Ground 2:
19 It is submitted that the relationship between the sentence imposed upon the applicant and that imposed on Mr Leong gives rise to a justifiable sense of grievance on the part of the applicant.
20 The Judge accepted that the applicant entered a plea of guilty at what was described as more or less the first available opportunity. The Judge did not quantify the extent of the discount allowed for the plea.
21 In written submissions the Crown noted that the ratio between the head sentence and the non-parole period imposed on the applicant and on Mr Leong differed. In the Crown's submission it is appropriate to assess the challenge that the applicant makes by comparing the respective non-parole periods and consider whether they give rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606; R v Dukino; R v Moshref [2003] NSWCCA 379 at [28].
22 The non-parole period imposed upon the applicant is one of 54 months. The non-parole period imposed on Mr Leong is one of 63 months. Looked at in this way the applicant's non-parole period may be seen to reflect a discount of 14% when compared to the non-parole period imposed on Mr Leong. The guideline judgment in R v Thomson and Houlten (2000) 49 NSWLR 383 does not have direct application to the sentencing of Commonwealth offenders. Nonetheless, the Crown acknowledged that the approach to the discount to be given in sentencing Commonwealth offenders in recognition of their willingness to facilitate the course of justice is conformable with the reasoning in Thomson. In the Crown's submission the primary consideration in determining where in the range a particular case should fall is the timing of the plea.
23 The applicant was found to have entered a plea at more or less the earliest possible time. In the Crown's submission it was reasonable, in the circumstances of this case, for the Court to find that the applicant had a justifiable sense of grievance when comparing his sentence to the sentence imposed on his co-offender. In making this concession the Crown did not concede that the sentence imposed was excessive or that it was in any other respect infected by error.
24 After sentence was imposed the applicant agreed to give evidence at the trial of Pik Thoong Leong. In written submissions the Crown observed that Mr Leong had advanced a defence at trial that is often difficult to rebut and that may have succeeded without the benefit of the applicant's evidence. This material refers to events that occurred after the date of sentence and is not relevant unless this Court comes to re-sentence upon a finding of error.
25 In light of the Crown's concession to which I have referred I consider that ground 2 has been made good and that the applicant should be granted leave to appeal. Having regard to the stance taken by the Crown I am of the view that the Court should embark upon a re-sentencing of the applicant. In addition to the material contained in the pre-sentence report, it is proper upon the re-sentencing of the applicant to take into account the assistance that he provided to the authorities, including his assistance in giving evidence in the proceedings against Pik Thoong Leong.
26 The Crown provided us with a letter of assistance signed by Federal Agent Wunsch, countersigned by Federal Agent Grenin, setting out details of the assistance provided. It is sufficient to note that the document to which I have referred provides a sound evidentiary basis for the Crown's acknowledgment that the prosecution of Pik Thoong Leong may not have succeeded without the benefit of the applicant's evidence.
27 The letter of assistance refers to the information supplied by the applicant at the time of his initial interview. He identified the hotel in Kuala Lumpur where he and Mr Leong consumed the packages containing drugs. In evaluating the usefulness of this information it is noted that the Royal Malaysian Police had established that the same hotel had been used on two previous occasions by persons who had consumed packets containing narcotics prior to traveling to Australia.
28 No additional persons have been identified as being involved in the importation as a result of the interview conducted by the members of the Australian Federal Police with the applicant. The information supplied by him was characterised as having been of low level intelligence value.
29 It is proper to take into account the assistance provided by the applicant to the authorities, being both the low level intelligence information to which I have referred and the assistance in the prosecution of his co-offender. It is a factor to which s 16A(2)(h) of the Crimes Act 1914 (Cth) directs attention.
30 In written submissions the Crown noted the community's interests in encouraging participants in a criminal activity to assist in securing the conviction of their co-offenders. It is proper to have regard to that matter and I consider the applicant is entitled to a significant discount but not one that is at the higher end of the range.
31 It is appropriate to quantify an aggregate discount that reflects both the applicant's willingness to facilitate the course of justice, evidenced by his early plea of guilty, and his cooperation with law enforcement agencies in the investigation and prosecution of the offence with which he and his co-offender were charged.
32 This is not a case in which the assistance provided by the applicant has led to the detection and prosecution of persons above him in the hierarchy of the drug importation.
33 It is to be expected that, in giving evidence for the Crown, he has placed himself at some risk within the prison community. There is nothing to suggest that this latter consideration is of greater prominence in this case than might be expected in any case in which a prisoner gives evidence on behalf of the Crown at a criminal trial.
34 I consider it appropriate to allow an aggregate discount of approximately 35% reflecting both the plea of guilty and the assistance to the authorities. This is not a case in which there is any question of a discount to reflect future assistance. Any greater discount in the circumstances of this case would produce a result that, in my view, would not be proportionate to the gravity of the offence of importing a substantial quantity of heroin into Australia.
35 It is necessary to take into account the considerations to which s 16A(2) of the Crimes Act directs attention. I have already referred to the nature and circumstances of the offence. The Judge was satisfied that, on balance, the applicant had established that his role in the commission of the offence was that of a courier. I consider that finding to be the appropriate one and would approach the re-sentencing upon the same basis. The offence does not form part of a course of conduct but was correctly characterised by the Judge as being a one-off offence.
36 The applicant has, by his plea and assistance to the authorities, demonstrated contrition. That circumstance is reflected in the aggregate discount to which I have referred.
37 I take into account the applicant's prior good character. The other considerations to which s 16A(2)(m) of the Crimes Act directs attention do not give rise to matters that require particular consideration in the circumstances of this case.
38 The applicant is a person whose prospects of rehabilitation should be assessed as reasonable. There is nothing in the evidence to suggest that the Court should have regard to the probable effect of the sentence on the applicant's family or dependants.
39 It is appropriate to take into account the sentence imposed on Pik Thoong Leong by his Honour Judge Woods. The Crown has not brought a challenge against it.
40 In the circumstances I consider that a sentence of eight years prior to a discount of the order of that to which I have referred is an appropriate starting point. For these reasons the orders that I propose are as follows: