REGINA v WONG & LEUNG

REGINA PARTIES : Nelson Tak Fat WONG Jackie Kai Chu LEUNG JUDGMENT OF : Spigelman CJ at 1; Mason P at 187; Simpson J at 188; Sperling J at 194; Barr J at 195

LOWER COURT JURISDICTION : District Court 98/11/0132 LOWER COURT FILE NUMBER(S) : 98/11/0134 LOWER COURT JUDICIAL OFFICER : Davidson DCJ

P Byrne SC (Wong) COUNSEL : G D Wendler (Leung) P S Hastings QC / F A Veltro (Crown) J Basten QC (Cth Attorney-General) M G Sexton QC (NSW Attorney General) Hovan & Co (Wong) SOLICITORS : Van Houten (Leung) Commonwealth DPP (Crown) I V Knight (NSW Attorney General) CATCHWORDS : CRIMINAL LAW - particular offences - drug offences - drug importation, s233B Customs Act 1901 (Cth) - heroin and cocaine; CRIMINAL LAW - SENTENCING - sentencing guidelines - jurisdiction of appellate court to issue guidelines - exercise of federal judicial power - "matter" within s75 and s76 of the Commonwealth Constitution - alleged inconsistency with s16A of the Crimes Act 1914 (Cth); CRIMINAL LAW - SENTENCING - sentencing guidelines - difference of approach within the Court of Criminal Appeal - Ferrer-Esis guideline - correctness of Bernier - sentencing statistics - no pattern of inconsistency or manifest inadequacy - prevalence of the offence - objective of general deterrence ; CRIMINAL LAW - SENTENCING - sentencing guidelines - objective seriousness of the offence - quantity of the drug - role of the accused in the criminal organisation - type of guideline - structured by reference to quantum - 'bottom up' guideline - mitigating factors - assistance to authorities - plea of guilty - guideline applicable to couriers and persons low in hierarchy of the organisation; CRIMINAL LAW - SENTENCING - crown and severity appeals - considerations of parity - delay in the institution of Crown appeal Customs Act 1901 (Cth) Crimes Act 1914 (Cth) ACTS CITED : Criminal Appeal Act 1912 (NSW) Family Law Act 1975 (Cth) Criminal Code (Qld) Supreme Court Rules 1970 (NSW) DECISION : Crown Appeals Upheld

IN THE COURT OF CRIMINAL APPEAL 6 0834/98 60069/99 60068/99 SPIGELMAN CJ MASON P SIMPSON J SPERLING J BARR J Thursday 16 December 1999 REGINA v Nelson Tak Fat WONG REGINA v Jackie Kai Chu LEUNG

Held: A. Guideline Judgment

1. Jurisdictional challenge (a) The formulation of principles and guidelines, including the identification of quantitative aspects of sentence decisions, falls within the express statutory authority stipulated by s5D and s12 of the Criminal Appeal Act 1912 (NSW).

Appellate courts by their nature may lay down guidelines for the exercise of discretions. (See Norbis v Norbis (1996) 161 CLR 513; R v Henry [1999] NSWCCA 107, (1999) 46 NSWLR 346, at [13] - [21]; R v Jurisic (1998) 45 NSWLR 209 at 217-220).

(b) The Court, exercising its discretion under s5D of the Criminal Appeal Act, is empowered to "impose such sentence as to the said court may seem proper". The identification of what is a "proper" sentence for the offences under consideration necessarily, or at least permissibly, involves the identification of what is, or should be, the appropriate pattern of sentencing for this offence. Where it is of such direct applicability to the case before the Court, the identification of an appropriate sentencing guideline satisfies the conception of a "matter" within s75 and s76 of the Constitution.

Obiter. It may be that a more teuous association between a guideline judgment and the facts and matters in issue in a particular case would be sufficient to establish the requisite constitutional connection. The reasoning in Mellifont v the Attorney General (Qld) (1991) 173 CLR 289 at 304-305 suggests that reference to materials, including crime statistics and victim surveys is permissible even if it does not impinge directly on the case or cases before the Court.

(c) There is no relevant inconsistency between Part 1B, specifically s16A, of the Crimes Act (Cth) and the Criminal Appeal Act. The guidelines promulgated by the Court are indicative only. They do not restrict the ability of the sentencing judge to implement any aspect of Pt 1B, or to otherwise give full force and effect to the Commonwealth statutory scheme. (See Jurisic at 220; Henry at [25]-[30], [42]).

2. Sentencing pattern This Court set out a guideline for this offence in R v Ferrer-Esis (1991) 55 ACrimR 231.

The material before the Court supports the conclusion to which this Court came in both R v Lawson (1997) 98 ACrimR 463 and Bernier, to the effect that the range suggested in Ferrer-Esis has tended to be imposed for low range commercial quantities, rather than for high range trafficable quantities, although there is an overlap between the two ranges.

The outcomes from Courts of Criminal Appeal in other States are broadly confirmatory of the position in New South Wales, although there may be some need for firming up of sentences at the top of the low commercial quantity range. It is desirable that the respective State courts invested with federal jurisdiction to hear prosecutions for Commonwealth offences, approach the sentencing task with an element of harmony. This is required by Part 1B of the Crimes Act (Cth). (See Medina v The Queen (1990) 108 FLR 288 at 292-293; Krasnov & Shlakht (1995) 82 ACrimR 92 at 95). Absent the operation of permissible local factors, similar result should follow from the application of "uniform sentencing principles": Leeth v The Commonwealth (1991-92) 430 at 476.

Neither the Judicial Commission's report, Sentencing Drug Offenders (August 1999), which analysed sentences imposed in higher courts of NSW, from 1 January to 31 December 1997, nor the Commission's Sentencing Information System statistics regarding drug offences under s233B of the Customs Act, finalised in higher courts, for the period of January 1990 to December 1998, identify a pattern of inconsistency of approach in sentencing drug offenders which would justify correction by an appellate court.

The statistics kept by the Judicial Commission show that non-custodial sentences are, appropriately, truly exceptional and that there are very few short custodial sentences. The statistics do not suggest manifest inadequacy in the sentences imposed by the courts. The terms set for offences involving trafficable and commercial quantities of heroin and cocaine, show that the length of the terms of imprisonment actually imposed by trial judges do accord with the seriousness of these offences.

The judges of this State are aware of the exceptional threat to our society that is posed by large scale drug use. In the case of drug importers and their accomplices, who are motivated by greed, the judiciary speaks with one voice.

In such circumstances, the considerations relating to inconsistency and to systematic inadequacy of sentences to which reference is made in Jurisic and Henry as justifying a guideline judgment, do not arise.

3. Promulgating a guideline It is appropriate for the Court to promulgate a comprehensive quantitative guidelines for an offence for which a relevant guideline has long existed and, it appears, has proved to be of utility to sentencing judges throughout Australia. This is the Ferrer-Esis guideline.

There are two additional reasons for promulgating a quantitative guideline. First, by providing guidance to trial judges it is less likely that sentences will be imposed which suggest a need for appellate review. Secondly, the clear promulgation of likely actual sentences will assist the objective of general deterrence. Guideline judgments are a mechanism for increasing the efficiency of the transmission of knowledge about actual sentencing practice. (See Henry at [41], [205] - [211]; Police v Cadd (1997) 94 ACrimR 466 at 511; Spigelman "Sentencing Guideline Judgments" 11 CICJ 5 at 10-11; 73 ALJ 876 at 880-881). See also R v Tait (1979) 46 FLR 386 at 399.

The quantity of drugs involved is an exceptionally importance aspect of the objective seriousness of the crime. However, it is not determinative of the appropriate sentence. Other aspects of the crime, including objective and subjective considerations, remain relevant in the exercise of the sentencing discretion. One such factor is the role of the accused in the organisation, if any, which imports the drugs into Australia.

The importance of quantity, as confirmed in the structure of the statutory scheme, indicates that any guidelines should be structured by levels of quantum. As there are other relevant considerations, sentencing ranges for successive quantity ranges will necessarily overlap.

In the present case, it is appropriate to adopt a 'bottom up' system of guidelines which does not contain any significant prescriptive element. The judgment of trial and appellate judges, in the absence of any apparent inadequacy of outcomes, and insofar as a discernible pattern has emerged, should be validated by the Court.

The following guideline is promulgated. It is intended to be apply to couriers and persons low in the hierarchy of the importing organisation. It is not intended to apply to a person high in the hierarchy, to whom an increment should be applied. Low level trafficable quantity - 5 - 7 years (2gms - 200gms) Mid level trafficable quantity - 6 - 9 years (200gms - 1kg) High range trafficable quantity - 7 - 10 years 1kg - 1.5kgs (heroin) 1kg - 2kgs (cocaine) Low range commercial quantity - 8 - 12 years 1.5kgs - 3.5kgs (heroin) 2kgs - 3.5kgs (cocaine) Substantial commercial quantity - 10-15 years (3.5kgs - 10kgs)

B. Individual Appeals The sentences his Honour imposed were lower than the least sentence that could properly have been imposed in each case. Wong and Leung were major participants in a very large importation. The head sentences and the non parole periods of twelve years are manifestly inadequate. In each case the least sentence that should have been imposed is an additional two years on both the head sentence and on the non-parole period. ORDERS Leung

1. Crown appeal upheld.
2. Sentence quashed. In lieu thereof the Respondent is sentenced to imprisonment for fourteen years with a non-parole period of nine years commencing on 8 November 1997. Wong
3. Crown appeal upheld.
4. Sentence quashed. In lieu thereof the respondent is sentenced to imprisonment for fourteen years with a non-parole period of nine years commencing on 8 November 1997. IN THE COURT OF CRIMINAL APPEAL 60834/98 60069/99 60068/99 SPIGELMAN CJ MASON P SIMPSON J SPERLING J BARR J Thursday 16 December 1999 REGINA v Nelson Tak Fat WONG REGINA v Jackie Kai Chu LEUNG

1 SPIGELMAN CJ: The Court has before it two appeals by the Crown against the alleged leniency of sentences for the offence of being knowingly concerned in the importation of a prohibited import, namely heroin, contrary to the provisions of s233B of the Customs Act 1901 (Cth). A third appeal in the case of Law abated when the Respondent died after judgment was reserved. 2 The Respondents Leung and Wong appealed against their conviction. By judgment of 15 September 1999 that appeal was dismissed by three members of this Court (R v Leung & Wong [1999] NSWCCA 287). Wong sought leave to appeal against the severity of his sentence. However, no submissions were directed to that application. Senior counsel who appeared for Wong confined himself to responding to the Crown appeal on sentence. 3 In the context of the appeal against the alleged inadequacy of the three sentences, the Director of Public Prosecutions has submitted that it is appropriate for this Court to issue, with respect to s233B(1)(d) of the Customs Act, a guideline judgment in accordance with the current practice of the Court. (See R v Jurisic (1998) 45 NSWLR 209; R v Henry [1999] NSWCCA 107; (1999) 46 NSWLR 346). The Attorney General for New South Wales intervened to submit that the Court may consider the formulation of sentencing guidelines in the course of determining these appeals. 4 The starting point of the Crown submissions was the decision of this Court in R v Ferrer-Esis (1991) 55 ACrimR 231 in which Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed, set out a form of sentencing guideline for the offence presently under consideration. 5 In Bernier v R (1998) 102 ACrimR 44, this Court, in a joint judgment of Smart, Studdert and Hidden JJ, made some observations about the continued applicability of the form of guideline suggested in Ferrer-Esis. The reasoning in Bernier has been subject to commentary and subsequent decisions of the Court, to which I will presently refer. Those decisions suggest a difference of approach within the Court which, the Crown submits, should be resolved by a guideline judgment.

The Statutory Regime 6 Subsection 233B(1) provides as follows: "(1) Any person who: (a) without any reasonable excuse (proof whereof shall lie upon him) has in his possession, on board any ship or aircraft, any prohibited imports to which this section applies; or (aa) without reasonable excuse (proof whereof shall lie upon the person) brings, attempts to bring, or causes to be brought, into Australia any prohibited imports to which this section applies; (b) imports, or attempts to import, into Australia any prohibited imports to which this section applies or exports, or attempts to export, from Australia any prohibited exports to which this section applies; or (c) without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act, or (caa) without reasonable excuse (proof whereof shall lie upon him) conveys, or attempts to convey, any prohibited imports to which this section applied which have been imported into Australia in contravention of this Act; or (ca) without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which are reasonably suspected of having been imported into Australia in contravention of this Act; or (cb) conspires with another person or other persons to import, bring, or cause to be brought, into Australia any prohibited imports to which this section applies or to export from Australia any prohibited exports to which this section applies; or (d) aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies, or the exportation from Australia of any prohibited exports to which this section applies; or (e) fails to disclose to an officer on demand any knowledge in his possession or power concerning the importation or intended importation, or bringing or intended bringing, into Australia of any prohibited imports to which this section applies or the exportation or intended exportation from Australia of any prohibited exports to which this section applies; shall be guilty of an offence. 7 Subsection 233B(3) provides: "(3) A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by s235." 8 Section 235 distinguishes between trafficable quantities and commercial quantities. In a Schedule to the Act, a number of narcotic substances are listed, specifying in respective columns the amount of a "trafficable quantity" and the amount of a "commercial quantity". In the case of cocaine, trafficable quantity commences at 2.0 grams and the commercial quantity commences at 2.0 kilograms. In the case of heroin, trafficable quantity also commences at 2.0 grams, however the commercial quantity commences at 1.5 kilograms. 9 Subsection 235(2)(c) provides: "235(2)(c) Where the court is satisfied: (i) that the narcotic goods in relation to which the offence was committed (A) are a narcotic substance in respect of which there is a commercial quantity applicable; and

(B) consists of a quantity of that substance that is not less than that commercial quantity; or (ii) that the narcotic goods in relation to which the offence was committed consists of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance and also that, on a previous occasion, a court has: (A) convicted a person of another offence, being an offence against a provision referred to in par (a) that involved other narcotic goods which consisted of a quantity of narcotic substance not less than the trafficable quantity that was applicable to that substance when the offence was committed; or (B) found, without recording a conviction, that the person had committed another such offence; imprisonment for life or such period as the court thinks appropriate." 10 It is plain that the Parliament intended that sentences for this offence should have a deterrent effect. This appears from the severity of the maximum sentence of imprisonment for life. It also appears from the equation in subpar 235(2)(c)(ii) of a second offence for the lower quantity with a first offence for the higher quantity. 11 Subsection 235(2)(d) provides: "235(2)(d) Where the court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to the substance but is not satisfied as provided in par (c): (i) if the narcotic substance is a narcotic substance other than cannabis - a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both; or …"

The subsection goes on to make provision for the case of cannabis. 12 In other cases, including with respect to amounts less than a trafficable quantity, the offence carries a fine not exceeding $2,000, or imprisonment for a period not exceeding two years (subs 235(ii)(e)). 13 Furthermore in the case of a first offence for a trafficable quantity, if the court is satisfied: "… that the offence was not committed by the person charged for any purposes relating to the sale of or other commercial dealing in, those narcotic goods."

then the punishment is also a maximum of $2,000 or imprisonment for two years (subs 235(3)).

Jurisdictional Challenge 14 The Respondents challenged the jurisdiction of the Court to issue a guideline judgment with respect to Commonwealth offences on three different bases:

(i) Section 5D of the Criminal Appeal Act 1912 does not authorise the promulgation of a sentencing guideline.

(ii) The judicial power of the Commonwealth does not extend to the promulgation of a sentencing guideline, because there is no "matter" within s75 and s76 of the Constitution.

(iii) There is an inconsistency between s16A of the Crimes Act 1914 (Cth) and this Court's power to promulgate a guideline, within the meaning of s109 of the Constitution. 15 The first submission focused on the position of this Court as a statutory court of specified jurisdiction. Part 3 of the Criminal Appeal Act identifies a number of different circumstances in which appeals lie to the Court. In the three cases now before the Court, the Commonwealth Director of Public Prosecutions has invoked s5D. This section falls to be construed in its context which, relevantly, is the creation of a court of criminal appeal. The nature and purpose of such a court encompasses the identification of sentencing principles and formulation of guidelines about the exercise of the sentencing discretion by trial judges. 16 There is a significant body of authority for the proposition that appellate courts may lay down guidelines for the exercise of discretions, both statutory and non-statutory. I refer in particular to Norbis v Norbis (1996) 161 CLR 513. A range of other cases, including decisions of the High Court, are summarised in Henry at [13] - [21]. It is unnecessary to repeat that analysis here. Furthermore, as indicated in Jurisic (at 217-220), courts of criminal appeal have frequently stated principles of general application with respect to appropriate sentences for particular offences. The step of promulgating a guideline in quantitative terms is a logical development of what such courts have long done. 17 The words of s5D, construed in their context, are reinforced by the express words of s12 of the Criminal Appeal Act, which confer additional powers on this Court, including: "12 The court may, if it thinks it necessary or expedient in the interests of justice … exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters …" 18 The formulation of principles, including the identification of quantitative aspects of discretionary decisions, for the guidance of first instance judges who exercise a discretion, falls within this express statutory authority. 19 The second jurisdictional submission on behalf of the Respondents focused on the concept of "matter" within s75 and s76 of the Commonwealth Constitution. By s68(2) of the Judiciary Act 1903 (Cth), this Court has a federal jurisdiction "with respect to the hearing and determination of appeals" in relation to offences against Commonwealth statutes being a "like jurisdiction" that it has with respect to State offences. (Section 38 may also be applicable with similar effect). The construction of s5D in its context, to which I have referred with respect to the first jurisdictional submission, would apply to the exercise of federal jurisdiction, unless that jurisdiction was limited in some manner which was not applicable to State jurisdiction. 20 It has long been accepted that the concept "matter" within s75 and s76 of the Constitution means that the judicial power of the Commonwealth is a narrower concept than judicial power in its natural and ordinary meaning. (See eg Kable v Director of Public Prosecutions (1995-96) 189 CLR 51 at 136-137 per Gummow J; Re Wakim; Ex parte McNally (1999) 73 ALJR 839 at [10] per Gleeson CJ). 21 Gleeson CJ and McHugh J said, in a recent articulation of what is encompassed within the concept of a constitutional "matter", in Abebe v The Commonwealth (1999) 73 ALJR 584 at [25]: "A 'matter' is therefore ordinarily concerned with 'some immediate, right, duty or liability to be established by the determination of a court' [ In Re Judiciary & Navigation Acts (1921) 29 CLR 257 at 265]. … Since O'Toole v Charles David Pty Limited (1991) 171 CLR 232 it is clear that proceedings may involve a 'matter' even when they are not determinative of the rights of the parties, provided the proceedings concern the determination of what their rights were if the law had been properly applied. Nevertheless, the determination of rights, duties and liabilities by reference to legal rules, principles or standards in curial proceedings is at the heart of the notion of a 'matter' for constitutional purposes." 22 In the present proceedings, the Court has before it two (originally three) appeals by the Crown against the leniency of sentences for offences under s233B(1) of the Customs Act (Cth). In exercising its jurisdiction under s5D of the Criminal Appeal Act, this Court is empowered to "impose such sentence as to the said court may seem proper". The identification of what is a "proper" sentence for these offences necessarily, or at least permissibly, involves the identification of what is, or should be, the appropriate pattern of sentencing for this offence. Where it is of such direct applicability to the case before the Court, the identification of an appropriate sentencing guideline plainly satisfies the constitutional conception of a "matter". 23 It may be that a more tenuous association between a guideline and the facts and matters in issue in a particular case would be sufficient to establish the requisite constitutional connection. 24 In Mellifont v The Attorney General (Qld) (1991) 173 CLR 289 the Court upheld the jurisdiction of the High Court to hear an appeal from a decision under s669A of the Criminal Code (Qld) pursuant to which the Attorney General of the State could refer a point of law to the Court of Criminal Appeal for an expression of an opinion. It was submitted that no "matter" within the constitutional conception of that term arose, by reason of the fact that the expression of that opinion would not, pursuant to the statutory provision, affect the outcome of the trial. In its joint judgment, the High Court said: "The questions referred all relate to the correctness of the trial judge's ruling on materiality and his interpretation of the provisions of the Order in Council of 24 June 1987 relating to the time frame of the Inquiry and are asked in the context of the charge laid on the indictment against the applicant. The Crown sought the reference in order to establish that the trial judge's ruling was wrong in various respects. In this situation, the decision on the reference was made with respect to a 'matter' which was the subject matter of the legal proceedings at first instance and was not divorced from the ordinary administration of the law. The decision is therefore to be distinguished from the abstract declaration sought by the Executive Government in In Re Judiciary & Navigation Acts. That opinion was academic, in response to an abstract question, and hypothetical in the sense that it was unrelated to any actual controversy between parties. True it is that the purpose of seeking and obtaining a review of the trial judge's ruling was to secure a correct statement of the law so that it would be applied correctly in future cases. However, in our view, in the context of the criminal law, that does not stamp procedure for which s226A(2) provides as something which is academic or hypothetical so as to deny that it is an exercise of judicial power. The statutory procedure, which has counterparts in other Australian jurisdictions, is a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy. It is a procedure which was designed to enable the Crown to secure a reversal of a ruling by a trial judge without infringing the common law rule that the Crown cannot appeal against a verdict of acquittal, a rule which precluded a review of a trial judge's ruling at the instance of the Crown in the case of acquittal. The fundamental point, as it seems to us, is that s669A(2) enables the Court of Criminal Appeal to correct an error of law at the trial. It is that characteristic of the proceedings that stamps them as an exercise of judicial power and the decision as a judgment or order within the meaning of s73." (at 304-305) 25 This passage may, in an appropriate case, have application to the formulation of sentencing guidelines for Commonwealth offences. It is not necessary, however, to rely on that passage in the present case, where the issue of the appropriate sentencing range does arise with respect to the appeals directly before the Court. 26 In these appeals the Crown indicated that some of the materials which it presented to the Court in the form of crime statistics and victim surveys were not relied upon with respect to the individual cases. The Court has determined that crime statistics are not "evidence" within the proviso of s12(1) of the Criminal Appeal Act (see Henry at [49] - [85]). The fact that a State statute restricts the use to which such material may be put is not determinative of whether or not the admission of such material is consistent with dealing with a "matter" in the course of any exercise of the judicial power of the Commonwealth. 27 The reasoning in Mellifont would strongly suggest that reference to such material is permissible even if does not, either by statute or, as in the present case, by Crown concession, impinge directly on the cases before the Court. Nevertheless it is not necessary to finally determine this issue. As will appear below, this additional material is of no assistance in the formulation of a guideline in the circumstances of this case. The applicability of s29A(1) of the Criminal Procedure Act 1986 (NSW) to the exercise of federal jurisdiction does not arise in the present case. 28 I should note in this context, that the Respondents indicated expressly that there was no objection to the Court having regard to the schedules of sentencing outcomes for this offence, in this and other States, provided to the Court by the Crown. Nor was there any objection to the Court considering the Judicial Commission's sentencing statistics. As will appear further below, it is only this material which has proved to be of significance for the formulation of the guidelines in the present case. 29 The third basis for a jurisdictional challenge invoked s109 of the Commonwealth Constitution which, it was submitted, rendered inoperative the Criminal Appeal Act insofar as it permitted the Court to promulgate a sentencing guideline. This was said to arise by reason of an inconsistency between Pt 1B, specifically s16A, of the Crimes Act (Cth), and the Criminal Appeal Act in this respect. 30 Section 16A is relevantly indistinguishable from s79 of the Family Law Act 1975 (Cth), specifically the list of considerations identified in subs 79(4), which "the court shall take into account" in making orders with respect to the property of parties to a marriage, which the High Court decided in Norbis was consistent with the formulation of guidelines by an appellate court. 31 The Respondents' submissions were based on a misconception. No guideline promulgated by this Court restricts the ability of a sentencing judge to implement any aspect of Pt 1B, or to otherwise give full force and effect to the Commonwealth statutory scheme. 32 As was explicitly stated in both Jurisic and Henry, a sentencing guideline is indicative only. A guideline may be departed from and it is not binding in any formal sense nor does it constitute a rule of law (see Jurisic at 220; Henry at [25] - [30] and [42]). There is no inconsistency of any character.

The Ferrer-Esis Guideline 33 In Ferrer-Esis, the Court had before it a Crown appeal against sentence for an importation of 1,819.8 grams of cocaine, i.e. in the high trafficable range. The case involved a courier who had pleaded guilty. The trial judge had imposed a sentence of six years with a non-parole period of three and a half years. The maximum sentence for the offence, as noted above, was imprisonment for twenty-five years. In the course of his reasons Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed, said: "The recognised pattern of sentencing for couriers of substantial quantities of heroin … produced head sentences of between twelve and sixteen years, with minimum terms generally fixed within the order of approximately 60-75% of the head sentence." (at 236) 34 Although his Honour expressly referred to the maximum sentence of twenty-five years imprisonment, the formulation of this frequently cited passage - "substantial quantity of heroin" - does not use the language of "trafficable quantity". His Honour may have had in mind an overlap with sentencing practice for low range commercial quantities. 35 His Honour also noted: "Taking into account the adjustment required by s16G the previous pattern translates into a head sentence of between eight and a half and eleven years." (at 237) 36 In Ferrer-Esis, the Court identified a number of errors in the exercise by the trial judge of the sentencing discretion. The Court noted that the head sentence of only six years represented a "departure from the recognised pattern of sentencing" (at 239). The Court imposed a sentence of nine years with a non-parole period of five years. 37 Hunt J referred to the fact that there had been, during the relevant period, significant changes in the principles of sentencing. First, the new Sentencing Act 1989 (NSW) applied to Commonwealth offences for a short period. Thereafter, Part 1B of the Crimes Act (Cth), as still in existence, was introduced. Of particular significance for the purpose of comparing the prior sentencing pattern was the loss of remissions under the new New South Wales sentencing practice, for which an adjustment was required under s16G of the Commonwealth Crimes Act. 38 It is relevant to note the following comments of Hunt J: Since Part 1B of the Crimes Act commenced, there does appear to have been a slight, but hardly any significant downturn, in the periods thought to be appropriate before the adjustment is made for the loss of remissions in accordance with s16G of that Act. What difference there does appear to have been seems to me to have been a result mainly of the absence of the previous rigid 75% rule in the ratio between the minimum term and the total sentence. Certainly it could not be said that the previous pattern of sentencing has continued (subject to that adjustment) without alteration. It is still too early to tell, and in any event caution needs to be exercised in translating such sentencing patterns into actual decisions after the two changes which have now occurred in the sentencing legislation: cf Maclay (1990) 19 NSWLR 112 at 126; 46 ACrimR 340 at 354." (at 237) 39 It appears that his Honour had detected a change in sentencing practice which had occurred over such a short time as to make it difficult to determine whether or not a new pattern had developed. 40 The guideline of a quantitative character contained in Ferrer-Esis purported to be a distillation of actual sentencing practice by first instance judges. In this respect it was a "bottom up" guideline rather than the prescriptive "top down" guideline, recently developed as the practice of this Court. (See my address "Sentencing Guideline Judgments" (1999) 11 Current Issues in Criminal Justice 5 at 11; and (1999) 73 ALJ 876 at 881). 41 It is, however, of some significance that even in Ferrer-Esis the Court identified a change in the sentencing pattern occurring after the statutory modifications with respect to sentencing. Of particular relevance, in this regard, was Hunt J's reference to the decision in Maclay in the above quoted passage. In that case the Court had emphasised the caution that needed to be exercised in translating sentencing patterns established under the previous legislative regime. Reference was made, for example, to the possibility that judges had responded to what the Court described as a "fictional element" in the sentences "by increasing non-parole periods in a way that to some extent 'took account' of the remission system" ((1990) 19 NSWLR 112 at 126). 42 In the joint judgment of the Court in Maclay, Gleeson CJ, Hunt and Loveday JJ identified the need for caution before making a comparison between pre Sentencing Act patterns and those appropriate under the new legislation. Although this was not, in terms, directed to the new regime for which the Commonwealth Crimes Act subsequently made express provision, nevertheless similar caution is appropriate in this context. This is particularly so because the s16G adjustment, which Hunt J had computed in Ferrer-Esis, is not an adjustment that is determined by the application of a mathematical formula, notwithstanding the frequent reference to a reduction of about one third. (See eg R v El Karhani (1990) 51 ACrimR 123 at 136-137). Indeed, the adjustment by Hunt J of a twelve to sixteen year sentence range to a eight and a half to eleven years range, is itself not a precise one third adjustment. 43 El Karhani involved a courier with 447 grams of pure heroin. The Court noted that a "tariff' for like cases" appeared to lie between seven to twelve years (at 138), before any s16G adjustment. This coincides with the lowest point identified in Ferrer-Esis. It is by no means clear whether the "like cases" to which the Court was referring encompassed all trafficable quantities involving couriers, or was further qualified by quantity of the order of magnitude there under consideration (which could be regarded as "mid level"). 44 In both Ferrer-Esis and El Karhani, this Court provided an estimate of the "tariff" customarily imposed by trial judges. A change in sentencing patterns was first noted in this Court in R v Lawson (1997) 98 ACrimR 463 where James J, with whom Hunt CJ at CL and Levine J agreed, referred to the range identified in Ferrer-Esis and added: "It is of course clear that where an offender has provided assistance to the authorities and has received a discount for that assistance, the resulting sentence may be below the lower limit of the range of sentences indicated by his Honour. However, since Ferrer-Esis the pattern of sentences which have been imposed on couriers who have not provided assistance has tended to be rather lower than the range of sentences indicated by his Honour. … Statistics provided by the Judicial Commission show that in the higher Courts between January 1990 and December 1996 the great majority of sentences for offences under s233B of the Customs Act involving a trafficable quantity of heroin, where the offender had pleaded guilty and had no prior convictions, were less than eight years." (at 477) 45 In that case Hunt CJ at CL said: "Where this court refers to a range of sentences which have been imposed for a particular offence, it is doing no more than recording, as an historical fact, that that is the general pattern of sentencing at that particular time, so that sentencing judges will have regard to that general pattern when imposing sentences in the particular case. Such patterns are not immutable; this court has at times said that some sentencing patterns have been too low and that more severe sentences should be imposed. A range of pattern of sentencing does not imply that every case within that range is of precisely the same type: some of the cases within the range will have more serious objective circumstances than others; some will have more impressive subjective considerations than others. It is for the sentencing judge to determine where the facts of the particular case fit within that pattern." (at 465) 46 His Honour went on to note that there were factors which would justify a departure from the range of sentences which had been identified in Ferrer-Esis. Indeed his Honour said: "Even in relation to the range referred to in Ferrer-Esis, this court has said that the age of a particular offender will justify a departure from the range of head sentences for couriers of substantial (but nevertheless still trafficable) quantities of heroin referred to in that case. A plea of guilty will often be a significant factor permitting such a departure, depending on the extent of mitigation attaching to that plea." (at 465) 47 In R v Doan (unreported, NSWCCA, 27 September 1996), Hunt CJ at CL annexed to his judgment a schedule of cases in which this Court had considered sentences for importation of trafficable quantities of heroin. The head sentences were in the range of five years to nine years. None of the cases involved more than 1 kilogram. They were all in the low or mid range trafficable quantity. 48 In Lawson, James J referred to the schedule in Doan for the proposition that the pattern of sentences "has tended to be rather lower" than the range suggested in Ferrer-Esis. However, this should be understood in a context that the schedule did not involve high range trafficable quantities. 49 In Lawson, Hunt CJ at CL emphasised that the cases in the Doan schedule were almost all cases in which there was a plea of guilty. In Ferrer-Esis itself there was a plea of guilty, however, the circumstances of that case did not warrant any particular discount for that plea. (See Ferrer-Esis at 238). 50 In Bernier, Smart, Studdert and Hidden JJ, in a joint judgment, referred to the observations of James J in Lawson. The Court noted that the schedule of cases in Doan was for low and mid level trafficable quantities. A schedule of cases handed up to the Court by the Crown in Bernier was described in the following way: "None of the heroin cases involved an amount towards the top of the trafficable range, but several of the cocaine cases do. They resulted in sentences ranging between eight and ten years. In respect of cases in that upper trafficable range, those figures lend some support (albeit limited) to the observation of James J that the pattern of sentencing in recent years is somewhat lower than that expressed in Ferrer-Esis ." (at 47)

The Court went on to note: "We have examined these cases dealing with trafficable quantities only in so far as they might be of some assistance in determining a range for low commercial quantities, of which there are fewer cases. Inevitably, there will be some overlap between the top of the trafficable range and the bottom of the commercial range." (at 48) 51 The Court went on to refer to an earlier decision of Hunt J in R v Paull (1990) 20 NSWLR 427 at 435; 49 ACrimR 142 at 149-150, in the following terms: "Hunt J recognised the 'tariff' for couriers of commercial quantities of cocaine as sixteen years prior to the section 16G adjustment, resulting in a sentence of a little over ten years after that adjustment." (at 48) 52 The Court went on to note a number of cases involving low commercial quantities of cocaine or high range trafficable quantities, in which the role of the offender was greater than that of a courier. A schedule was also handed to the Court with sentences for couriers of commercial quantities some of which were decisions of this Court but most of which were decisions of the District Court. The Court said about the sentences on this schedule: "They range from six and a half years to eleven and a half years, where in some cases allowance is made for assistance to authorities, and in one case the sentencing judge indicated that, but for the assistance, a sentence of twelve years would have been appropriate. The views of judges of the District Court, whose daily task is to determine the appropriate sentencing matter such as these, must command great respect. We are mindful of the observations of Hunt CJ at CL in Lawson … that the specification of a range or pattern of sentence is no more than an observation of sentencing practice. Nevertheless, given the paucity of such cases in this court and in the absence of the detailed reasons of the District Court judges in the cases referred to in the schedule, we are not confident that any reliable range can be arrived at. However, what can be said is that the pattern of sentence for substantial quantities of drugs identified by Hunt J in Ferrer-Esis (eight and a half to eleven years) should now be seen as more appropriate for the importation by couriers of drugs in quantities of the lower range of the commercial range. We doubt that twelve years is within that range but, if it is, it is right at the top of it." (at 48-49) 53 It is this passage which has been criticised by the Crown in this appeal. In general terms, the Crown advocates the affirmation of the Ferrer-Esis range as an appropriate range for high level trafficable offences. Low range commercial quantities, up to 3.5 kilograms, should be proportionately higher. 54 The analysis in Lawson and Bernier has been the subject of further notice in judgments of this Court. 55 The identification in Lawson and Bernier of an apparent change in sentencing patterns was referred in R v Wai Tung Chu (unreported, NSWCCA, 16 October 1998) per Spigelman CJ, with whom McInerney and Sperling JJ agreed. 56 In R v Robertson (unreported, NSWCCA, 6 November 1998), Dunford J, with whom Beazley JA and Wood CJ at CL agreed, referred to Bernier but noted that the case then before the Court was concerned with supply of a commercial quantity of cocaine contrary to s25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW), not s233B of the Customs Act. Nevertheless by way of obiter his Honour said: "It was submitted that as a result of Bernier the range of sentences for couriers of a substantial range of cocaine and heroin has been reduced from what it was said to be at the time that Ferrer-Esis was decided (see also R v Lawson 12 December 1987 and R v Doan CCA 27 September 1996). In my view this is not the case. Bernier was a particular case decided on its peculiar facts to which I have referred, and when these three cases are read as a whole, they should not be taken as indicating a lowering of the range. In my view the range for couriers involved in the importation of substantial quantities of heroin or cocaine, ie at the upper end of the trafficable or at the lower end of the commercial range under the Customs Act is as stated in Ferrer-Esis , which remains an appropriate benchmark, ie of eight and a half to eleven years after adjustment on account of s16G of the Crimes Act (Cth). Bernier and other cases referred to should not be understood by sentencing courts as indicating otherwise." (p8) 57 I note that Dunford J did not adopt the Crown's proposition that the Ferrer-Esis guideline applies to the upper trafficable range. His Honour adopted the reference to "substantial quantities" in Ferrer-Esis itself, which suggested an overlap between that range and the lower commercial range. 58 The issue arose again in R v Barrientos [1999] NSWCCA 1, where Abadee J, with whom Sheller JA agreed, quoted the above passage from Robertson and added at [28] - [29]: "On one view it might be thought that this passage is inconsistent with the statement of this court in Bernier that the range of eight and a half to eleven years is appropriate for the importation by couriers of drugs at the lower end of the commercial range not the upper end of the trafficable range, with the court making a careful distinction between the lower commercial and upper trafficable ranges. This said, it is not necessary to determine whether there is conflict between Bernier and Robertson , so that Bernier no longer reflects the law in the area in which it operates. My reason for so concluding may be further summarised. As I have said the remarks of Dunford J in Robertson appear to be obiter and here accepted by the parties as such. Second, there is nothing in the decision in Robertson that demonstrates that the reasoning process or the statement of the applicable range in Bernier is wrong. In fact in Robertson , Bernier was distinguished on its own facts … In any event Robertson is not a decision on s233B of the Customs Act and the court did not, as did the court in Bernier , analyse the pattern of sentences imposed under that provision." 59 In Barrientos, Hulme J, who referred to a number of authorities in this Court, said he was prepared to assume that the analysis in Bernier was correct but, casting some doubts on that assumption, emphasised that the court in Bernier had in mind couriers who had pleaded guilty (at [72]). 60 On 24 February 1999, this Court handed down three judgments in cases which had been argued together. These were R v Spiteri [1999] NSWCCA 3; R v Yu [1999] NSWCCA 6: and R v Jiminez [1999] NSWCCA 7. In these cases Hulme J, in dissent, concluded that Bernier was wrong. Hidden and Greg James JJ said that they were not prepared to depart from Bernier, inter alia, because the point had not been argued by counsel. Their Honours indicated that the Commonwealth Director of Public Prosecutions had expressly refrained from challenging the authority of Bernier in the way that has now been done before the Court in these proceedings. Hidden and Greg James JJ emphasised that the Director did not concede the correctness of Bernier in taking the stand that he did for purposes of determining the three cases then before the Court. 61 Hulme J took a different view on this issue. In each of the three cases his Honour came to the view that the reasoning in Bernier as to the inappropriateness of the range from Ferrer-Esis for high level trafficable quantities was not correct. His Honour gave a detailed exposition of his conclusions in this respect in the case of Spiteri, where he considered a large number of decisions of this Court and other Courts. 62 Subsequent consideration of these cases in this Court in R v Blanco [1999] NSWCCA 121 at [24] emphasised the special factors in Bernier itself, in particular the allegation of duress with an attendant possibility of an acquittal if such a defence had been raised. This gave the guilty plea significant weight. However, the relevance of Bernier for present purposes is not in the particular sentence which the Court decided was appropriate in that case. Rather, it is as to the qualification that the reasoning in Bernier has made to the range identified earlier in Ferrer-Esis. 63 In this respect Wood CJ at CL said in Blanco at [24]: "It is true to say that some different views have been expressed in this Court, concerning the analysis undertaken in Bernier in respect of the pattern of sentencing since Ferrer-Esis . The divergence of opinion seems to me to point towards the desirability of the Court reconsidering the matter by way of a guideline judgment." 64 It is desirable that these differences, to which Wood CJ at CL referred, should be resolved by a five judge bench. The Court of Criminal Appeal cannot perform its function of ensuring consistency in sentencing on the part of trial judges, if it does not manifest consistency in its own decisions. There is a range of permissible opinion on matters of this character at an appellate, as well as at trial, level. Nevertheless there are limits to the permissible range of variation (Jurisic at 221). 65 The divergence has become manifest in terms of a difference of approach to what has been regarded as a guideline for sentencing for this offence in Ferrer-Esis. It is appropriate to resolve that divergence by considering that guideline and, if appropriate, clarifying and/or reformulating it.

Crown Submissions 66 The Crown case presented to this Court was, in essence:

(i) The Ferrer-Esis guideline is appropriate for high range trafficable quantities of heroin and cocaine.

(ii) An appropriate increment should be applied to the Ferrer-Esis guideline in the case of low range commercial quantities (up to 3.5 kilograms).

(iii) An appropriate increment schedule should be applied to the Ferrer-Esis guideline in the case of persons whose level of criminality is higher than that of a courier.

(iv) Bernier , by applying a range appropriate for high range trafficable quantities in the case of a courier to low range commercial quantities in such a case, either reduced the actual current sentencing levels or, alternatively, validated lower sentencing levels.

(v) The nature and prevalence of the offence did not warrant any such reduction or validation. 67 The judgment of Hulme J in Spiteri contained a schedule of cases of charges under s233B of the Customs Act for importation of both heroin and cocaine, covering the spectrum of trafficable and commercial ranges. The cases listed were heard in the Supreme Court of New South Wales, the New South Wales Court of Criminal Appeal, and corresponding courts in other States. The role of the offender is not limited to that of 'courier'. Rather, his Honour's schedule includes cases that involve different degrees of participation; from 'below/above courier', 'possessor' and 'minder', to 'distributor', 'principal' and 'entrepreneur'. 68 Schedules prepared by the Crown for these proceedings also covered the whole range of trafficable and commercial ranges. The Crown presented separate schedules for decisions of Courts of Criminal Appeal in other States and in this Court. These schedules did not include first instance decisions. 69 In its submissions, the Crown contended that the schedules of cases of decisions by this Court in terms of outcomes, indicated the following pattern of sentences: "(a) In relation to the standard case of a courier pleading guilty with regard to low range trafficable quantities the range seems to be a head sentence of imprisonment for five to seven years; (b) In relation to the standard case of a courier pleading guilty in regard to offences involving mid range trafficable quantities, the range seems to be head sentences of imprisonment for six to eight and a half years; (c) For quantities above those announced the cases do not fall into neat groups or lend themselves to the derivation of any precise tariffs." 70 The Crown submitted that whilst there was no identifiable sentencing pattern for high range trafficable quantities, the Ferrer-Esis range of eight and a half to eleven years "falls logically into place". Furthermore, it submitted that, on that basis, the range for low commercial quantities would be in the vicinity of ten to thirteen years. 71 Notwithstanding its reliance on the schedules of sentences, the Crown referred to the difficulties involved in identifying a sentencing pattern from the limited number of cases which come to this Court. Two particular difficulties were mentioned. First, the inhibition on the Court in the case of Crown appeals by reason of the double jeopardy factor, from imposing a sentence of a size which ought to have been imposed at first instance. Secondly, the distortion in the case of a substitution by police of a controlled delivery sample which results in a sentence technically related to a small trafficable quantity, when the original intention was to import a larger amount. By reason of these difficulties, the Crown urged the Court to adopt a more prescriptive, i.e. top-down approach, in identifying appropriate sentences. It should not be confined to the existing sentencing patterns. 72 The Crown proposed the following guidelines for head sentences in the case of couriers pleading guilty:

Low Range trafficable quantities - 5 to 7 years (2gms - 200gms) Mid Range trafficable quantities - 6 to 8½ years (200gms - 1 kg) High Range trafficable quantities - 8½ to 11 years (1kg - 1.5kgs (heroin) or 2kgs (cocaine)) Low Range commercial quantities - 10 to 13 years (1.5kgs (heroin) or 2kgs (cocaine) - 3.5 kgs) Substantial commercial quantities - 12 to 15 years (3.5kgs - 10kgs) 73 In substance, the Crown submitted that this Court should affirm the Ferrer-Esis guideline in accordance with the interpretation of that case which it urged on the Court and extend that guideline to other ranges. 74 The Crown's submission that the Ferrer-Esis range "falls logically into place" is not justified. The level below, i.e. for mid range trafficable quantities was identified in the Crown submissions as six to eight and a half years. The Crown submission is that the high range trafficable quantity should commence precisely where the mid range quantity ceases. 75 The submission of the Crown is that what it identifies as the top of the range for mid range trafficable quantities, ie eight and a half years, should become the very bottom of the range for high range trafficable quantities. This contrasts with the Crown's own identification of an overlap between low range and mid range trafficable quantities: the former ending at seven years and the latter commencing at six years. Similarly, the Crown submits that there should be an overlap between high range trafficable quantities (ending at eleven years) and low commercial quantities (commencing at ten years). 76 It is not correct, in my opinion, to fail to allow for an overlap between categories. There is no distinct point where one range ends and the other range commences. If quantity was the only factor relevant to the exercise of the sentencing discretion, then one could accept a clear distinction at the point where one range ends and another begins. However, quantity is not the only factor required to be taken into account, either under s16A of the Crimes Act or in accordance with general principles.

Sentencing Patterns 77 In my opinion, the Crown's schedules do not support the contention that the Ferrer-Esis range of eight and a half to eleven years is in accordance with sentencing patterns for high range trafficable quantities. 78 I annex as Schedule 1, a schedule of sentences in this Court for couriers and others involved at a low level in the hierarchy of an importing organisation. This is drawn from the Crown schedules submitted to the Court. It lists the cases which, in my assessment, cover couriers and equivalent participants. 79 In preparing such schedules there is scope for disagreement at the margin as to how particular outcomes should be classified and, in particular, where ranges, other than the statutory distinction between trafficable and commercial quantities, should be identified. 80 Schedule 1 draws on, but is not identical to, the schedules of decisions in this Court as presented by the Crown. This represents differences in judgment on some classification issues. 81 Schedule 1 consists of four categories as suggested by the Crown:

High range trafficable quantities 1kg - 1.5kgs (heroin) 1kg - 2kgs (cocaine)

Low range commercial quantities 1.5kgs - 3.5kgs (heroin) 2kgs - 3.5kgs (cocaine) 82 In addition, it is appropriate to identify two other categories:

Substantial commercial quantities 3.5kgs - 10kgs Major importations Above 10kgs

New South Wales Court of Criminal Appeal cases in these categories are set out in Schedule 3.

These two ranges are above the level capable of being carried by an individual courier. In these categories there are only four cases of sentences on persons who participate at a level in the hierarchy that may be seen as equivalent to couriers. Accordingly, little in the way of guidance can be obtained from sentencing patterns. 83 When considering the sentences in Schedule 1, in my opinion, the Court should set aside the final outcome in any case in which a significant discount for assistance has been given. Because of the notorious difficulties of detecting the crime of importation - a crime whose victims cannot report it and would not if they could - the courts give significant discounts for assistance. 84 The ranges indicated in Schedule 1, for a courier or equivalent, after omitting cases affected by a substantial discount for assistance, are as follows: Low range trafficable quantity range from 5 - 7 years head sentence Mid range trafficable quantity 5.4 - 10 years head sentence. High range trafficable quantity 6.5 - 10 years head sentence. Low range commercial quantity range from 8 -12 years. 85 As one would expect there is a substantial overlap between the respective ranges. There are some anomalies. Nevertheless a reasonably clear sentencing pattern emerges. I do not accept the Crown submission that no discernible pattern exists above the mid range trafficable quantity. That proposition can, however, be sustained with respect to importations above 3.5 kilograms, to which Schedules 3 and 4 refer. 86 In general terms, the material put before the Court does support the conclusion to which this Court came in both Lawson and Bernier to the effect that the range suggested in Ferrer-Esis has tended to be imposed for low range commercial quantities rather than for high range trafficable quantities, although there is an overlap between the two ranges. 87 The Crown provided the Court with a schedule of outcomes from Courts of Criminal Appeal in other States. Schedule 2 sets out that information for couriers or other low hierarchy participants. The number of cases is less than those in this Court. A significant majority of drug importations occur in New South Wales. 88 The schedule contains a number of anomalies particularly with respect to some high sentences in the category of mid range trafficable quantities. However, with respect to the distinction between the high range trafficable and low range commercial quantities, the few cases are broadly confirmatory of the New South Wales position save that the outcomes of several cases in the low commercial range are significantly above the top of the range suggested by the New South Wales cases. 89 The desirability of uniformity of approach throughout Australia may indicate some need for firming up the top of the range for sentences involving low range commercial quantities. It is desirable that the respective State courts invested with federal jurisdiction to hear prosecutions for Commonwealth offences, approach the sentencing task with an element of harmony. This is required, in my opinion, by Part 1B of the Crimes Act (Cth). 90 As Malcolm CJ said in Medina v The Queen (1990) 108 FLR 288 at 292-293: "In a context of offences which are committed against Commonwealth legislation, such as the importation provisions of the Customs Act , it is important that courts throughout Australia adopt a common approach to the sentencing of offenders." 91 To similar effect is the reasoning of the Court of Appeal of Victoria in a joint judgment of Hayne JA, Crockett and Southwell AJJA in Krasnov & Shlakht (1995) 82 ACrimR 92 at 95: "It was submitted that because the offences to which Krasnov pleaded guilty were offences against Commonwealth law, it was important that there should be no significant departure from general sentencing levels obtaining throughout the Commonwealth and so much may be accepted. Uniformity of sentencing, particularly in relation to Commonwealth offences is important. Of course the exercise cannot be pressed too far. The assistance that may be obtained from particular sentences imposed on other persons in other circumstances is necessarily limited." (at 96) 92 The proposition that sentencing for Commonwealth offences should adopt a similar approach can readily be accepted. It is implicit in the legislative scheme of the Crimes Act that this be so, notably in the provision of s16G itself, which seeks to ensure that sentences actually to be served are comparable, notwithstanding differences in State regimes with respect to the availability of remissions or other reductions. Absent the operation of permissible local factors, similar results should follow from the application of "uniform sentencing principles" (Leeth v The Commonwealth (1991-92) 174 CLR 430 at 476. See also Leeth at 470-471 per Mason CJ, Dawson and McHugh JJ; Sir Guy Green "The Concept of Uniformity of Sentencing" (1996) 70 ALJ 112 at 120-122). 93 In this regard it is pertinent to note that courts in other States have referred to the range in Ferrer-Esis in the context of determining appeals from sentences. In R v Foster & D'Anna (1992) 59 ACrimR 14, Seaman J, with whom Malcolm CJ and Dick J agreed, said: "The Court of Criminal Appeal in New South Wales has held that the recognised pattern of sentencing for couriers of substantial quantities of heroin prior to the commencement of the Sentencing Act 1989 (NSW) produced head sentences of between twelve and sixteen years, with minimum terms generally fixed within the order of approximately 60-75% of the head sentence: Ferrer-Esis (1991) 55 ACrimR 231." (at 20) 94 This passage appeared in the course of his Honour referring to decisions of the Court of Criminal Appeal in Western Australia in which sentences of twelve years for couriers of a small importation were not regarded as excessive. His Honour also referred to a decision of the Court of Criminal Appeal of Victoria in which a penalty of fifteen years with a minimum term of twelve years imposed upon a courier was not regarded as inappropriate. Similar references occur in R v Parsons (1993) 66 ACrimR 550 at 562 per Malcolm CJ, and R v Burns (1994) 71 ACrimR 450 at 456 per Owen J. 95 Recently in R v Cheng, R v Chan and R v Cheng [1999] SASC 175, to be referred to below, the South Australian Court of Criminal Appeal referred to the qualification of Ferrer-Esis in Bernier and the majority in Spiteri, [95] - [100]. 96 A comparison of Schedule 1 and 2 does suggest that courts in other States impose slightly higher sentences at the top of the low commercial quantity range. 97 Schedules 3 and 4 set out sentences for substantial quantities (3.5kgs to 10kgs) and major importations (above 10kgs) in, respectively, this Court and other Courts of Criminal Appeal. Unlike Schedules 1 and 2 these schedules encompass all cases, including principals. (There are only four low level offenders in Schedule 3). 98 With respect to the 3.5kgs to 10kgs range in each of Schedules 3 and 4 there was one sentence which was low but explicably so. Otherwise the range in New South Wales was nine to eighteen years and, in other States and Territories, nine to twenty-five years. As in the case of low range commercial quantities, the interstate comparison indicates that uniformity of approach suggests a need to firm up sentences in New South Wales. 99 It is, however, difficult to be definitive in this respect. In each of the two higher ranges the range of sentence is too broad to suggest any definitive sentencing pattern. No doubt this reflects, in part, the great diversity of roles with respect to the act of importation performed by the offenders to whom the schedules refer (from the most minor part to the mastermind). 100 Of particular significance for present purposes is that, other than the one explicably low case in Schedule 4, only two other interstate cases are below a twelve to twenty-five year range. These are the cases of Yu Shing Cheng (9 years) and Gang Cheng (10 years). These, together with Bach An Chan (13 years), constituted the Adelaide leg of the very importation with which these appeals are concerned. I will return to these cases. 101 Schedules 1 to 4 refer only to sentence outcomes in Courts of Criminal Appeal. It is important to understand sentencing patterns by trial judges when determining whether a sentencing guideline should be promulgated. The existence of inconsistency or systematic leniency in sentencing by trial judges are two reasons for doing so identified in Jurisic and Henry. 102 The statistics available to the Court cover the period January 1990 to December 1998. They include sentences by trial judges and those imposed after appeal. The Court is concerned with head sentences for offences against s233B for heroin and cocaine. 103 The Judicial Commission's statistics with respect to offences against s233B are of some, albeit limited, utility. The first limitation is the large variety of ways in which that section can be infringed. Secondly, the statistics do not permit the Court to distinguish between different levels of quantity within the two statutory categories of trafficable quantity and commercial quantity. Thirdly, the statistics do not permit the Court to distinguish offenders by the role played in an importation. 104 I annex hereto four charts showing the Judicial Commission statistics for head sentences. These charts indicate a concentration of sentences in certain ranges which suggests a substantial level of consistency in the sentencing pattern. Furthermore, there are very few short sentences. This suggests strongly that there is no systematic leniency in the existing sentencing pattern. That conclusion is reinforced by the fact that of the 303 offenders sentenced in relation to trafficable quantities, only eight received sentences which did not comprise or include a prison term. In the case of commercial quantities, of 133 offenders all received a prison term. Non-custodial sentences for this offence must be restricted to truly exceptional cases. Sentencing judges have done so. 105 In the case of trafficable quantities, approximately three-quarters of all sentences fall in the range of five to ten years. In the case of commercial quantities approximately three-quarters of all sentences fall in the range of seven to fourteen years. An additional 16% of cocaine offenders and 10% of heroin offenders received five or six year terms for commercial quantities. Furthermore, 19% of heroin offenders received more than fourteen years. 106 The Crown referred the Court to a recent report by the Judicial Commission, Sentencing Drug Offences (August 1999). This report contained a detailed analysis of sentences imposed by higher courts in New South Wales from 1 January 1992 to 31 December 1997. The Commission's findings included the following: · the most common drug involved in importation offences was heroin (45.5%) followed by cocaine (31%). · just over one third of offenders (35.1%) acted as couriers. · about eight out of ten offenders (82.6%) pleaded guilty. · about seven out of ten offenders (70.8%) had no prior record of offending. 107 Neither the Judicial Commission's report, Sentencing Drug Offenders (August 1999), which analysed sentences imposed in higher courts of NSW, from 1 January 1992 to 31 December 1997, nor the Commission's Sentencing Information System statistics regarding drug offences under s233B of the Customs Act, finalised in higher courts, for the period of January 1990 to December 1998, identify a pattern of inconsistency of approach in sentencing drug offenders which would justify correction by an appellate court. 108 Indeed, as the authors of the report, Sentencing Drug Offenders, conclude (p52): "Overall, the statistics reveal a pattern of consistency in the sentences handed down by the court. This does not deny the existence of disparities, in some cases unjustified - if there were no such instances there would be no need for a system of appeals." 109 Further, the statistics do not suggest manifest inadequacy in the sentences imposed by the courts. The terms set for offences involving trafficable and commercial quantities of heroin and cocaine, suggest that the length of the terms of imprisonment do accord with the seriousness of these offences. 110 Nothing in the materials presented to the Court, and nothing in the experience of the Court, suggests that there is any systematic inadequacy in the sentencing patterns of trial judges with respect to the offence under consideration. 111 The judges of this State are aware of the exceptional threat to our society that is posed by large scale drug use. In the case of persons accused of importation, or of being involved in importation, and whose motive is greed, there is a discernible unanimity in judicial approach. 112 These are serious offences committed by persons who have been and are subject to significant punishment at a level capable of deterring others. Whilst there is room for legitimate diversity of opinion as to the sentence outcomes which this general approach requires in the circumstances of a particular case, such diversity has been kept within proper bounds. Those few cases which may fall outside of those bounds can be rectified by the normal course of appeals against severity or leniency. In the case of drug importers and their accomplices, who are motivated by greed, the judiciary speaks with one voice. 113 In such circumstances the considerations relating to inconsistency and to systematic inadequacy of sentences to which reference is made in Jurisic and Henry as justifying a guideline judgment, do not arise.

Promulgating a Guideline 114 In Jurisic and Henry, the Court referred to a number of different reasons for promulgating a sentencing guideline. This analysis drew on the experience in other jurisdictions, particularly England and Canada, in this respect. 115 The Crown submitted that a guideline judgment was required by reason of an apparent increase in the incidence of the offences. Prevalence has long been accepted as a factor justifying an upward revision of sentences. A guideline judgment is one means of achieving such a result. 116 The Crown relied on crime statistics for the proposition that the crime of importation of drugs was increasing. The two sources of crime statistics relied on were police data and victim surveys. The Crown submitted these statistics demonstrated an upward trend in the reported incidence of drug importation. This trend justified the promulgation of sentencing guidelines as a measure of general deterrence. 117 The Crown conceded the inherent weaknesses of the statistics, particularly the data relating to the seizure of narcotics, which is influenced by the resources allocated to that task. The data is limited in its capacity to confirm the increased incidence, or otherwise, of the importation of heroin and cocaine. 118 The NSW Recorded Crime Statistics 1995-1998, prepared by the Bureau of Crime Statistics and Research, show that the number of separate incidents of the offence of imported drugs fluctuated as follows: 1995 (11); 1996 (9); 1997 (39); 1998 (25). The data does not permit any reliable conclusion as to increases in importation. The process of detection of imports is too haphazard. The figures themselves are equivocal. 119 The Australian Illicit Drug Report 1997-1998, prepared by the Australian Bureau of Criminal Intelligence, provides a more thorough analysis. The principal findings of this report, on which reliance was placed by the Crown, are concerned with the quantity of heroin and cocaine detected or seized Australia-wide. The quantity of these drugs identified in customs border detections fluctuates considerably from year to year. This makes interpretation difficult. Fluctuations may have a random quality in terms of skill and luck in detection. They may also reflect increased resources or greater efficiency, rather than increased importation. 120 In the case of heroin, the quantity so detected appears to be greater in the second half of the 1990's, than in the first half. In the case of cocaine, after a fall in the mid 1990's, there appears to be an increase in recent years. 121 As noted these statistics may not reflect an increase in quantity being imported. The changes suggested by this data are not so dramatic, nor have they been sustained over a sufficiently long time, to suggest anything in the nature of a significant trend requiring a new response by the courts. This is not to understate in any way the significance of the crime or its prevalence. However, the changes identified in the Crown submissions do not of themselves indicate the need for a new sentencing pattern. 122 The victim surveys relied upon by the Crown (The National Drug Strategy Household Survey conducted by the Australian Institute of Health and Welfare in 1998, and survey responses documented in W. Hall "Methadone Maintenance Treatment as a Crime Control Measure" (1996) 29 Crime and Justice Bulletin 1), provide estimates of heroin use, and indicate the close connection between heroin use and crime. They highlight an endemic socio-economic problem: a spiral of drug dependence feeding crime, and vice versa. These surveys confirm the significance of the drug problem in our society. 123 This material does not warrant any cause for complacency on the part of the courts in performing their task to punish and deter those involved in these crimes. There is no warrant for any slackening on the part of the courts. Nor, however, is there a demonstrated need for a significant alteration in response on the part of the courts. 124 In my opinion, it is appropriate for this Court to promulgate a comprehensive quantitative guideline for an offence for which a relevant guideline has long existed and, it appears, has proved to be of utility to sentencing judges throughout Australia. I refer, of course, to the Ferrer-Esis guideline. This step is particularly appropriate where, as in this case, some differences have emerged with respect to the interpretation of that pre-existing guideline. 125 There are two additional reasons for promulgating a quantitative guideline with respect to the offence presently under consideration: First, by providing guidance to trial judges it is less likely that sentences will be imposed which suggest a need for appellate review. Secondly, the clear promulgation of likely actual sentences will assist the objective of general deterrence. 126 One of the functions performed by the promulgation of sentencing guidelines is that of deterrence. Potential offenders should know in advance that offences of a particular kind are likely to lead to a particular level of sentence. The publication of maximum sentences does not perform a substantial deterrent function, as the relationship between maximum sentences and actual sentences is not sufficiently clear. This is plainly the case with respect to offences against s233B where, in the case of trafficable quantities, the maximum is expressed to be a fine not exceeding $100,000 or imprisonment for twenty-five years and, in the case of commercial quantities, is expressed to be imprisonment for life. The very scope of the range impedes the published maximum having a deterrent effect. 127 There are significant differences of opinion as to the deterrent effect of sentences, particularly, the deterrent effect of marginal changes in sentence. Nevertheless, the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter. 128 Deterrence only works to the extent to which knowledge is transmitted to potential offenders about actual sentencing practice. Guideline judgments are a mechanism for increasing the efficiency of the transmission of such knowledge. Deterrence is an appropriate basis for promulgation of a guideline. (See Henry at [41] and [205] - [211]; Police v Cadd (1997) 94 ACrimR 466 at 511; and my address "Sentencing Guideline Judgments" 11 CICJ 5 at 10-11; 73 ALJ 876 at 880-881). 129 There are numerous statements in judgments of Courts of Criminal Appeal throughout Australia which emphasise the role that general deterrence must play in the determination of the level of sentences for offences against s233B. Courts have frequently cited with approval the following observations of Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 399: "On the other hand the deterrent aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it. When an organised, costly and complex offence is contemplated the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate. Those who deliberately choose to run the risk of punishment in order to acquire a profit from the venture cannot point to mitigating circumstances of the sort which stand the chance offender in good stead. The extent to which the sentence recedes from maximum cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition." 130 The legislature has made it clear, in providing for a gradation of penalties in the three relevant cases - less than a trafficable quantity, trafficable quantity and commercial quantity - that the amount of drugs is an important consideration in the sentencing exercise. This would in any event be suggested on the basis of first principles. The primary object of sentencing is the protection of the community. The adverse effects of drugs such as heroin and cocaine on the community are directly related to the quantity of drugs available in the community. Accordingly, quantity is an exceptionally important aspect of the objective seriousness of the crime. 131 Notwithstanding the significance of quantity, it is not determinative of the appropriate sentence. Other aspects of the crime, including objective and subjective considerations, remain relevant in the exercise of the sentencing discretion. One factor which arises in the course of contraventions of s233B is the role of the accused in the organisation, if any, which imports the drugs into Australia. 132 The courts have consistently refused to treat couriers, or other persons who are low in the hierarchy of organisation involved in drug importation, with the leniency which is sometimes appropriate in the case of other offences, to distinguish principals from persons of a lesser role. (See Le Cerf (1975) 13 SASR 237 at 239-240; R v Muanchukingkan (1990) 52 ACrimR 354 at 356; Laurentiu (1992) 63 ACrimR 402 at 417-418; R v Thiagarajah (1989) 41 ACrimR 45 at 49; R v Budiman (1998) 102 ACrimR 411 at 413-414). 133 Nevertheless, the difference in roles remains of significance for the sentencing exercise. The decision of the High Court in R v Olbrich [1999] HCA 54; 73 ALJR 1550 does not doubt the relevance of categorising an offender, although it establishes that such categorisation is not an essential part of the sentencing process. 134 The importance of quantity, as confirmed in the structure of the statutory scheme, indicates that any guideline should be structured by levels of quantum. This is, of course, how the Ferrer-Esis guideline was expressed. As I have said above, because there are considerations other than quantum relevant to the sentencing task, sentencing ranges for successive quantity ranges will necessarily overlap. 135 Other jurisdictions which have adopted guidelines for sentencing for importation of drugs have also structured the guidelines in terms of quantum. In the United Kingdom, the guideline developed over a series of cases (R v Aramah (1982) 76 CrAppR 190; R v Bilinski (1998) 9 CrAppR 327). The Court of Appeal identifies two points of reference, rather than ranges, for heroin and cocaine: · 500 grams 10 years · 5 kilograms or more 14 plus years 136 In New Zealand, the Court of Appeal has stated, without being precise as to quantum, that sentencing patterns suggest six to seven years for importers of heroin on a large scale (R v Urlich [1981] 1 NZLR 310; R v Stanaway [1997] 3 NZLR 129). In one case the Court accepted eighteen to twenty years as an appropriate starting point for an importation of 2 kilograms of 80% pure heroin (R v Accused [1992] NZLR 316). 137 In the present case it is appropriate to adopt a "bottom up" system of guidelines which does not contain any significant prescriptive element. This is a field in which the collective wisdom of trial judges and appellate judges of great experience, whose careful attention over many years to the proper level of sentences has, insofar as a discernible sentencing pattern has emerged, created the foundation for a more specific articulation of such patterns. As Sir Garfield Barwick put it in Griffiths v The Queen (1977) 137 CLR 293 at 310, after noting the appropriateness of a Court of Criminal Appeal seeking to achieve consistency in the sentences imposed by trial judges: "The views of those whose daily, or almost daily, task is the sentencing of prisoners must command respect. 138 Similar observations were made in Bernier as quoted above. 139 In the present case the importance of the sentencing pattern is reinforced by the narrowness of the focus of the Crown submissions in the present case, on sentences with respect to s233B of the Crimes Act (Cth). Trial judges have a relevant body of experience with respect to the sentencing of offenders under cognate State statutes. I use the word "cognate" to indicate that the consequences of trafficking drugs, and the nature of the criminal organisations involved in such trafficking, does not differ in principle in cases of seizures at the border, (prosecuted under the Commonwealth Act), and domestic seizures (prosecuted under State Acts). Whilst different considerations arise in the context of the various State regimes, there are also important common factors. The judgment of trial judges and judges in Courts of Criminal Appeal, many of whom are trial judges also, in the absence of any apparent inadequacy of outcomes, should be validated by this Court. 140 There are, of course, a range of factors identified in s16A of the Crimes Act 1914 (Cth) which are required to be taken into account in sentencing for this offence. It is not necessary to review the list of considerations which frequently arise for determination in this particular context (see eg Fox & Freiberg Sentencing State and Federal Law in Victoria (2nd ed, 1999) at pars 12.907-12.909). As indicated above, a central factor is the quantity of drugs involved. The other considerations, both objective and subjective, which usually arise for determination in this context are intended to be encompassed by the range referred to below. 141 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. 142 The following guideline is intended to be non-binding in the sense explained in Jurisic and Henry. It has been determined primarily on the basis of existing sentencing patterns and is intended to apply to couriers and persons low in the hierarchy of the importing organisation. · Low level trafficable quantity - 5 - 7 years (2gms - 200gms) · Mid level trafficable quantity - 6 - 9 years (200gms - 1kg) · High range trafficable quantity - 7 - 10 years 1kg - 1.5kgs (heroin) 1kg - 2kgs (cocaine) · Low range commercial quantity - 8 - 12 years 1.5kgs - 3.5kgs (heroin) 2kgs - 3.5kgs (cocaine) · Substantial commercial quantity - 10-15 years (3.5kgs - 10kgs)

The Crown Appeals 143 The Crown has appealed against the alleged leniency of the sentences in each of the two cases involving Jackie Kai Chu Leung ("Leung") and Nelson Tak Fat Wong ("Wong"). Wong has appealed against the severity of his sentence. However, as noted above, no submissions were made on his behalf in this respect. 144 Law pleaded guilty before his Honour Chief Judge Blanch in the District Court on 5 August 1998 after the matter had been listed for trial. He was sentenced to imprisonment for ten years with a non parole period of six years dating from 8 November 1997, the day of his arrest. Leung and Wong both pleaded not guilty and were found guilty after trial by jury. They were each sentenced by his Honour Judge Davidson on 18 December 1998, to imprisonment for a period of twelve years with a non parole period of seven years dating from 8 November 1997, being the day of their arrest. 145 The basic factual background is as follows. On 31 October 1997, five wooden packing cases, each containing one marble pedestal arrived in Adelaide from Bangkok. They were marked for delivery to an Adelaide address. The unopened crates were intercepted by Australian Federal Police and Customs officers. Each pedestal had a hollowed out section containing packages which, on later analysis, proved to be heroin. In total there was an amount of 9.356 kilograms of pure heroin. This places the importation at the very top of the significant commercial range. 146 Whilst in police custody the pedestals were dismantled, the heroin extracted and replaced with another substance mostly made up of plaster of paris but containing a small amount of heroin. Sound recording and transmitting equipment was inserted in one of the pedestals. 147 The pedestals were delivered to the Adelaide address. From there they were transported to Sydney. Police maintained surveillance of the pedestals on their journey. On Friday 7 November, Law picked up the vehicle in which the pedestals had been transported and drove it to his house in Ivy Place, Cherrybrook. Police maintained surveillance of the premises during the remainder of that night and the following day. 148 The police installed video recording equipment focused on the garage. Sound was recorded both on a digital audio tape recorder and on the sound recording system of the video recorder. 149 The video recording depicted, inter alia, Wong inside the garage placing a cardboard screen across the window. The audio devices recorded sounds consistent with the smashing of marble pedestals and also conversation in Chinese languages. The conversation incriminated the participants. 150 At 7.00pm, the police executed a search warrant and entered through the front door of the house. Present in the house when they did so were Wong, Leung and Law and no other person.

South Australian Sentences 151 Davidson DCJ considered sentenced imposed by the Supreme Court of South Australia on three persons involved in that State in the importation. Yu Shing Cheng (to whom the crates had been addressed) was sentenced to imprisonment for fourteen years with a non-parole period of seven and a half years; Gang Cheng to imprisonment for thirteen years with a non-parole period of seven and a half years; and Bach An Chan to imprisonment for sixteen years with a non-parole period of eleven years. 152 It will be necessary to return to the circumstances of the involvement of these three below. It is sufficient to note that, following a successful appeal, the sentences were reduced, the final sentences being as follows: Yu Shing Cheng: nine years, non-parole period five years; Gang Cheng: ten years, non-parole period six years; Bach An Chan: thirteen years, non-parole period nine years.

(See R v Cheng; R v Chan; R v Cheng [1999] SASC 175 (13 May 1999). 153 These sentences raise issues of parity in the present appeals because they involve the same importation. 154 Yu Shing Cheng was the consignee of the crates containing the pedestals. He went to the airport and arranged for the cargo to be delivered to his residence in Adelaide. The trial judge accepted Yu Shing Cheng's submission that he was only expecting two small parcels [70], [71]. 155 Gang Cheng was recruited by Bach An Chan to drive the pedestals to Sydney. He was paid $3,000 as well as $1,000 for the expense of renting the car in which to drive the pedestals. He arranged for the hire of the Landcruiser. He paid the hire charge with a credit card he had stolen [41]. Gang Cheng helped load the pedestals into the Landcruiser, drove the Landcruiser to Sydney and arranged for the delivery in Sydney [74]. 156 Doyle CJ held that Gang Cheng had a higher degree of culpability than Yu Shing Cheng as his role, particularly in the hiring of the Landcruiser, "involved significant dishonesty and deception" [109]. 157 Bach An Chan organised the Adelaide end of the operation. It was his job to supervise and manage at every point the movement of the heroin from Adelaide to Sydney. He also flew to Sydney to supervise its delivery to recipients there, obtaining a ticket under a false name. He recruited Gang Cheng and Yu Shing Cheng [110].

Leung and Wong 158 In the cases of Wong and Leung, Davidson DCJ had before him a broader range of facts than those before the Chief Judge in the case of Law, including the transcript of, and evidence in, the trial. Davidson DCJ was able to identify the role of Leung and Wong. His Honour held that Leung was the person identified in the transcript as M1 and Wong was M3. 159 Leung was heard speaking on a mobile phone. He referred to "five kilo one, five big ones". He was reporting to whoever was at the other end of the phone and said, "Now we are opening paper boxes" and "after we arrange everything we will do it for you". 160 He was also recorded as having said, "It's really disastrous, yesterday loss $290,000, today having to cough up money again". Davidson DCJ held that this was not the language of a person who was merely a courier. He found it to be of a person who had a more substantial stake than a courier would be likely to have in such processes of importation. Leung was also heard to say, "I teach you what to do first, you see there are twenty-five ounces in each piece, there are twenty-eight strokes in each ounce". Leung was also heard to say that he wanted something checked. After Leung discovered the material in the pedestals was not heroin he was recorded as saying, "People will die if found out people will be killed that will be true". 161 His Honour held that the transcripts of the conversations in the garage indicated that Wong had advance knowledge of what was likely to be found in the pedestals. Wong answered a call on a mobile phone and the contents of that conversation indicated he knew what was in the pedestals. He described the pedestal as having been packed insufficiently and stated that he may have to make it up. He asked the caller how much the caller wanted. Again Davidson DCJ concluded that Wong's participation went well beyond a mere courier or labourer. It put him in the range of what has been described as a mid range participant in the importation, that is someone in between a courier and principal. 162 His Honour reached the following conclusion on the relative roles of Law, Wong and Leung: "Although the participation of Mr Law was somewhat more extensive in one sense than that of Mr Wong and Mr Leung, it was Mr Law who drove the vehicle to his parent's house and made the premises available from which presumably the ongoing supply was going to be affected, nevertheless, the phone calls in the garage suggest to me that his participation ceased or was to cease at that point. He was not, as I have found as a fact, engaged in or to be engaged in any ongoing process of ultimate supply, for it is in my view the phone calls make clear that both Mr Wong and Mr Leung were. Accordingly, whilst Mr Wong and Mr Leung are also, as I have said to be dealt with as being in the middle range of persons involved in the process of importation or prohibited drugs, their participation … was of a more serious kind than that of Mr Law in that it brought them closer to the ultimate evil which these substances are productive of; that is to say, their ingestion by members of this community and the resulting harm which ensues." 163 On his Honour's findings, Wong and Leung were major participants in the distribution chain. Whilst they may not have been principals in the act of importation, the level of objective criminality was of a similar order to a principal. The guideline I have proposed above is not relevant to the cases of Wong and Leung. 164 The Crown submits that the sentences imposed on Leung and Wong were manifestly inadequate and that in each case the head sentence should have been in excess of fifteen years. 165 There was a submission on behalf of Leung that his sentence could be seen to be excessive if the same sentence was imposed on Wong. Wong had previous convictions for assault occasioning actual bodily harm, and robbery in company. These convictions dated from September 1994. Wong received a period of periodic detention and was placed on recognizance but this had expired at the time of sentencing. There is no reason to disturb his Honour's judgment of general equivalence between the two offenders. 166 Counsel for both Leung and Wong relied on the result in the case of R v Spiteri as indicating that the sentences imposed on their clients could not be said to be manifestly inadequate. In that case the Court, by majority, dismissed a Crown appeal in the case of a principal of an importation of a similar quantity. The sentence was fourteen years with a non-parole period of eight years. It is not, however, appropriate to compare any single case with another. 167 Counsel for Leung and Wong both submitted that the Court should, in its discretion, reject the Crown appeal on the grounds of the delay that occurred between the time of sentence on 18 December 1998 and the signing of the appeals on 24 February 1999, a period of some sixty-eight days. 168 The Crown appeal is brought under s5D of the Criminal Appeal Act. That section prescribes no limit on the time in which an appeal may be brought. Where a convicted person brings an appeal against conviction or seeks leave to appeal against sentence, the appeal or application must, by force of s10 of that Act, be filed within twenty-eight days of the conviction or sentence. During the period here under consideration, time would not have run against a convicted person between 25 December and 9 January (Supreme Court Rules 1970, Pt 2 r 5). 169 By letters dated 24 December 1998, solicitors for each of Wong and Leung were advised that the Crown was considering an appeal. 170 The question of delay in the institution of a Crown appeal arises only with respect to the exercise by the Court of a discretion. In this regard delay must be weighed in the balance with other discretionary considerations. The contrast between the absence of any time stipulations in s5D, and the express provision in s10 of the Criminal Appeal Act, indicates that s5D cannot be read as containing an implied stipulation that an appeal should be lodged within a reasonable time. (See eg R v Porter (1953) 53 SR(NSW) 97 at 98). 171 Of particular significance in assessing the weight to be given to delay in the exercise of the discretion is the circumstance which sometimes occurs that the convicted person has served the whole or a substantial proportion of the sentence, particularly in the case where the effect of a successful appeal would be to return a person to prison. (See eg R v Carngham (1978) 140 CLR 487, especially at 494; R v Pham (1991) 55 ACrimR 128 at 135-136; R v Hallocoglu (1991) 21 NSWLR 67 at 80). However, this consideration is not the only circumstance which could justify the Court exercising its discretion to reject the Crown appeal on the basis of delay. 172 In R v Pham, Gleeson CJ said: "Where there has been any delay on the part of the Crown in instituting an appeal in a matter of this kind the question of delay is a relevant and sometimes a decisive discretionary consideration. However, its weight and significance will ordinarily depend on all the circumstances of the case. One of those circumstances may be the view which the Court takes on the matter of the extent of the inadequacy of the sentence under appeal." (at 138) 173 Another such consideration is the relationship between the extent of delay and the prison term to be served. Where, as here, the non-parole period is seven or eight years, the element of delay in the timing of the Crown appeal is not such as to be entitled to substantial weight. This is particularly so as, within a week of the sentence, the Crown had advised the Respondents that an appeal was under consideration. 174 I am unable to discern any error of principle in the way Davidson DCJ approached the exercise of the sentencing discretion. The issue for this Court is whether the sentences themselves are manifestly inadequate, either in the head sentence or the non-parole period. 175 This was a very large importation. The extent of human misery which would have been inflicted on our community if the shipment had been delivered, is immense. If the ultimate sentence is manifestly inadequate, it is likely to be because his Honour failed to give proper weight to the size of the importation. 176 An issue of disparity arises in the case of Wong and Leung. In the South Australian proceedings, Bach An Chan was sentenced to sixteen years with a non-parole period of eleven years. These were the sentences to which Davidson DCJ had before him when sentencing Wong and Leung. On appeal, Bach An Chan's sentence was reduced to thirteen years with a non-parole period of nine years. 177 In the South Australian appeal the Court had before it the sentences imposed by Blanch CJ of DC and Davidson DCJ. Doyle CJ regarded Law as operating at a higher level than Gang Cheng and Yu Shing Cheng and about equivalent to Bach An Chan. It appears his Honour regarded Chan as having a lesser degree of criminality than Leung and Wong. Doyle DCJ said: "I am proposing a slightly lower sentence than that imposed on Law for Yu Shing Cheng, the same sentence as Law for Gang Cheng and a significantly greater sentence for Bach An Chan, who would appear to have been operating at much the same level as Mr Law. The sentence I have proposed for Bach An Chan is also greater than the sentence imposed in NSW on both Wong and Leung. On that basis it could be argued that there is a disparity between the sentence imposed on the NSW offenders and those which I am proposing in this case. The question is whether that should cause me to modify the sentences I am proposing. Taking into account the respective roles of the several players in the operation, I am prepared to accept that there is a disparity between the sentence imposed by the District Court in New South Wales on the NSW offenders and those that I am now proposing. However, whilst a majority (Gibbs CJ, Mason, Wilson and Dawson JJ) in Lowe v The Queen (1984) 154 CLR 606 held that mere disparity between sentences imposed on co-offenders is not of itself a ground for the intervention by an appellate court, if the difference is manifestly excessive and if the disparity engenders a justifiable sense of grievance or gives the appearance that justice has not been done, the higher sentence may still be interfered with even though it may be free from error except in so far as the discrepancy itself constitutes or causes error. See also Postiglione v The Queen (1997) 189 CLR 295 per Gummow J at 322-323. … … … This Court as presently constituted, and as now called upon to impose the correct sentence on the South Australian appellants, is not at the same jurisdictional level as the District Court of New South Wales. Although this Court can exercise no appellate jurisdiction from the District Court of New South Wales, there is a greater reason in the hierarchy of criminal courts in Australia for this Court to reach its own conclusion, notwithstanding that it may create disparity with sentences imposed by the District Court of New South Wales. While there is disparity, and in the case of the sentences imposed by the learned sentencing judge, that disparity might well be described as manifestly excessive, I do not need to consider whether the differences between what I am proposing and the current sentences on the NSW offenders are such that they would necessarily require interference on that ground if this Court were sitting on appeal from them. If the NSW sentences do inspire a sense of grievance, then that may have to be tolerated in the public interest. In all the circumstances if this Court endorses my view as to what are the appropriate sentences, then this Court would be shrinking from its own responsibility in not imposing those sentences. As King CJ said in R v MacGowan (supra), to establish what might be regarded as parity with the NSW sentences would be felt to compound an error which would be unacceptable to the public conscience. This is particularly so in the light of the outstanding appeals to the New South Wales Court of Criminal Appeal. It will be for that court to make up its mind about the adequacy of the New South Wales sentences, and in doing so it may have regard to but will not be bound by this decision. It will be for the parties to take such steps as they may be advised if, at the end of that process, there is a disparity which engenders a justifiable sense of grievance and which gives the impression that justice has not been done." 178 It appears that his Honour, whilst reducing the sentences of the South Australian trial judge, believed that the sentences he proposed to substitute could engender a sense of grievance in the South Australian Appellants because they were too high in relation to the sentences imposed on the Respondents in the present proceedings. 179 I agree with his Honour's analysis. On this basis, the South Australian sentences are not such as would justify any sense of grievance on the part of the present Respondents if this Court were to increase their sentence. 180 In my opinion, on the basis of the facts as found by Davidson DCJ and the objective and subjective circumstances to which he referred, and taking into account the considerations in s16A, the sentences his Honour imposed were lower than the least sentence that could properly have been imposed in each case. 181 Wong and Leung were major participants in a very large importation. The head sentences of twelve years are, in my opinion, manifestly inadequate. On this basis, the sentencing discretion falls to be re-exercised by this Court. 182 In exercising this discretion, I would not wish to be understood as approving the relationship between the head sentence and the non-parole period in the sentences of Davidson DCJ. The non-parole period is just over sixty percent of the head sentence. The non-parole period was, in my opinion, manifestly inadequate. There was no warrant to discount the head sentence to the extent his Honour did. However, bearing in mind the principle of double jeopardy, I do not believe this Court should reject the relationship to the degree to which the level of criminality involved suggests. 183 In each case the least sentence that should have been imposed is an additional two years on both the head sentence and on the non-parole period. 184 The orders I propose are:

2 Sentence quashed. In lieu thereof the Respondent is sentenced to imprisonment for fourteen years with a non-parole period of nine years commencing on 8 November 1997.

2 Sentence quashed. In lieu thereof the respondent is sentenced to imprisonment for fourteen years with a non-parole period of nine years commencing on 8 November 1997.

188 SIMPSON J: I have read in draft the judgment of the Chief Justice with which, subject to the following reservations, I respectfully agree. 189 The reservations concern the suitability of the cases presently before the Court to provide the foundation for a guideline judgment in relation to couriers and persons low in the hierarchy of an importing organisation. It would not, in my view, be appropriate to characterise any of the present respondents to the Crown appeals as low in the hierarchy of this organisation. Law, who appears to have been treated as the least involved of the three, collected the heroin and took it to his own house which he made available for the purpose of extracting the drug from the pedestals in which it was concealed. This places him, in my opinion, in a position of considerable involvement. Leung and Wong were major participants. There is, accordingly, no specific set of individual facts on which to draw for the purpose of promulgating a guideline judgment in relation to couriers and low level participants. 190 Moreover, the need for a guideline judgment in this respect is not immediately apparent to me. The guideline judgment is a useful tool in the two sets of circumstances outlined - where the experience of this Court shows either (i) systematic error or (ii) marked inconsistency in sentencing practice: see, for example, R v Jurisic (1998) 45 NSWLR 209; R v Henry [1999] NSW CCA 107; (1999) 46 NSWLR 346. Neither is here demonstrated. Although this Court has been at pains, in both Jurisic and Henry, to emphasise that the flexibility that is an essential feature of the sentencing exercise remains undisturbed following the promulgation of a guideline, it is to be expected, and indeed is intended, that sentencing courts will, generally speaking, adhere to the range of sentences promulgated as appropriate. In order best to discharge that function it is desirable that this Court have before it specific concrete examples of cases illustrative of the kind and range of cases that confront sentencing judges. The cases would throw up instances not only of the objective facts in relation to offences under the relevant provision but samples of the wide range of individual factors that can affect the sentencing outcome. To promulgate a guideline in the abstract is, in my opinion, undesirable. This Court does not have before it such specific examples of individual cases: what it has before it is a set of three cases, all involving the same importation, involving a very large amount of the drug, and high level operatives. These cases do not and cannot provide an appropriate vehicle for a guideline judgment. 191 The survey of cases undertaken by the Chief Justice demonstrates that sentencing in relation to couriers and low level participants is both consistent and at an appropriate level. It would be sufficient, for the present, to endorse the approach that has thus far been taken, and to reserve promulgation of a guideline judgment to a time when a collection of cases, representing an overview of actual cases involving participants at the relevant level including subjective circumstances, is presented. 192 Having made these observations and on the basis that a guideline is to be promulgated, I agree, on the information before this Court - that is, the information drawn from the judgments in the cases to which reference has been made - with the range of sentences proposed in paragraph 142. 193 I specifically agree with the orders proposed in relation to each of the present respondents.

195 BARR J: I agree with Spigelman CJ.

Schedule 1

Outcomes for Sentence Appeals (NSWCCA) from 17 July 1990 for Couriers and other low hierarchy participants

[A] = discount for assistance 1. Low range trafficable quantity (heroin and cocaine)

SENTENCE Head Non-parole Appeal Schrei 5 3.5 Maddocks 5+4m 4 Chaaroui 6 4 El Khoury 6 3.5 Rachid 5.5 4 Gurung 6.5 4.5 Zayat 5 5 Drakiewicz 7 4.5 Ndubuisi 6 4 Doan 6 3.5 Lawless 5 3 Becheru 7 4.5 Kavinmethavee [A] 4 2.5

• sentence range from 4/2.5 (head/NP) to 7/4.5 (lowest sentence without discount for assistance 5/3.5).

2. Mid range trafficable quantity (heroin and cocaine) SENTENCE Head Non-parole Appeal Kogelbauer 8.5 6 Moreno, Jose 6 4 Ng 8 5+3m Lawson 6 3.5 Crown Moreno, Jorge 10 6 Thapa 6 3.5 Crown Crowdey [A] 4 2.5 Crown Stenovich 8 5 Jelks 8.5 5 El Karhani 6 4 Crown Maunchukingkan 7.5 5.5 Maman 8 5 Lee 8 5+3m Elchami 7 5 Le [A/slight] 7 4.5 Blass [A] 6 4 Turner [A] 7.5 4.5 Abdulhadi [A] 5 3 Yu 5+4m 3.5 Crown Chu [A] 6 3+9m Sanna 9 5 Crown & Severity Gedid 7 5 Nguyen, M 8 5 Crown & Severity

• sentence range from 4/2.5 (head/NP) to 10/6 (lowest sentence without discount for assistance 5+4m/3.5).

3. High range trafficable quantity (heroin and cocaine) SENTENCE Head Non-parole Appeal Lama [A] 8 5+2m Watson 9 6 Montegro [A] 6 3.5 Faneite 6.5 4 Ferrer-Esis, B 9 5 Crown Rodriguez 10 6.5 Lopez-Alonso 9 6 Crown & Severity Gibson 7 5 Crown Raj [A] 4+9m 3.5 Barrentos [A/limited] 7.5 4+8m Stefrace 10 6 De Hesselle, M 8 5 Crown & Severity

• sentence range from 4+9m/3.5 (head/NP) to 10/6.5 (lowest sentence without discount for assistance 6.5/4).

4. Low range commercial quantity (heroin and cocaine) SENTENCE Head Non-parole Appeal Sugahara [A/limited] 9.5 5 Watanabe [A/6m] 10 6 Bernier 9 5.5 Banthithadawit 12 8 Pang [A] 5 3 Whitney [A] 6 3+9m Jiminez 9 6 Barsky 10 6 Hollins [A] 6.5 4 Mari 8 6 Crown & Severity Michael S E 10.5 6 Lea 8 4.5 Crown Chau 12 8 Ong 12 8

• sentence range from 5/3 (head/NP) to 12/8 (lowest sentence without discount for assistance 8/6).

Schedule 2 (CCA's in Other States and Territories)

Sentence Appeals from 17 July 1990 (all States and Territories except NSW) [A] = discount for assistance

1. Low range trafficable quantity (heroin and cocaine)

SENTENCE Head Non-parole Appeal Carmody [A/Limited] (Vic) 3 1.5 Mohyuddin [A/Limited] (Vic) 3+9m 2.5 Rostom [A] (Vic) 4 2.5 Encev [A] (Vic) 4 2.5 Droullos (NT) 8 3.5 Metcalfe (NT) 7 3 Markovina (WA) 5+1.5m 3+3m Crown & Severity

• sentence range from 3/1.5 (Head/NP) to 8/3.5 (lowest sentence without discount for assistance 5+1.5m/3+3m).

2. Mid range trafficable quantity (heroin and cocaine)

SENTENCE Head Non-parole Appeal Foster A/6m 5+8m 3+3m Crown D'Anna A/6m 7+4m 3+11m Crown Laver (NT) 7 3 Duffy [A/ Limited] (WA) 12 5+3m Shlakht (Vic) 7 5 Cohen (Vic) 4.5 2.5 Chedid (Qld) 14+4m 7 Crown & Severity Matta (WA) 12 7

3. High range trafficable quantity (heroin and cocaine)

SENTENCE Head Non-parole Appeal Bamford (SA) 9 4.5 Crown Burns (WA) 7.5 3.4

4. Low range commercial quantity (heroin and cocaine) SENTENCE Head Non-parole Appeal Choo Sien Tee [A/Limited] (SA) 12 7 Crown Wing Tin Li (Vic) 7 4 Siew Beng Hoong (Qld) 14 7 Zakaria (Vic) 14 8 Crown & Severity (*remissions applicable) Zapata (Vic) 8.5 5 Ah Hock Yeo (Qld) 16 8

Schedule 3 (New South Wales CCA) Significant Commercial Quantities (3.5kgs-10kgs) (heroin and cocaine)

SENTENCE Head Non-parole Appeal Warfield 9 6 Crown Lau 12 8 Pereira 13 8.5 Spiteri 14 8 Crown Keyes [A] 15 9.5 Lim [A/Limited] 18 13.5 Nguyen, M 7.5 3 + 9m Crown & Severity (*reduction for disparity)

• sentence range from 7.5/3+9m (head/NP) to 18/13.5 (lowest sentence incorporated discount for disparity otherwise range is 9-18).

Major Importations (heroin and cocaine)(Above 10kgs) SENTENCE Head Non-parole Appeal Daubney 20 15 Ho 14 9 Kapeliotis 12 7 Crown & Severity Chai 24 16 Crown & Severity Postiglione 18 13 + 10m Ng 12 9 Chi Tap Leung 19 15 Crown & Severity Chan Kam Wah 20 16 Crown & Severity Cheung Wai Man 24 18 Crown & Severity Tsui Lok Ping Tyrone 24 18 Crown & Severity Law Yat Kai 24 18 Crown & Severity Martinez 10 7 Tamayo 14 10 Yook 24 18 Lara-Gomez 18 13.5

Lowest sentence of 10 years included a plea of guilty of "substantial benefit" and a discount for assistance. Otherwise range is 12-24 (The offenders whose roles appear to approximate that of a courier (ie. lower level of organisation), are Nguyen (7.5/3+9m), Ho (14/9), Martinez (10/7), and Tamayo (14/10). The other offenders appear to fall higher up in their respective organisations.)

Schedule 4 (Other States and Territories CCA's)

SENTENCE Head Non-parole Appeal Krasnov (Vic) 16 11 An Doa Dang (Vic) 14 10 Thay Dang (Vic) 6 3.5 Thi Duong Quach [A/Limited] (Vic) 12 9 Saa Tee Chung (Vic) 13 10 Fong Huat Su 20 14 Crown & Severity Masaharu Katsuno (Vic) 15 10.5 Crown & Severity Mitsou Katsuno (Vic) 15 10.5 Crown & Severity Asami [Vic] 15 10.5 Crown & Severity Honda [Vic] 15 10.5 Crown & Severity Yu Shing Cheng (SA) 9 5 Crown & Severity Bach An Chan (SA) 13 9 Crown & Severity Gang Cheng (SA) 10 6 Crown & Severity Kwong Chin Tan [A] (Vic) 25 12 Van Hung Duong (Vic) 14 10 Salles (Qld) 20 10

• sentence range from 6/3.5 (Head/NP) to 25/12 (the lowest sentence of 6/3.5 had particular mitigating circumstances. The range would otherwise commence at 9 years). Major Importation (Above 10kgs)

SENTENCE Head Non-parole Appeal Kwong Yue Cheung (WA) 22.5 13 Crown & Severity (*participant at top of range) Wangsaimas (NT) Life 22 Vanit (NT) Life 22 Tansakunt (NT) Life 22

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