not have to agree with, or to approve in any other way, the taking of such a line of least resistance in order to sympathise properly with primary sentencing Judges who can be confident of nothing as much as that they are going to be told more often than not that they have managed, yet again, to misapply the guideline judgment. 44 Indeed, appellate jurisprudence in this area has, in my own respectful view, consistently reinforced that morale-sapping tendency. If a sentencing Judge does not give the Mr. Ottos of this world an immediate and express 25 per cent off, then the odds are that the sentence will be set aside. If the Judge does give that immediate and express 25 per cent off, then the odds are that the sentence will still be set aside because the starting point for the application of the 25 per cent was too high according to some imaginative mathematical hypothesis. 45 If the Judge states factors thought to be relevant, and then instinctively synthesises them as the method producing a final outcome, it will be said that he was not, or not sufficiently, transparent and accountable. If the Judge eschews the instinctive synthesis approach, then the more precisely transparent the reasoning, the greater the conversion of an art into a mathematical exercise which is grid sentencing by another name. 46 In a case like that of Mr. Otto, I believe that this Court should refuse to become entangled in that disheartening farrago. Mr. Otto should get something off: his case is not, on the most austere view, comparable to, for example, the case of Kalache to which the Chief Justice refers in paragraph 158 earlier herein quoted. Mr. Otto has absolutely no entitlement to 25 per cent or anything like it if the paragraph 154(ii) criterion is applied sensibly and according to its tenor. I would myself give him the minimum of 10 per cent. I would refuse to play forensic games by laying out mathematical calculations. I would use the instinctive synthesis method. That would suggest to me that a brazenly culpable objective case, coupled with what I regard as a tepid subjective case, and appropriately discounting for the plea, has attracted a sentence within the ambit of a properly principled sentencing exercise. 47 HIDDEN J: I agree with the orders proposed by Hall J and generally with his Honour's reasons. As to ground 1, I do not find it necessary to determine whether her Honour had impermissible regard to the strength of the Crown case in evaluating the applicant's pleas of guilty, although I agree with Hall J's exposition of the relevant principles. As to ground 2, I gratefully acknowledge his Honour's analysis of more or less comparable cases. I am of the view that the sentence proposed by his Honour properly reflects the gravity of the importation offence, while affording appropriate weight to the applicant's plea of guilty. 48 HALL, J: The applicant, by his application dated 19 May 2005, seeks leave to appeal in relation to a sentence imposed on him by the District Court (then her Honour Judge Latham) on 5 November 2005. The sentence related to two offences:-

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Ground 1: Her Honour erred in that she did not give an adequate discount for the applicant's early plea of guilty 65 In the sentencing judge's remarks on sentence, the only reference to the applicant's pleas of guilty appears at p.7 of the remarks on sentence. I consider that it is appropriate to extract from them the whole of the relevant passage which provides the context against which to consider Ground 1:- "I reject the submission that the prisoner was a mere courier in the sense that he played no part in the organisation of the importation. His role in the commission of this offence indicates a greater level of criminality than the naïve recruit the prisoner would have the Court accept. What position in the hierarchy of importation the prisoner occupied cannot be determined, but that should not deflect the Court from assessing the prisoner's criminality on the basis of the available evidence. The available evidence signals a level of criminality of a reasonably high order. The prisoner's pleas of guilty amount to a recognition of the inevitable, albeit they indicate a willingness to facilitate the course of justice . His belated information to police on 30 September 2004 could not be said to provide anything in the way of meaningful assistance for the purposes of justifying a discount on the sentence otherwise appropriate to the commission of these offences. The limited information provided on that day is only of potential worth, assuming the prisoner's version of events surrounding the importation is credible. I have already indicated my assessment on that score …" (emphasis added) 66 The applicant's written submissions focus upon the sentencing judge's remarks on sentence the particular statement which has been highlighted in the above extract. 67 The submissions observe that the plea of guilty was entered at the earliest possible opportunity (before the Local Court) and was adhered to after the applicant was committed for sentence. The applicant's criticisms essentially are:-

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• Although the sentencing judge did not quantify the effect of the pleas in this case on the sentence imposed, there was no obligation upon her to do so. 71 In Regina v. Speer [2004] NSWCCA 118, a not dissimilar point arose. The sentencing judge had only made passing reference to the appellant's plea of guilty but only as a recitation of the history of the matter. There was no reference from which one could determine the extent to which the plea had been taken into account in favour of the appellant. The Court in that case observed at [13]):- "… as was stated in Regina v. Thomson; Regina v. Houlton (1999-2000) 49 NSWLR 383, this can be indicative of the plea not being given weight (supra) at 419, paragraph 160." 72 A reading of that portion of the remarks on sentence which have been extracted above, seen in context, does not admit of a conclusion, in my opinion, that her Honour simply overlooked or forgot the early nature of the pleas of guilty. In this respect, I believe that the additional words "… albeit they indicate a willingness to facilitate the course of justice" does reflect her Honour's recognition of the pleas of guilty and their significance. 73 Additionally, the remarks on sentence (p.8) record that the "features referred to under s.16A" along with the objective and subjective circumstances were taken into account in the sentence determination. There is no precise identification as to which of the 13 matters set out in s.16A(2) were considered relevant. However, on the facts established in evidence and otherwise accepted I am of the opinion that the sentencing judge was, amongst other matters, adverting to subparagraph (g) of s.16A(2), namely, the fact that the applicant "has pleaded guilty to the charge in respect of the offence". 74 There is, as noted, no express statement by the sentencing judge as to what discount was in fact applied. I have closely examined the remarks on sentence to determine whether or not a reader of the remarks on sentence may imply whether a discount of or approaching 25% was allowed. I am of the opinion that there is no basis for such an implication. That does not, of course, foreclose the possibility that a discount of that order was in fact given. 75 In Thomson & Houlton (supra), Spigelman, CJ. observed at [162] that the purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. The importance of a transparent articulation of the relevant considerations underpinning the synthesising task generally referred to in Markarian (supra) per McHugh, J. at 1066 and 1067, is, similarly in my opinion, especially important, as a matter of approach, when a sentencing judge is dealing with the application of a discount for an early plea. 76 The Crown in its written submissions observes that, in the case of a Federal offender, it is the willingness of the offender to facilitate the course of justice, the acceptance of responsibility and the expression of contrition, that are each conveyed by a plea which gives rise to an entitlement to a discount for that factor: Regina v. Cameron (2002) 209 CLR 339. Whilst acknowledging this important principle, the question remains as to how one can determine what discount was applied in the present proceedings. 77 In the circumstances, I consider that this matter should be approached in the following way:-

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(b) There being no basis upon which it can be determined from the terms of the remarks on sentence what discount was or was not allowed, the question is one best examined and answered in the context of Ground 2 considered below. 78 I turn to the second criticism, namely, that her Honour erroneously took into account the strength of the Crown's case in assessing the applicant's pleas of guilty. 79 Whilst I have expressed the opinion that the highlighted sentence in the remarks on sentence extracted above are fairly to be construed as a reference and an acknowledgement by the sentencing judge of the significance of the applicant's pleas of guilty, the very same sentence does contain within it the further point of criticism that has been raised on behalf of the applicant, namely, that the reference to the pleas of guilty as amounting "to a recognition of the inevitable" contravenes the relevant sentencing principle. That particular phrase is a familiar one, having been employed by Hunt, CJ. at CL. in Regina v. Winchester (1992) 58 A. Crim. R. 345 at 350 and by his Honour in Regina v. Bishop (Court of Appeal, unreported 23 September 1996) (extracts from his Honour's judgments may be seen in the judgment of Spigelman, CJ. in Thomson & Houlton (supra) at 416). 80 In both cases, Hunt, CJ. at CL. used the phrase in reference to the strength of the Crown case in relation to the contrition element of the leniency in sentencing evidenced by a plea of guilty. The use of the phrase by the sentencing judge in the sentence reproduced, I believe, is similarly to be taken as a reference to the strength of the Crown case. However, that reference to the strength of the Crown's case appears in the context of the applicant's pleas of guilty, but without reference to its use in evaluating the contrition element, there being no specific evidence or reference to any contrition being expressed by the applicant. 81 The applicant's written submissions refer to the often quoted observations of Howie, J. in Regina v. Sutton [2004] NSWCCA 225 in which his Honour emphasised that the strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence and that it is an irrelevant factor in determining the utilitarian value of a plea of guilty. 82 In the Crown's written submissions it is suggested that the juxtaposition in the remarks on the sentence between the reference to the strength of the Crown case and the reference to the offender's willingness to facilitate the course of justice militates against the conclusion that her Honour was detracting from the discount for the plea of guilty by emphasising the strength of the Crown case. A consideration of the point leads me to the firm conclusion that the Crown's submission in this respect should not be accepted. The specific reference to the "recognition of the inevitable" is expressly linked to the applicant's pleas of guilty. However, any error in this respect does not, of course, necessarily lead to the conclusion that it ultimately means that her Honour took the approach of allowing too low a discount for the early pleas. That said, however, the statement itself does provide a reason to believe that the strength of the Crown case may have played a part in whatever discount was given. 83 On this basis, the possible influence or effect of the strength of the Crown case to the ultimate sentence imposed for the offence under s.233B(1)(b) of the Customs Act 1901 (Cth) should, in my opinion, be assessed together with the first point identified earlier in this judgment with Ground 2 of the application.

[54]

Offence Drug/ Role Discounts Original Sentence Quantity played sentence after appeal Cocaine 3,025.5 g Otto s.233B(1)(b) (gross weight) Not a mere courier. Criminality of a reasonably high order For guilty plea 14 years 10 years Customs Act1 2,136.8 g 8½ years (non-parole) 7 years (non-parole) (pure weight) Low range commercial quantity (R. v. Wong (1999) 48 NSWLR 340, 366) Mascaro- Cocaine Varillas s.233B(1)(d) Customs Act (knowingly concerned in importation) 2,969 g Principal and no stranger to drug operation Extradited to Australia. Guilty plea 17.2.2000 15 years 15 years [2002] NSWCCA 524 (pure weight) 11 years (non-parole) [reflected 1/3 off head sentence 20-24 years, ie., 14-16 years for a principal - s.16G] 10 years (non-parole) Est. street value of $406,000 to $528,380 Heroin Speer s.233B(1)(b) 3,468 g (gross weight) Low level "a fairly low level" involvement - not a bare courier Guilty plea (made quite late, 10% discount), also for youth, contrition, lack of criminal record etc., 25 years old 16 years 9 years [2004] NSWCCA 118 Customs Act 2,541 g 10 years (non-parole) 6 years (non-parole) (pure weight) Heroin10,000 g (gross weight) Gey-Houn Ra Knowingly concerned with importation of narcotics 5,689 g Major participant in position to recruit Guilty plea (10%). No evidence given by applicant 15 years 15 years [2002] NSWCCA 251 (pure weight). 10 years (non-parole) 10 years (non-parole) Est. street value $11.3 m Cocaine Gallego s.233B(1)(b) 1,676 g (gross weight) 8½ years 8½ years [2002] NSWCCA 329 Customs Act 1,114.9 g Courier Guilty plea 5½ years (non-parole) 5½ years (non-parole) (pure weight) (high range traffickable quantity - R. v. Wong (1999) 48 NSWLR 340, 366 Pereira 2.233B(1)(b) Cocaine Principal in scheme of importation and actively recruited participation of three persons Guilty plea 10 years 13 years - 1st count concurrent with 6 years, 6 months and 2nd count (aggregate non-parole period fixed of 8 years, 6 months as was also guilty of possession) (1991) 57 A. Crim. R. 46 Customs Act Import commercial quantity (6.094 kg cocaine) and possession of traffickable quantity, being 1.422 kig of cocaine Ie., three times commercial quantity 6 years (non-parole) Cocaine Bernier s.233B(1)(b) 3,600 g (gross weight) 12 years 9 years (1998) 102 A. Crim. R. 44 Customs Act 2,045 g Courier Canadian National, 47 years of age. History of drug abuse Guilty plea Offender was addicted to drugs, no prior convictions 7½ years (non-parole) 5½ years (non-parole) (pure weight) Retail value of $800,000 approx. Jiminez s.233B(1)(b) Cocaine Guilty plea 12 years 9 years [1999] NSWCCA Customs Act 3,010 g Courier Some assistance with authorities also suffered from mental condition 6 years, 8 months (non-parole) 6 years (non-parole) 7 (pure weight) Ferrer- Esis s.233B Cocaine 6 years 9 years (1991) A. Crim. R. Customs Act (Offence of having in possession without reasonable excuse a quantity of cocaine in excess of the traffickable quantity which had been imported into Australia) 1,819.8 g Courier 3½ years (non-parole) 5 years 23 (pure weight) (non-parole) (Crown appeal) Heroin Banthith- s.333B 2,775 g 12 years 12 years adawit Customs Act Import heroin (gross weight) Courier Guilty plea 8 years (non-parole) 8 years (non-parole) (CCA, 8 April 1994) 2,128 g (pure weight) Heroin Watanabe - 11½ years Watanabe - Sugahara, s.233B Watanabe - 2,106 g (gross weight) Both pleaded guilty 7½ years (non-parole) 10 years Watanabe Customs Act 1,511.2 (pure weight) Couriers 6 years (non-parole) (CCA, 16 October 1998) Import heroin Both gave assistance to authorities (a reduction of 6 months was given) Sugahara - Sugahara - 10 years Sugahara - 1,511.46 g (non-parole) 9½ years (non-parole) (pure weight)

[68]

• The weight of the cocaine in the present matter (3,025.5 grams, gross weight and 2,136.8 grams, pure weight) is less than the quantity of heroin imported in Speer (3,468 grams, gross weight and 2,541 grams, pure weight) (that is, the pure weight was 15.9% more in Speer than in the present case). 90 In the present context, it is appropriate to refer to sentencing patterns considered in Regina v. Wong (1999) 48 NSWLR 340 at 366. Spigelman, CJ. observed that these were determined primarily on the basis of existing sentencing patterns and were intended to apply to couriers and persons low in the hierarchy of the importing organisation. 91 In Wong, the range for low range commercial quantity (2 - 3.5 kilograms - cocaine) set out in the judgment of Spigelman, CJ. specified a sentencing range of between 8 to 12 years. Aside from the repeal of s.16G, there is an issue which I will discuss below as to whether the applicant can be regarded as a person low in the hierarchy of the importing organisation. If not, then the low range commercial quantity in Wong would strictly not apply. 92 Subject to the last point, the range of sentences set out in Wong at [142] may still operate as a useful guide for sentences imposed for offences of this nature, prior to the repeal of s.16G: see Regina v. Mas Rivadavia (supra) at [65]. The Crown's written submissions refer to the relevant decisions concerning the appropriate manner in which the repeal of s.16G is to be taken into account: see Regina v. Studenikin (2004) 60 NSWLR 1 at [71] per Howie, J. (with whom Grove, J. and Newman, AJ. agreed); Regina v. Dujeu (2004) 146 A. Crim. R. 123 at [43] per Smart, AJ. (with whom Hislop, J. agreed); Mas Rivadavia (supra) at [76] per Wood, CJ. at CL. (with whom Adams, J. and Smart, AJ. agreed) and Regina v. Bezan (2004) 147 A. Crim. R. 430 at [18] per Wood, CJ. at CL. (with whom Buddin and Shaw, JJ. agreed). 93 In applying the range of sentences set out in Wong in appropriate cases, it is accordingly necessary to make the appropriate upward adjustment of the sentences identified by this Court in that case. 94 The Crown accepted in its submissions that, if the applicant in fact received a discount for his plea of guilty at the maximum of 25%, then the starting point for the learned sentencing judge would have been a sentence of imprisonment of approximately 18 years and 6 months. Whilst the Crown submits that such a starting point is within the appropriate range for the offence for which the applicant was sentenced, I do not consider that reference to the approach taken in other cases and as reflected in the table of cases set out above supports that submission. 95 A finding as to an offender's position or place in the hierarchy of a narcotic drug importation operation can, of course, be important in determining the objective gravity of an offence. However, as the High Court has observed, the utility of an exercise in endeavouring to categorise the role of an offender is necessarily limited by the extent to which material facts are known: Regina v. Olbrich (1999) 199 CLR 179, 278. The High Court in Olbrich observed that s.16A(2)(a) of the Crimes Act 1914 (Cth) requires a sentencing judge to take into account, so far as "known to the court", the nature and circumstances of the offence. Often, as the Court there observed, where there is a plea of guilty and the offence has its genesis outside this country, it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia. 96 The finding made in this case "a greater level of criminality than the naïve recruit" and the sentencing judge's observation that it was not possible to determine the applicant's role or position in the hierarchy of importation, I believe, leads to the conclusion either that the applicant was at a "fairly low level" in the hierarchy (for the terms of the finding itself do not, as a matter of interpretation, necessarily preclude such a categorisation) or at a level somewhat higher than that but well short of that of a principal or of what was described in Regina v. Mas Rivadavia (supra) as "the principal's lieutenant". 97 It is, however, of some utility to undertake a comparative assessment of the sentence in this case in light of the sentences at the high end of the relevant range involving principals and major participants. In Regina v. Gey-Houn Ra [2002] NSWCCA 251, the applicant pleaded guilty to a charge of knowingly being concerned with the importation of a quantity of heroin into Australia (s.233B(1)(d) Customs Act 1901 (Cth). The gross weight was 5.689 kilograms of pure heroin (slightly in excess of five times the minimum commercial quantity). The street value was in excess of A$11 million. The maximum penalty for the offence was/is imprisonment for life. O'Keefe, J., with whom Spigelman, CJ. at Simpson, J. agreed, referred to the sentencing judge's findings to the effect that:-

[70]

• Electronic surveillance material established that his conversation revealed his knowledge of precisely the nature of his task. He was "a serious and important player" . 98 This Court characterised the applicant in that case as "a major participant" in a very large importation. He did not give evidence and gave no assistance to the investigating officers. The sentence was 15 years imprisonment with a non-parole period of 10 years. The appeal against that sentence was dismissed. 99 In Regina v. Mascaro-Varillas [2002] NSWCCA 524, the applicant was sentenced to imprisonment for 15 years with a non-parole period of 11 years. He was charged with being knowingly concerned in the importation into Australia of 2.969 kilograms of cocaine under s.233B(1)(d) of the Customs Act 1914 (Cth). 100 There was a dispute as to the applicant's role but Smart, AJ., with whom Wood, CJ. at CL. and Howie, J. agreed, stated it was clear that he was a principal in the organisation of the importation of the cocaine and was "no stranger to drug operations …" (at [57]). 101 The table of sentences set out above, including, in particular, the sentence in Speer and sentences that have been extracted into the table at the "high" end, even when allowance is made for the repeal of s.16G, provide some guidance in giving effect to the principle of proportionality as discussed by McHugh, J. in Markarian (supra) and to which I have referred in the preliminary matters discussed earlier in this judgment. 102 The information on sentencing patterns to which I have referred assists in arriving at the conclusion which I have otherwise reached, namely, that the sentence imposed in this matter was manifestly excessive. The possible failure to give full effect to a discount of 25% or a discount of that order which I consider to be appropriate could well explain the sentencing result from which the applicant seeks leave to appeal. Whether specific or patent error in this respect can be said to exist, is not a matter that calls for a definitive conclusion, given the fact that the sentence may, as I have concluded, otherwise be determined as manifestly excessive under Ground 2. 103 In determining the appropriate sentence in this case, I consider the following factors, in particular, to be relevant:-