1 I invite Whelan JA to deliver the judgment of the Court.

2 On 1 December 2009, the applicant was sentenced in the County Court for the offence of conspiracy to import a commercial quantity of a border controlled drug, being cocaine. The importation began in Mexico.

3 The applicant pleaded guilty and was sentenced to be imprisoned for 12 years. A period of seven years was fixed as the period before which the applicant would be eligible for release on parole.

4 The alleged conspiracy involved the applicant, Mr Juan Ernesto Suarez Lopez, Ms Olivia Barajas Gloria and her brother, who remained in Mexico, Mr Gustavo Barajas Gloria. The cocaine to be imported had been removed by authorities in the United States en route to Australia. It weighed 49.8 kilograms and varied between 61.4 per cent and 75.3 per cent purity. There was, therefore, approximately 30 kilograms of the pure drug.

5 The applicant's plea came at an early stage. Obviously the prosecution was interested in him as a potential witness in the cases against Mr Suarez Lopez and Ms Barajas Gloria. In the course of his reasons for sentence, the judge noted that:

On 21 August 2009, at the conclusion of the committal, you indicated your intention to plead guilty in this matter, and offered to provide assistance to the authorities. You were then moved from the MRC to Port Phillip Prison in early September. In October 2009 you were interviewed at length by the Australian Federal Police at Port Phillip Prison. During an interview that extended to some four hours, you provided a great deal of information by way of co-operation. You indicated to the police at the conclusion of that process that you were willing to sign a formal statement containing the matters that you had told them about during that four hour interview.

6 Later in the reasons for sentence, the sentencing judge set out the matters that he took into account in reaching the sentence he imposed and in determining the non-parole period which he set.

7 One of the matters he took into account was expressed in the following terms:

Sixthly, from your point of view, you have done all you could by way of co-operating with the AFP, although as it has turned out, nothing has come of it to date.

8 Thus whilst the applicant was given credit for having co-operated with the Australian Federal Police, it was limited. The respondent took the view that the assistance offered by the applicant was not bona fide and was not full and frank. He was not sentenced as a person to whom s 21E of the Crimes Act 1914 (Cth) applied.

9 The applicant now applies for leave to appeal against his sentence on the ground that fresh evidence should be received and acted upon by this Court. Essentially that fresh evidence concerns the details of statements made and evidence given by the applicant in the trials of his co-accused, in particular Mr Suarez Lopez, subsequent to him being sentenced.

10 It was submitted that as a result of that evidence a different and lesser sentence should now be imposed.

11 The respondent concedes that the ground is made out, that there is fresh evidence and that, as a result, the applicant falls to be re-sentenced pursuant to s 282(1) of the Criminal Procedure Act 2009 (Vic).

12 In our opinion, the concession made by the respondent was appropriate and proper.

13 The circumstances of the applicant's offending were set out in a document headed 'Summary of prosecution opening' presented by the Commonwealth Director of Public Prosecution to the sentencing judge.

14 For the purposes of this application it is sufficient to briefly summarise the essence of what occurred.

15 The applicant, Mr Suarez Lopez, Ms Barajas Gloria and her brother, Mr Barajas Gloria, are all from Mexico.

16 In September 2008, the applicant, Mr Suarez Lopez and Ms Barajas Gloria applied for and obtained visas to come to Australia, ostensibly for reasons associated with the importation of concrete garden furniture.

17 Under the supervision and direction of Mr Barajas Gloria, cocaine was secreted in hollowed out sections of four concrete cylinders which were placed in pedestals manufactured to support garden statues. These pedestals were, in turn, stacked into a shipping container. The container was then shipped from Mexico to a business premises in Melbourne, Victoria.

18 The applicant, Mr Suarez Lopez and Ms Barajas Gloria then travelled to Australia, acting under the direction of Mr Barajas Gloria. He was the person who recruited the applicant to the enterprise.

19 United States authorities intercepted the shipment on its way to Australia. The authorities removed and seized the cocaine, replacing it with an innocuous substance, before repacking the container and alerting the Australian authorities.

20 The applicant, Mr Suarez Lopez, and Ms Barajas Gloria arrived in Sydney in October 2008 and then travelled to Melbourne.

21 In November 2008, the container arrived in Melbourne. The applicant, Mr Suarez Lopez and Ms Barajas Gloria commenced unpacking the container and noticed features of the cylinders which led them to suspect that they had been interfered with or replaced. This prompted them to make phone calls which the authorities intercepted.

22 The applicant and Ms Barajas Gloria, at that point, suspected that the cocaine had in fact been removed by Mr Suarez Lopez.

23 It was shortly after this that the three of them were arrested by the Australian Federal Police. On the day of his arrest, the applicant was interviewed and responded to the questions he was asked by making no comment.

24 After being sentenced on 1 December 2009, the applicant provided more information to the Australian Federal Police and made a further statement on 16 August 2010. He was called as a witness at the trial of Ms Barajas Gloria and Mr Suarez Lopez on 23 August 2010.

25 At a preliminary hearing in the absence of the jury, the applicant gave evidence and was crossexamined by the prosecutor as well as counsel for the two accused. Ms Barajas Gloria applied for and was granted a separate trial from Mr Suarez Lopez. Both trials were then adjourned.

26 The trial of Mr Suarez Lopez was to commence in July 2011.

27 The applicant then made a further statement which was completed in March 2011. In this statement he implicated Mr Suarez Lopez as being centrally involved in the concealment and the importation of the cocaine in the cylinders which had been dispatched to Australia.

28 The applicant's account had the effect of exonerating Ms Barajas Gloria.

29 Ultimately, Ms Barajas Gloria pleaded guilty on 15 April 2011 to one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine. She was sentenced to five years' imprisonment with a nonparole period of two years and four months.

30 In the respondent's submission, the failure of the applicant to implicate Ms Barajas Gloria remains a qualification on the candour which he showed in his statements to the authorities and on the value of his assistance. We agree with that submission.

31 The trial of Mr Suarez Lopez commenced on 8 August 2011. Mr Suarez Lopez represented himself. The applicant gave evidence consistent with his statements, maintaining, among other things, that Ms Barajas Gloria was unaware of the drugs secreted in the cylinders. He gave evidence over eight days at that trial. The jury failed to reach a verdict and was discharged.

32 The second trial of Mr Suarez Lopez commenced in July 2012. Again the applicant was called as a witness. He gave evidence during that trial over three days. Mr Suarez Lopez represented himself and cross-examined the applicant.

33 Again the jury failed to reach a verdict and was discharged. Following that, the Director decided that the prosecution of Mr Suarez Lopez would be discontinued.

34 In his evidence given at Mr Suarez Lopez's trials, the applicant described the arrangements which were made for the cocaine to be shipped into Australia. He said that the payment to him was to be US$3,000. He said his role was to come to Australia, unload the container and make sure the drugs were given to the proper person. He said Mr Suarez Lopez was in charge. Although he had been present when the cocaine was packed in Mexico, the applicant said he did not actually see it go into the cylinders but he had been told that it was there. He maintained that everything he did was done at the request of Mr Suarez Lopez.

35 Much of his evidence-in-chief was constituted by the playing of intercepted telephone calls. The applicant, in his evidence, was able to identify the speakers and explain the purpose of the phone calls.

36 Notwithstanding the qualification placed by the respondent on the concession that the ground of appeal has been made out, the applicant's evidence was centrally important to the case that the prosecution presented against Mr Suarez Lopez.

37 In R v Nguyen,[1] Redlich JA identified the principles which apply to the admission of fresh evidence following the imposition of sentence as follows:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the court, any different sentence should be substituted to avoid a miscarriage of justice.

38 His Honour went on to note that the consistent approach of the Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence 'throws significant new light on the pre-existing facts'.[2]

39 As we earlier indicated, the respondent concedes that within the meaning of those principles, the ground of appeal is made out and the only question remaining is what sentence should now be imposed.

40 The applicant is now 33 years of age. He was originally sentenced on the basis that he was a 'trusted observer' of the importation into Australia.

41 It was accepted by the sentencing judge that he had neither the experience nor the capability of being involved as a principal or as an organiser. His financial reward was modest. He pleaded guilty at an early stage of the proceedings. He expressed remorse and he co-operated with the Australian Federal Police.

42 That co-operation developed to the point where he gave evidence against one of his accomplices in circumstances that would regularly attract a significant sentencing discount.

43 The respondent acknowledges the value of the evidence given by the applicant against Mr Suarez Lopez. The Crown obviously relied substantially on that evidence in Mr Suarez Lopez's two trials.

44 In the course of argument counsel referred to the authorities dealing with sentencing discounts particularly in circumstances where the co-operation is less than full.

45 Mr Edney, who appeared on behalf of the applicant, drew the Court's attention to Scerri v The Queen,[3] an appeal against sentence in which it was argued that the sentencing judge accorded too little weight to the value of the appellant's co-operation with authorities. It was noted that the sentencing judge was not given accurate information about the nature and extent of the appellant's co-operation. In fact, in the course of the plea, the prosecutor told the sentencing judge that the evidence which the appellant could give was 'of such limited value' that he may not even be called to give evidence.[4] However, the appellant was called to give evidence at a committal proceeding and was likely to be giving evidence at the trial of the relevant charges. The Crown submitted that although the appellant had co-operated with the authorities, the evidence was of no great value as it did not directly implicate any third person. This Court rejected the Crown's contention, noting 'the fact that the appellant could give evidence implicating only [x] and not others higher in the trafficking enterprise, should not have had any significant effect on the discount to be given for his co-operation'.[5] The appellant in that case had 'given full and genuine co-operation to the authorities',[6] a clear point of distinction from the current appeal.

46 Mr Edney also referred to the case of XY v The Queen where this Court reduced a convicted drug importer's sentence, despite his limited assistance, 'principally to encourage offenders to inform, against other offenders'.[7]

47 Mr Young, who appeared for the Crown, directed us to the decision in Thing Tang and Others in which the Court left open the question of whether a 'prisoner must establish that the assistance given was full and frank'.[8] In addition, Mr Young cited the New South Wales Court of Criminal Appeal decision of Regina v YLC[9] in which Spigelman CJ considered the treatment to be afforded to offenders that provide 'partial assistance' to the authorities. Mr Young highlighted the following passage in that judgment:[10]

As was said in Cartwright, quoted above, a false disclosure attracts no discount at all. I would go further and say a disclosure which is partially false and partially helpful may not attract any discount at all. It is necessary to evaluate, in each such case, the degree of co-operation overall. In the present case that was minimal.

48 We have taken into account what has been said in the authorities.

49 The applicant's assistance was not as full and candid as it might have been. In this respect we refer to the statements he made in relation to Ms Barajas Gloria. His co-operation can nevertheless be seen to be indicative of remorse and a willingness to accept responsibility for his actions and his evidence was of real significance in the prosecution case against Mr Suarez Lopez. Such co-operation is, as a matter of policy, to be encouraged and that is done by a significant sentencing discount.

50 Finally, given his nationality, his native tongue and the absence of family and other associates in Australia, we accept that imprisonment for the applicant has been burdensome and indeed more so than for others.

51 When the applicant was sentenced in December 2009, the sentencing judge took into account his co-operation with the Australian Federal Police but noted that no consequence had arisen from that co-operation. Such consequences have since arisen and in our opinion a reduction in the applicant's sentence should occur.

52 Had the applicant's co-operation been complete, we would have been inclined to re-sentence him in a manner which would have resulted in his immediate eligibility for parole. However, in the circumstances as they are, we would grant leave to the applicant to appeal against his sentence, allow the appeal and re-sentence him on the count of conspiracy to import a border controlled drug, namely cocaine, in a commercial quantity to a period of nine years' imprisonment. We would fix a period of five years and six months to be served before the applicant becomes eligible for release on parole.

[1] [2006] VSCA 184, [36] (citations omitted).

[3] (2010) 206 A Crim R 1.

[7] [2013] VSCA 261, [30].

[8] [1997] VICSC 50; (1997) 96 A Crim R 550, 573.

[9] [2005] NSWCCA 394.