Consideration
48 It is apparent from the findings made by the sentencing judge, as summarised in paragraph 30 of the Crown's submissions, they correctly identified the objective circumstances relating to the offence. The critical findings in that respect were those referred to in paragraphs 30(a), (c), (d), (f) and (i) as set out in the Crown's submissions (paragraph 30). Further, it was not suggested by the Crown that the sentencing judge had failed to take account of any other relevant circumstance or that there had been any particular incorrect application of sentencing principles.
49 In that respect, it is a fundamental importance, as the High Court has observed, that with prosecution appeals where specific error of sentencing principle is not demonstrated and the complaint is one of manifest inadequacy of the sentence, it is only where it is shown that the "sentencing is definitely outside the appropriate range that (a court) is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence": Everett v The Queen (1994) 181 CLR 295 at 306; Dinsdale v The Queen (2000) 202 CLR 321 at 340 to 341 and Wong v The Queen (2001) 207 CLR 584 at 605 per Gaudron, Gummow and Hayne JJ and at 624 per Kirby J.
50 The joint judgment in Wong (supra) included the following observations (at pp.605 to 606):-
"So much is, or should be seen as, no more than a statement of elementary principle. If, however, further elucidation of the principle is necessary, it is evident in cases like House v The King … and the discussion of when an appellate court may conclude that a trial judge's exercise of discretion has miscarried.
Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case, appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which would justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result." (emphasis added)
51 The Crown relied upon Regina v Kevenaar (2004) 148 A Crim R 155, [2004] NSWCCA 210 (Hulme J, with who Simpson and Howie JJ agreed) and the judgment of Hulme J in Regina v Schofield (2003) 138 A Crim R 119, [2003] NSWCCA3 and the judgments in Regina v To (2007) 172 A Crim R 121, [2007] NSWCCA 200, Regina v Nguyen, Pham, Vu & To (2005) 157 A Crim R 80, [2005] NSWCCA 362, Regina v Moore [2005] NSWCCA 212 and Regina v Sukkar [2005] NSWCCA 54.
52 However, as also stated by Gaudron, Gummow and Hayne JJ in Wong (supra):-
"Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are seen to be seen as the unifying principles which this disparate sentences may reveal …"
53 In Sukkar (supra), the importation of narcotic drugs in that case, namely, ecstasy tablets, was recorded as having a value of between $7.2 million and $12 million.
54 The appellant, Sukkar, was convicted on a charge of being knowingly concerned in the importation of the ecstasy tablets and he was sentenced to a term of imprisonment for 14 years and a non-parole period of nine years. The tablets had been concealed in 48 columns in a shipping containers which was transported in a ship from Belgium.
55 The appellant appealed against conviction and also sought leave to appeal against sentence. The Crown appealed against the leniency of the sentence.
56 The Crown case was that the appellant's knowing concern was demonstrated by his participation in the unloading of the columns after they were delivered to premises in Sydney owned by him, in the examination of the columns and the sorting of tablets removed in a search for genuine ecstasy among the inert tablets. His involvement also included the making of extensive inquiries as to the whereabouts of the balance of the consignment which he, and his brothers, suspected had been stolen either by those involved at the European end of the shipment, or by associates who had been responsible for the clearance and initial delivery of the container into a warehouse in Brisbane.
57 The appellant in that case contended that he was innocently unaware of, and had no knowledge of, the importation until 1 December when his brothers came to him for advice, by which time, it was contended, the importation process had ended. The case involved 34.401 kilograms of pure ecstasy. He was arrested on 5 December 2003.
58 Wood CJ at CL, in dismissing the Crown appeal against sentence, observed:-
"151. Upon my assessment, absent any evidence of the appellant having been knowingly concerned in the venture before 24 November, of him standing to gain any financial benefit from it, his objective criminality needed to be assessed upon the basis of the active assistance which he provided to his brothers, in permitting the cool room and tablets to remain on his premises, in assisting physically in the attempts to recover drugs from them, and in pursuing various inquiries aimed at discovering where the missing drugs were so as to retrieve them for his brothers."
59 The Court, in Sukkar (supra), determined that his role was that of a knowing assistant to his brothers rather than as a principal, or accomplice, who expected monetary reward. It was emphasised that that was not to say that it was an insignificant role. By the time he had become deeply involved from 1 December, he clearly knew, it was held, that the venture was one of considerable substance, which potentially involved very large sums of money. Wood CJ at CL further observed (at [152]):-
"… despite his prior good character, he became enthusiastically involved and his objective criminality was high, although not as high as that of those who stood to gain financially from it."
60 In the present case, it was observed that the respondent had previously been a person of good character and had not been convicted of a previous criminal offence. The amount of drugs in the present case was almost double that in Sukkar (supra) and there are some similarities in the role performed by the appellant in Sukkar at least insofar as it involved the storage in premises controlled by him and his physically assistance in the attempts to recover the drugs similarly to the activity of the respondent in the present case.
61 On the findings in Sukkar (supra), the appellant had been involved in the enterprise from about 24 November through until just before his arrest. Accordingly, the period of time was approximately five days. This is in contrast to the respondent's participation in the present proceedings of something less than a day. The Crown in oral submissions emphasised that one might readily infer that, but for the intervention of the police and the respondent's arrest, he would have continued to participate in activities associated with the extraction of the drugs. That inference is certainly open although how long he would have continued cannot, of course, be precisely known.
62 The sentence has not, in my opinion, been established as one that is outside the appropriate range of sentences, having regard to all of the relevant objective and subjective circumstances which the sentencing judge identified and evaluated. His Honour's later sentencing remarks in relation to the co-offenders, Cheun and Au, do not, of course, in themselves, provide or constitute a basis for determining whether the sentence imposed on the applicant fell inside or outside the relevant range of sentencing in his case. They, nonetheless, provide a context in which his criminality was assessed, by reference to this subservient and relatively short-lived role in contrast to that of his co-offenders.
63 Whilst the respondent's role was similar to that of the appellant in Sukkar, in the respects earlier discussed (although not quite as extensive either in terms of the duration or scope of the participation), taking account of the quantity of pure MDMA (74 kilograms) involved in the consignment of ink containers delivered to the respondent's premises, I do not consider that the Crown has established a basis for contending that the sentence was manifestly inadequate.