The Queen v Omari [2022] ACTCA 4

[2022] ACTCA 4

Court of Appeal (ACT)|2022-02-14|Before: Elkaim ACJ, Mossop and Banks-Smith JJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2022-02-14

Before

Elkaim ACJ, Mossop and Banks-Smith JJ

Catchwords

APPEAL - CRIMINAL LAW - Crown appeal against sentence - drug
offences - joint criminal enterprise of importing commercial quantity of border
controlled drug - trafficking in drug other than cannabis - where period of
imprisonment as to importation offence wholly cumulative

Source

Original judgment source is linked above.

Catchwords

APPEAL - CRIMINAL LAW - Crown appeal against sentence - drugoffences - joint criminal enterprise of importing commercial quantity of bordercontrolled drug - trafficking in drug other than cannabis - where period ofimprisonment as to importation offence wholly cumulative- whether sentencemanifestly inadequate - whether residual discretion to intervene should beexercised - appeal allowed - re-sentenced

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: The Queen v Omari

Citation: [2022] ACTCA 4

Hearing Date: 11 November 2021

Decision Date: 14 February 2022

Before: Elkaim ACJ, Mossop and Banks-Smith JJ

Decision: See [126]

Catchwords: APPEAL - CRIMINAL LAW - Crown appeal against sentence -drug offences - joint criminal enterprise of importing commercial quantity of border controlled drug - trafficking in drug other than cannabis - where period of imprisonment as to importation offence wholly cumulative - whether sentence manifestly inadequate - whether residual discretion to intervene should be exercised - appeal allowed - re-sentenced

Legislation Cited: Crimes (Sentencing Act) 2005 (ACT), Part 4.4 Crimes Act 1900 (ACT), s 114C Crimes Act 1914 (Cth), Part IB Criminal Code 2002 (ACT), s 603 Criminal Code Act 1995 (Cth), ss 11.2A, 44, 307.1, 603, 713 Prohibited Weapons Act 1996 (ACT), s 5

Cases Cited: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Bui v The Queen [2015] ACTCA 5 CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 Director of Public Prosecutions (Cth) v Englisch [2009] VSCA 71 Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Green v The Queen [2011] HCA 49; 244 CLR 462 He v Sun [2021] NSWCA 95; 104 NSWLR 518 Hili v The Queen [2010] HCA 45; 242 CLR 520 Legault v The Queen [2014] NSWCCA 271 Melham v The Queen [2011] NSWCCA 121 Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Agboti [2014] QCA 280; 246 A Crim R 72 R v Campbell [2010] ACTCA 20 R v Chan [1999] NSWCCA 103 R v Considine [2013] NSWCCA 97 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v Edwards (1996) 90 A Crim R 510 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 R v Hou [2017] ACTCA 14 R v Mauger [2012] NSWCCA 51 R v McMurray [2011] QCA 319 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 R v Omari [2021] ACTSC 18 R v Poulakis [2020] ACTSC 247 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 R v Robertson [2000] NSWCCA 266 R v Rosso Bernardo [2017] QCA 6 R v Shortland [2018] NSWCCA 34 R v Simon [2003] NSWCCA 147; 142 A Crim R 166 R v Todoroski [2010] NSWCCA 75 R v TW [2011] ACTCA 25; 6 ACTLR 18 R v Watson [2018] ACTSC 172 R v Yavuz (No 2) [2020] ACTSC 248 RCW v The Queen (No 2) [2014] NSWCCA 190; 244 A Crim R 541 Siddiqi v The Queen [2015] NSWCCA 169 The Queen v Lee [2017] ACTCA 30 Thompson v The Queen [2018] ACTCA 2 Thorn v The Queen [2009] NSWCCA 294; 198 A Crim R 135 Yavuz v The Queen [2022] ACTCA 5 Yip v The Queen [2017] VSCA 231

(a) A number of communications were recorded between Mr Yavuz, Mr Poulakis and the offender on 24 and 25 November 2017, in which Mr Yavuz instructed the offender to return to Canberra from Sydney. (b) At about 4:18pm on 28 November 2017, a call between Mr Yavuz and the offender was recorded, in which the offender asked Mr Yavuz if he should visit him the next day and Mr Yavuz suggested that he bring Mr Jabal and Mr Jabal's brother. Later in the conversation, the offender said he may have 'very, very good news' for Mr Yavuz when he visited the next day. Mr Yavuz asked: 'Who's it benefit?' The offender responded: 'you and me'. (c) At about 8:36pm on 28 November 2017, a telephone call between the offender and Mr Poulakis was intercepted, during which they agreed to meet at the offender's house and go for a walk to the park. The offender asked if Mr Poulakis knew anyone who would be interested in buying his block in Murrumbateman as he was going broke. Mr Poulakis told him not to worry because soon he would be able to put 'five storeys on there'. (d) At about 7:20am on 29 November 2017, calls between the offender and Mr Poulakis were intercepted, during which the offender instructs Mr Poulakis to leave everything in the offender's car, which he would leave unlocked at his house. (e) At about 1:30pm on 29 November 2017, a call was made from one of the falsely subscribed numbers to Australia Post from the vicinity of the ANU. During the call, the caller identified himself as [fictitious] Daniel Tompkins and enquired as to the status of Consignment 1. The caller was advised that the consignment had been delivered to Fyshwick. Approximately 25 minutes later, the offender called Mr Poulakis, during which Mr Poulakis asked: 'Did you - did it get sorted out in the end or is it no good? Like you couldn't get it?' The offender responded that he had 'a bit of news, good and bad'. They agreed to meet at the ANU. At about 4:05pm that day, a call between the offender and Mr Yavuz was intercepted; the offender stated that he had received 'some potentially good news today'.

[156] In relation to the Commonwealth offences, the character, antecedents, age, means, and physical or mental condition of an offender are relevant sentencing considerations under s 16A(2)(m) of the Commonwealth Crimes Act. In relation to the Territory offences, the cultural background, character, antecedents, age, and physical or mental condition of the offender are relevant sentencing considerations under s 33(1)(m) of the Sentencing Act. [157] A pre-sentence report (PSR) dated 10 July was prepared in relation to the offender. The PSR includes the following information about the offender's subjective circumstances. [158] The offender is in his early thirties, the eldest of six children. The offender's parents migrated to Australia from Lebanon in 1987. The offender reported a stable and fun childhood. His father was previously a university lecturer and now teaches Arabic. His mother is an Arabic interpreter. The offender advised that his adult siblings all have reputable careers and his immediate family acts as a strong prosocial influence. The offender reported having a positive relationship with his parents that has been negatively impacted by his offending. [159] The offender provides regular support to his parents, whose health is declining. He also indicated that he provides financial support to an uncle who is living in Turkey, after having fled Syria in 2011. This information was verified by the offender's mother. [160] The offender indicated that, as at July 2020, he had recently commenced a new relationship. He reported that his new partner has children and he has commenced a caring role for them. The offender indicated that he intends to marry his new partner in the future. [161] The offender completed Year 12 in Melbourne and commenced a Bachelor of Computer Science and Aviation. He advised that he has not yet completed his degree due to the high cost involved with obtaining a pilot's licence. The offender indicated that he moved back to Canberra to enter the work force to assist in funding the final component of his degree. [162] The offender indicated that he intends to complete his bachelor's degree with the hopes of commencing a master's degree. At the time the report was written, the offender was employed in a permanent full-time position in the IT industry, a position which he had retained for more than two years. This information was verified by his employer, who described the offender as being a hard worker with expertise in IT. [163] The offender reported experiencing financial stress at the time of his offending. He was paying a mortgage, financially supporting his then girlfriend and his uncle, and paying board at his parents' house. He advised that he had accumulated a large debt in the form of personal loans, which he claimed were attributable to his legal costs. The offender advised that he sold his property in 2020 to alleviate some financial stress. He indicated that he is now able to manage the repayment of these loans on his current full-time income. [164] The PSR states that, at the time of the offending, the offender reported being influenced by anti-social companions. He stated to the PSR author that he had been peer pressured and that his agreeable nature had been a factor in his offending. The PSR indicates that, as at July 2020, the offender maintained contact with a small group of pro-social friends. [165] At the time of the offending, the offender reported that he was using cocaine recreationally. He advised that he ceased using cocaine at the time of the current charges and has not used drugs since then. [166] The offender is a practicing Muslim and attends the local mosque once a week. He reported that he has ceased partaking in structured leisure activities, as his court matters have taken priority. He previously enjoyed regular involvement with his local soccer club and indicated his interest in recommencing in the future. An ICO assessment report dated 30 October 2020 indicated that the offender had registered with his local soccer club where he played to completion of the season. [167] The offender reported no mental health concerns prior to being charged with these offences. The offender attended an appointment with his GP in 2019 and was treated for suspected major depressive disorder and post-traumatic stress disorder; he was offered a referral to a psychologist but did not follow through with this. An ICO assessment report dated 30 October 2020 indicated that, following the preparation of the PSR, the offender obtained a referral to a psychologist under a Mental Health Care Plan; he had attended two psychology sessions as at October 2020. [168] In relation to the offender's attitude to the offences, the PSR indicates the following: Mr Omari advised he agreed with the disputed version of the Statement of Facts that were tendered to the Court. Mr Omari appeared to minimise his offending behaviour and attempted to excuse and justify his actions. He reported that he had only played a minimal part in the offences and denied premeditation was a factor. Mr Omari claimed he had reflected on the potential impact of the illicit substances entering the community. Mr Omari reported self-concern and advised that he was hesitant to offer insight into his offending behaviour for fear of further implicating himself. Mr Omari reported that he was under financial stress at the time of the offending and had been motivated by financial gain. Mr Omari advised that his antisocial companions played a large factor in his offending behaviour. Mr Omari claimed that he had been a victim of peer pressure and that his agreeable nature was also a factor in his offending behaviour. [169] The offender was assessed as having a medium-low risk of reoffending, due to his lack of structured leisure activities, mental health concerns, and attitudes. The PSR notes that the offender has several protective factors, including employment, prosocial family support, and stable accommodation.

The principles relating to sentencing for drug importation offences contrary to the Criminal Code (Cth) are well-established.
Those principles include that general deterrence is to be given chief weight on sentence and stern punishment will be warranted in almost every case, given the difficulty of detecting drug importation offences and the great social consequences that follow; factors personal to the offender (such as prior good character) are therefore given less weight than might otherwise be the case; the criminality of an offender must be assessed having regard to their involvement in the importation; the weight of the drug imported is not the principal factor to be considered, but is relevant; as a matter of common sense it should be inferred that a person importing drugs is doing so for profit; and the sentence must be such as would deter would-be offenders despite the potential for profit. The authorities are collected in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72] (extracted below); and see also Bui v The Queen [2015] ACTCA 5 at [41].
No issue was taken by the appellant with the sentencing judge's identification of those principles. The appeal concerns their application. Respective submissions
The appellant accepted that subjective factors had a part to play, noting the respondent's limited criminal history, expressed remorse and contrition, a period of demonstrated rehabilitation and good prospects for rehabilitation. However, it was submitted that the sentencing judge had allowed the subjective features to 'overwhelm' the required primacy of denunciation and deterrence. The appellant pointed to general deterrence, the role of the offender and the weight of the drug as being significant.
As to the weight, in this case it was 2.2 kilograms, which is more than four times the weight necessary to qualify as a commercial quantity of MDMA.
As to the role of the respondent, the appellant submitted that while he certainly played a lesser part than other persons involved in the joint enterprise, he nevertheless was a willing and active participant who made certain unilateral decisions such as the use of an address for the first consignment of drugs at the ANU.
As to these matters, the respondent submitted that there were examples where a lesser sentence was justified due to demonstrated rehabilitation, such that general deterrence could only play a limited role, citing Thorn v The Queen [2009] NSWCCA 294; 198 A Crim R 135 at [57]-[58]. The respondent also cited R v Mauger [2012] NSWCCA 51 at [38] as an example where general deterrence was said to be adequately met by a good behaviour bond.
The respondent said that there was a diminished need for specific deterrence, having regard to subjective factors, such as the evidence of rehabilitation, referring to: the pre-sentence report; the character references from the respondent's father, a work colleague and the mother of the offender's current partner; a lengthy letter from the offender outlining his contrition and rehabilitation; and the evidence from the respondent's mother, including about the significant changes that she had seen in the respondent since the charges. The respondent submitted that the sentencing judge's finding that the weight to be accrued specific deterrence was therefore 'significantly reduced' was appropriate, and that despite that finding her Honour was cognisant of the importance of general deterrence, having referred to the objective seriousness of the offending when declining to dispose of the sentencing task by way of an ICO.

In light of the detailed submissions made by both parties with respect to comparative cases, we will address them briefly, whilst acknowledging the limitations referred to by the authorities.
The appellant submitted that the two most persuasive comparatives were Director of Public Prosecutions (Cth) v Englisch [2009] VSCA 71 and Siddiqi v The Queen [2015] NSWCCA 169 (Simpson, Rothman and Wilson J). Both Englisch and Siddiqi were referred to by the sentencing judge: reasons at [225].
In Englisch, the offender pleaded guilty to one count of aiding and abetting the importation of a commercial quantity (555.48 grams) of MDMA. The offender had previously been convicted of importing a commercial quantity of drugs in similar circumstances. The offending was committed very shortly after the expiry of the recognizance order imposed for the previous importation, and this was considered an aggravating feature. The offender had suffered a work injury, financial loss and was severely depressed at the time the offences were committed. The offending was described as serious by the sentencing judge. The offender was sentenced to 7 years 6 months' imprisonment, with a non-parole period of 5 years. An appeal against the sentence was dismissed.
In Siddiqi, the offender was found guilty after trial of jointly importing a pure-weight of 1.48 kilograms of cocaine. The offender recruited innocent people to receive the parcels of cocaine at their homes. The offender was found to have played a key role but was only expecting to receive a modest financial reward. The offender was 19 years of age at the time of offending and came to Australia from Afghanistan as a child. The offender's childhood was difficult and he developed a major depressive disorder. The offender was sentenced to 7 years 6 months' with a non-parole period of 3 years and 9 months. In dismissing the offender's appeal against sentence, Wilson J described the need for a sentence that reflected the 'serious criminality' of the offending (at [129]).
Both cases involve drug quantities that were considerably smaller than that the subject of the respondent's offending.
The appellant referred to an additional four cases that were not raised before the sentencing judge. The respondent complained about this approach. For the purpose of sentencing the prosecution should ordinarily refer to those cases that it says indicate a relevant range of sentencing against which the challenged sentence is to be assessed. The respondent addressed all of the additional cases for the purpose of the appeal and so the consequence has not been to the significant disadvantage of the respondent. We note in any event that the appellant continued to emphasise Englisch and Siddiqi and we have similarly given weight to those cases as proposed comparisons. The four other cases now referred to do little more than indicate that Englisch and Siddiqi should not be seen as outliers.
In R v Agboti [2014] QCA 280; 246 A Crim R 72 the Queensland Court of Appeal allowed an appeal against sentence, and imposed a head sentence of 9 years 6 months' imprisonment with a non-parole period of 4 years 6 months for the importation of 2.326 kilograms of pure methamphetamine. The offender was 23 years old; a mere courier and her only financial reward the cost of an airline ticket if she carried some 'medicine' to Australia. The flight route involved many stopovers, a matter said to have increased the risk of detection, and unlikely to have suggested to the offender that she was involved in drug importation of the scale involved (at [52]). The offender had no knowledge of the quantity of drugs involved, co-operated with police and had endured traumatic events in the months preceding the offending, leaving the offender in a 'fragile state of mind bordering on desperation' to leave her country (at [51]). There was no suggestion that any demonstrated rehabilitation was a relevant factor.
In Legault v The Queen [2014] NSWCCA 271 the New South Wales Court of Criminal Appeal dismissed the offender's appeal against a sentence of 9 years and 4 months' imprisonment with a non-parole period of 6 years, following a plea of guilty for offending involving the importation of 2.71 times the commercial quantity of methylamphetamine. A 25% reduction for the plea was applied to a starting sentence of 12 years 6 months' imprisonment. The offender was a mere courier and had no role in prior planning. He had a historical conviction for possessing a substance with intent to traffic, and other convictions. A submission that the criminality of the offending was at the 'lower end of the range' was rejected (at [31]).
In Yip v The Queen [2017] VSCA 231 the Victorian Court of Appeal dismissed an appeal against a sentence of 7 years 6 months' imprisonment with a non-parole period of 5 years 6 months following a plea of guilty to importing 1.79 times the commercial quantity of methamphetamine. Yip had a limited prior criminal history, undertook a role as courier, was 23 at the time of sentence, co-operated with authorities and it was considered that imprisonment would be more onerous for him as he would be held in secure protection and isolated from his family and friends in Hong Kong.
In R v Rosso Bernardo [2017] QCA 6 an application for leave to appeal (on the basis of parity) against a sentence of 9 years imprisonment with a non-parole period of 5 years 6 months was dismissed. The applicant was a courier who had pleaded guilty to importing 1.03 times the commercial quantity of cocaine, had no prior convictions and was also aged 23 at the time of the offending. He carried a greater amount of the drug than his co-offender. Some weight was given to his isolation from family and friends in a foreign gaol, but this was limited given it was a predictable consequence of the offending. There was no suggestion that any demonstrated (as against potential) rehabilitation was a relevant factor.
The respondent submitted that the sentence imposed on the respondent in the present case was within a permissible range and that the so-called comparable cases, in particular Englisch and Siddiqi, were easily distinguishable from the present case.
It was contended that the conduct of the offender in Englisch involved a greater level of criminality because he was involved in negotiating prices and profit margins prior to the import and was found to have facilitated the flow of funds to Bulgaria. His subjective circumstances included prior convictions for importation. It was not an example of recklessness as to quantity. In Siddiqi, the role of the offender in recruiting third parties to accept delivery of consignments and maintaining contact with them was said to place the offending into objectively a more serious category of offending.
Although recognising a difficulty in finding comparable cases, the respondent provided a schedule of six decisions of intermediate appellate courts, namely R v Robertson [2000] NSWCCA 266; RCW v The Queen (No 2) [2014] NSWCCA 190; 244 A Crim R 541; R v McMurray [2011] QCA 319; R v Considine [2013] NSWCCA 97; R v Simon [2003] NSWCCA147; 142 A Crim R 166; and Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218. The sentencing judge included a summary of those decisions in her reasons at [213], although whether they were assessed as providing any particular guidance is not apparent. For convenience, we extract those summaries, which relevantly commence at item (b) in [213] of the reasons:

(b) R v Robertson [2000] NSWCCA 266: The offender agreed to receive a package and deliver it to another person in exchange for $1000. The offender was aware drugs would be involved but did not know precisely what drugs or the quantities involved. Upon receipt of the package, the offender was apprehended travelling to deliver the package and admitted to police what he had done. The consignment contained 167.1 grams of methylenedioxyamphetamine, commonly known as ecstasy. The offender subsequently provided assistance to authorities in the investigation of the matter. The offender was 22 years of age and had no prior criminal history. The offender received a sentence of three years' periodic detention, suspended after one year. An appeal by the prosecution asserting inadequacy of the sentence was dismissed. (c) RCW v The Queen (No 2) [2014] NSWCCA 190; 244 A Crim R 541: The offender pleaded guilty to an offence of aiding and abetting the attempted importation of commercial quantities of border-controlled drugs. The drugs comprised 3.96 kilograms of pure cocaine, 2.25 kilograms of methylenedioxymethamphetamine, 3.79 kilograms of paramethoxymethamphetamine, and 1.34 kilograms of methamphetamine. The offender was to organise the transportation and storage of the consignment once it had arrived in Australia, however he approached the police and informed them of the operation before he had completed this task. He stated to police that he had been pressured into assisting with the operation by a criminal organisation. The offender then continued to participate in the operation with the knowledge of the police. The offender, a man in his mid-fifties, had no prior criminal convictions and was of prior good character. There was no evidence to suggest he stood to gain financially from the operation. The offender was initially sentenced to 5 years and 6 months imprisonment, with a non-parole period of 3 years. This was reduced on appeal to 2 years imprisonment, and after 12 months to be released on recognizance of good behaviour for 1 year. (d) R v McMurray [2011] QCA 319: The offender pleaded guilty to one offence of conspiracy to import a commercial quantity of a border-controlled drug, and another of conspiracy to import a marketable quantity of a border-controlled drug. The operation was originally to involve the importation of 500 kilograms of cannabis from Papua New Guinea, however, this amount was later reduced to 25 kilograms. The offender provided assistance to the principal organisers by providing funds in the amount of $1000 and by agreeing to assist with the distribution of the drug once it had arrived in Australia. The offender was also to receive a 10 per cent 'cut' of the cannabis. The offender was addicted to cannabis, had no prior criminal record, and tendered a favourable reference from his employer. The offender was sentenced to imprisonment for 3 years and 6 months for the commercial quantity offence, and 2 years and 6 months for the marketable quantity offence. The offences were served concurrently, with a non-parole period of 1 year and 3 months. The offender's appeal against the severity of his sentence was dismissed. (e) R v Considine [2013] NSWCCA 97: The offender was sentenced in respect of the offence of aiding and abetting the attempted possession of a commercial quantity of a border-controlled drug, namely cocaine. The importation comprised 3.173 kilograms of pure cocaine. The offender's role was to accept the consignment, which was directed to her mother's address. The offender was to receive $2000 to be the consignee and to pick up the package. The offender was in her mid-twenties, had no prior criminal convictions, and had real prospects of rehabilitation. Her plea of guilty and assistance to authorities were regarded as indications of remorse and contrition, and her involvement was assessed as being towards the bottom of criminal activity in comparison with her co-offenders. The offender had experienced considerable childhood disadvantage. The offender was sentenced to imprisonment for 1 year and 8 months and was released on a recognizance release order after 6 months, after receiving a discount of approximately 33% for her assistance and plea of guilty. The Court of Appeal determined that the undiscounted starting point of the sentence should have been at least 3 years and 6 months, resulting in a term of 2 years and 4 months, with 14 months to be served prior to release on recognizance. Nevertheless, the Court exercised its discretion to decline to intervene. (f) R v Simon [2003] NSWCCA 147; 142 A Crim R 166 (Simon): The offender pleaded guilty to the offence of importing a commercial quantity of methylenedioxymethamphetamine, contrary to the now repealed s 233B(1)(b) of the Customs Act 1901. The importation consisted of 921.4 grams of the drug, which the offender attempted to convey into Australia on a commercial airline flight. The offender was 37 years of age, had no prior criminal history, and had been a successful businesswoman and lawyer prior to the commission of the offence. She claimed she had acted out of financial distress. The Court accepted that the offender was deeply remorseful for her conduct. The offender was initially sentenced to imprisonment for 6 years, with a non-parole period of 3 years and 6 months following a discount of 10% due to the offender's early plea of guilty. The offender's appeal was successful on the basis that the sentencing judge had erred in setting a discount of 10% for the plea of guilty. The term of imprisonment was reduced to 4 years and 6 months, with a non-parole period of 2 years and 6 months. (g) Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218 (Maxwell): The offender pleaded guilty to two counts of importing a commercial quantity [of] the border-controlled drug gamma-butyrolactone [GBL]. The first offence involved the offender placing an online order for two one-litre bottles of the substance from an overseas supplier, which were subsequently delivered to her home. The consignment which was the subject of the second offence was a bottle containing 1.155 litres of the substance; it was intercepted by the Australian Federal Police before it reached its destination. The offender had no prior criminal record and made a number of admissions to police. The offender was sentenced to a term of imprisonment of 3 years for the first offence, and 2 years and 6 months for the second offence. The total effective sentence was 4 years imprisonment with a non-parole period of 2 years. The prosecution appeal, brought in relation to the adequacy of the sentence and the assessment of the objective seriousness of the offences, was dismissed.

The appellant submitted that the facts of each of these cases are so different that they are of negligible comparative value to this Court.
As to Robertson, the respondent pointed to the similarity by way of demonstrated rehabilitation. The appellant noted Mr Robertson's 'desperate need for money' and the objectively less serious nature of the offending, Mr Robertson acting only as a 'mail box'.
As to RCW, the appellant emphasised the highly unusual factual circumstances, whereby RCW approached the police and informed them of the importation and participated in a controlled operation, and where outlaw motorcycle gang members were amongst the principals of the offending and RCW's claims of non-exculpatory duress were credible.
As to McMurray, the appellant challenged the respondent's categorising of Mr McMurray's offending as a greater example of criminality, noting that similarly to Mr McMurray, Mr Omari was connected to two principal organisers (Mr Yavuz and Mr Poulakis). The appellant noted Mr McMurray received a longer overall sentence of imprisonment for his involvement in a 'futile' commercial importation of cannabis than the respondent received for the Commonwealth offence and Mr McMurray's sentence of imprisonment for the marketable quantity of cannabis was comparable with the sentence imposed on the respondent for the Commonwealth offence.
As to Considine, the appellant submitted that the objective circumstances of the offending were plainly at a lower level than that of the respondent in this matter, as Ms Considine acted only as a mailbox for the consignment, in contrast to the level of involvement of the respondent in this matter as referred to by the sentencing judge (see [20] above). Ms Considine also assisted the authorities. Whilst Ms Considine demonstrated positive steps toward rehabilitation, the respondent submitted those steps were not as advanced as those steps he had displayed.
As to Simon, the appellant emphasised distinguishing factors such as the smaller quantity of the drug (921.4 grams), the offender's age with no prior criminal history, and the acceptance by the sentencing judge that she had acted out of financial distress and was to be paid $5000 for her role in the importation. The appeal succeeded on the basis that a greater discount for an early guilty plea should have been applied to the head sentence, but on resentencing the new subjective factor of a health problem was also taken into account on the basis that imprisonment imposed a particular hardship.
As to Maxwell, the appellant referred to the lesser multiple of the commercial quantity of drug involved, the fact that the offender had no prior criminal record and made admissions critical to the Crown's case and also relied on a line of authority to the effect that the importation of a commercial quantity of GBL was not 'truly commercial in nature' and could only have produced a relatively small return (at [28]-[30] in Maxwell).
Ultimately, as the above summaries and submissions indicate, none of the six cases involves closely aligned subjective factors and closely aligned objective circumstances of offending. That does not mean that reference to the cases is without value. Such reference reinforces the need for the subjective and objective factors to be considered closely and highlights factors of particular relevance to the instinctive sentencing process. They provide some guidance as to sentencing patterns and indicate how sentencing principles have been applied in other cases where similar issues have arisen. In our view, without purporting to calibrate with precision the hierarchy of the appropriate sentencing, the subjective circumstances of RCW favoured a more lenient sentence, particularly having regard to his cooperation with the police. The objective circumstances of the offending in both Robertson and McMurray were less serious, having regard to all of the circumstances. As to Considine, the objective circumstances favoured a lenient sentence.
As to the two examples said by the respondent to be most closely comparable - Simon and Maxwell - the sentences imposed were harsher than that imposed on the respondent. In Simon, the sentencing judge commenced with a 'normal' sentence of 10 years, reduced to 9 years for the early guilty plea, and adjusted to take into account the absence of remissions. The sentence imposed was 6 years with a non-parole period of 3 years and 6 months. The sentence was reduced on appeal to 4 years and 6 months, with a non-parole period of 2 years and 6 months. In both Simon and Maxwell the quantity of drugs was considerably smaller. Ms Simon acted out of financial desperation and was deeply remorseful, but had carefully planned the importation. Ms Maxwell stood to make only a modest amount of money. Although Ms Maxwell's rehabilitation was said to be conditional in nature, Ms Simon had revealed progress in rehabilitation.
Even acknowledging that some of the differences in the subjective factors favour the respondent in this case (namely his rehabilitation), other subjective factors weighed considerably more heavily in favour of Simon and Maxwell. The respondent's objective offending was no less serious than that of Simon and more serious than that of Maxwell, having regard to the quantity of the drugs involved and the nature of the drug (GBL, in the case of Maxwell).
The fact that the sentence imposed on the respondent in this case was more lenient than was imposed in those cases leaves open the appellant's argument that the respondent's sentence was so lenient as to reveal error. Similarly, Englisch and Siddiqi reveal that sentences markedly higher than the starting point in this case have been imposed in circumstances where the drug quantities involved were considerably smaller, but where the criminality of the conduct can properly be described as greater due to the activities forming part of the offending.

[72] The following general propositions emerge from the authorities: (a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27]; (b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the court: R v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25]; (c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26]; (d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v R; Leung v R at 607 608 [64]; R v Lee at [23]-[24]; (e) the statements by the High Court in Wong v R; Leung v R do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v R (No 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46]; (f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32]; (g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v R; Leung v R at 607-608 [64]; (h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114]; (i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6]; (j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20] [25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49]; (k) where offenders are not young (Mr Nguyen was 42 years' old and Ms Pham was 32 years' old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98]; (l) where an offender (such as Ms Pham) is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37]; (m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230; (n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s 16G Crimes Act 1914 (Cth): R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at 438 [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40]; (o) insofar as each Respondent asked the sentencing Judge to take into account on sentence offences under s 16BA Crimes Act 1914 (Cth), it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Attorney General's Application Under s 37 Crimes (Sentencing Procedure) Act 1991 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146: R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 at 550 [28]; Assafari v R [2007] NSWCCA 159 at [9].

The specific matters that bear upon the objective seriousness of the respondent's offending support the conclusion that, even accepting that his culpability was in a lesser category compared with that in cases such as Englisch and Siddiqi, and was less than that of his co-offenders, his offending was serious. The objective seriousness of his offending was greater than that considered in Simon and Maxwell.
The quantity of the drug involved was more than four times the threshold for a commercial quantity. Whilst the upper end of the commercial range is infinite, 2,223 grams of MDMA is not insignificant. We would not characterise the criminality of the offending as being at the lower end of the range, although it could properly be described as lower than mid-range.
Although the respondent did not know the precise amount of the drug involved, he was reckless as to the possibility that a commercial quantity might be involved, even if only for the period from 28 November 2017. He was updated as to certain milestones in the importation process. His involvement was not purely peripheral. He provided the ANU address. He took active steps to facilitate the importation, and was a willing and active participant. The motivation for offending was profit and the amount of expected profit was not an insignificant amount. It can be accepted that his culpability was less than that of Mr Poulakis and Mr Yavuz and that the sentence should reflect that position. However, general deterrence directs that a sentence for the importation of MDMA be sufficiently severe as to signal the seriousness of such offending for the community.
As for the subjective circumstances, there are favourable circumstances. Those circumstances called for a measure of leniency, having regard in particular to his demonstrated rehabilitation. That matter alone was not sufficient to significantly reduce the need for general deterrence. In coming to this view, we have had regard to the cases referred to by the respondent in support of his contention that general deterrence ought not to be afforded the weight that might otherwise have been appropriate. The respondent's other subjective circumstances, such as the effect on his family, were not so compelling as to weigh significantly in his favour.
In Thorn v The Queen, the sentencing occurred some seven years after the offending. The prosecution did not commence until some five years after admissions were made, and through no fault of the offender. The offending related to fraudulent BAS and GST statements provided to the Australian Taxation Office. The Court considered that in the unusual circumstances of his age (19 at the time of offending), the 'unacceptable and unexplained delay' and the fact that the offender had completely reformed during that period meant he was a 'less suitable candidate to be used as an example to deter others'.
In R v Mauger, the offender pleaded guilty to supplying 20 ecstasy tablets, being less than the commercial quantity threshold under the applicable state legislation. The sentencing judge did not record a conviction but imposed a two year good behaviour bond. There were strong subjective factors. The offender took the tablets to a music festival to use and give to friends and did not intend to profit from them. He was employed as a senior analyst with an Australian investment fund and found to be highly unlikely to reoffend. His career 'could be destroyed' by a conviction. Although such offending ordinarily attracted a custodial sentences, there were examples where comparable offenders also had no conviction recorded. The Crown appeal on the ground of manifest inadequacy was dismissed. The Court did not consider the case was one where general deterrence was particularly important having regard to the identity of the offender and emphasised in the circumstances the significance of the bond.
Neither case supports the contention that demonstrated rehabilitation means general deterrence would only play a limited role in a case such as this; where the objective seriousness of the offending is significantly greater; where it involves the importation of a commercial quantity of drugs for profit; and where the authorities stress the relevance and weight to be given to deterrence for such drug offences. Further, Mauger was not a case where rehabilitation was a central subjective factor.
There was a range of sentences available to the sentencing judge in properly applying the relevant principles. However, in our view the sentence imposed falls outside the sentencing range that was reasonably available. In particular, the sentence imposed did not meet the need for and the principles of general deterrence. The sentence needed to take into account a significant element of general deterrence, and, to a lesser extent, specific deterrence. It needed to be such as to clearly denounce the respondent's conduct, and demonstrate that persons who are involved in facilitating the importing of such drugs and are reckless as to whether or not the amount is a commercial quantity of drugs, can expect to receive a not insignificant custodial sentence.
This is not to suggest that the respondent should have been dealt with in the same way as the co-offenders or the offenders in cases such as Englisch and Siddiqi. However, we consider the appropriate sentence is 4 years and 6 months' imprisonment before a 15% discount having regard to the guilty plea, so reduced to a sentence of 3 years and 10 months' imprisonment. The appellant did not challenge the appropriateness of the 15% discount applied by the sentencing judge, and we accept it is appropriate. This period is more lenient than it might otherwise have been, but for the demonstrated rehabilitation on the part of the respondent and other subjective matters such as the impact of his imprisonment on family members. In coming to this independent assessment of sentence we have had regard to the objective and subjective factors set out above and the relevant requirements of s 16A(2)(m) of the Crimes Act 1914 (Cth). It is not necessary to repeat them.
Ground 1 of the appeal is upheld. Having regard to principles of totality, it is important to deal with grounds 2 and 3 before resentencing.

The sentencing judge concluded that the appropriate sentence was 1 year and 6 months imprisonment, reduced to 1 year and 3 months on account of the respondent's guilty plea. The maximum penalty for the trafficking offence is 10 years imprisonment. The offending involved the trafficking of 32.485 grams of cocaine.
The appellant referred on the appeal to four cases said to reflect comparative sentences or provide guidance on sentencing. The same authorities were also referred to before the sentencing judge: reasons at [226]. Her Honour said that she took those cases into account.
In Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168, the offender was sentenced for three separate trafficking offences, receiving sentences of 2 years' imprisonment for cocaine trafficking (137.96 grams); 6 months' imprisonment for MDMA trafficking (19.23 grams); 18 months' imprisonment for trafficking methamphetamine (57.28 grams); and 4 months' imprisonment for each of two offences of possession of a prohibited weapon. The total sentence imposed was 3 years' imprisonment with a non-parole period of 20 months. The offender pleaded not guilty to the drug offences. A severity appeal was dismissed. The offender was 37 years old at the time of sentence and had positive character references. He had longstanding methylamphetamine and cocaine addictions and had participated in rehabilitation programs. The offender had not re-offended in the three year period that expired before the sentencing date and had ceased association with an outlaw motorcycle gang.
In R v Hou [2017] ACTCA 14, the offender had set up a clandestine drug laboratory for the manufacture of MDMA. When apprehended, he was in the process of distilling an MDMA precursor. Police found 32.1 litres of nitromethane and 71.223 grams of MDMA. The offender was charged with manufacturing a controlled drug for selling, possessing a large commercial quantity of a controlled precursor (nitromethane) and trafficking in MDMA. The offender was a person of good character and was found to have been motivated by financial gain. The offender was sentenced to 1 year and 10 months' imprisonment for the manufacturing charge, 3 years' imprisonment for the possession of precursor and 3 months' imprisonment for the trafficking charge. The 3 months trafficking charge was made wholly concurrent with the other sentences. On a Crown appeal, the Court found that the sentences were lenient but were not manifestly inadequate.
In R v Harrington the offender travelled to the US and arranged for cocaine to be concealed in a shipment of auto wax. A quantity of 258.5 grams of cocaine was secreted in the shipment. This was the basis of a charge of attempting to possess a marketable quantity of cocaine. As to the trafficking offence, police searched the offender's home and car, where they located 24.91 grams of pure cocaine and drug supply paraphernalia. The trafficking charge was not brought under the Criminal Code 2002 (ACT) but under s 302.4 of the Criminal Code 1995 (Cth), but similarly carries a maximum penalty of 10 years imprisonment. The offender was 62 years old at the time of sentence, had solid family and community ties and a strong employment record. The offender had been diagnosed with cancer (although the non-parole period suggested this was not given significant mitigatory weight by the majority), was generally a person of good character and had good prospects of rehabilitation. The offender was sentenced by the sentencing judge to 4 years and 6 months' imprisonment for the attempted possession offence and 10 months' imprisonment for the trafficking offence. On a successful Crown appeal on the basis of manifest inadequacy and the imposition of wholly concurrent sentences, the offender was sentenced to an 8 year head sentence with a non-parole period of 4 years and 6 months. The Court imposed a sentence of 1 year and 6 months' imprisonment for the trafficking offence with 6 months of the sentence to be served concurrently with the 7 year sentence imposed for the attempt to possess offence.
In R v Watson [2018] ACTSC 172, the offender was sentenced for two counts of trafficking in a trafficable quantity of cannabis, three counts of being knowingly concerned in the trafficking of MDMA, methylamphetamine and THC, one count of trafficking in LSD, two counts of possessing amphetamine and cocaine and one count of possessing MDMA. The offender pleaded guilty and had a criminal history with previous drug offences. The sentencing judge summarised the sentences and it is not necessary to set them out again. It suffices to say that the number and range of offences, together with subjective matters such as the offenders' prior convictions and breaches of good behaviour orders, and the inclusion of an intensive correction order, result in this case being of little guidance. However, the offender received sentences of less than 12 months' imprisonment for each trafficking offence.
We also reject the appellants' submission that the sentencing judge did not address the list of schedule offences when sentencing for the Territory offence.
The principles as to considering additional offences were collected in R v Campbell [2010] ACTCA 20 at [46]-[50]. They were also referred to by the sentencing judge: reasons at [240]. Relevantly, the additional offences may lead to greater weight being given to specific deterrence and may have the result that a sentence may be increased or different in nature.
Her Honour stated that in determining the appropriate sentence she took into account the additional schedule offences, offences she accepted were 'objectively serious in their own right': at [154], [241]. Her Honour also referred to a prosecution submission that the range of drug offences indicated that the respondent's conduct was not an aberration or isolated, and that there remains a need for specific deterrence, and apparently endorsed that submission by concurring that specific deterrence remains relevant: reasons at [248]-[249].
The additional offending as reflected by the schedule offences did not undermine the fact that since that time the respondent had demonstrated positive rehabilitation, and it was appropriate for her Honour to take that into account in according less weight to specific deterrence than might otherwise have been required.
We accept that the nature of the offending requires that general deterrence be given significant weight and that the motivation of profit in this case can be inferred. We take into account the identified principles concerning sentencing of drug traffickers as summarised by this Court in Bui v The Queen at [41], including that the weight of the drug involved is important but not of chief importance, and that the motivation for the offence is highly relevant.
Having regard to the range of sentencing revealed by the cases referred to by the appellant, we are not satisfied that the sentence imposed was outside the available sentencing range. The number of trafficking offences in Nchouki suggest that the objective offending was more serious, supporting a longer sentence in that matter, and the absence of a guilty plea is also relevant. The objective seriousness of the trafficking offending in Harrington is similar, although not identical, to the seriousness of the respondent's objective offending, and the trafficking sentences are similar. There were no schedule offences considered in Harrington but there was also no discount for the offender's guilty pleas. Whilst the small sample size is acknowledged and we do not suggest Harrington provides some tariff, the sentence imposed by the Court of Appeal in Harrington is consistent with a conclusion that the sentence for the trafficking offence in the present case was not outside the range of available sentences.
The sentence of 1 year and 3 months for the trafficking offence viewed in the context of a maximum penalty of 10 years imprisonment is undoubtedly towards the lower end of the available range. We conclude, however, that the sentence imposed for the Territory offence was lenient, particularly acknowledging the seriousness of the schedule offences, but not manifestly inadequate.
We would dismiss this ground, but note that we have reviewed for the purpose of ground 2 the fixed sentence imposed before considering accumulation, concurrency and totality. These matters remain to be addressed in the context of ground 3 of the appeal and the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610. Consideration - ground 3
The appellant contends that the total sentence and the actual period to be served in custody fail to adequately reflect the nature and circumstances of the overall offending.
It follows from our finding with respect to ground 1 that the overall sentence is manifestly inadequate. This is compounded by the failure to accumulate any part of the term of imprisonment for the Commonwealth offence. The sentencing judge said that the different nature of the offending 'requires an element of cumulation' (reasons at [256]) but did not explain why it was appropriate to structure the sentencing so that there was only a 3 month period of accumulation, and no period of imprisonment solely referable to the Commonwealth offence. There was no explanation of why further aggregation was not considered appropriate. Such a degree of concurrency required justification.
The overall sentence imposed, which due to concurrency involved no additional period of imprisonment for a serious and separate Commonwealth offence, falls outside the sentencing range that was reasonably available. We do not ignore the impact of the recognizance on the respondent, but there was a need for a cumulative period of imprisonment that related to the Commonwealth offence in order to meet the need for general deterrence. The seriousness of the Commonwealth offending is not reflected in the term of imprisonment being made wholly concurrent with the term of imprisonment for the trafficking sentence. It follows that there was error in the application of the principle of totality, and appellate intervention on the ground of manifest inadequacy is warranted. We would uphold ground 3.

Notwithstanding the above finding of manifest inadequacy, it is still open to this Court to refuse the appeal on the basis of a residual discretion: Green v The Queen at [1]-[2]. The guidance afforded to sentencing judges by allowing a Crown appeal 'should not come at too high a cost in terms of justice to the individual': Green at [43]. The Crown, when asserting manifest inadequacy, is required to 'negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised': CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [34], citing Heydon JA in R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at [12]. The principles were also discussed in detail in R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [90]-[100].
There is fresh evidence to be considered. The respondent relied upon an affidavit of his younger brother, sworn on 20 October 2021. The import of this affidavit is to emphasise the suffering that an extended sentence will impose on their mother. It was said that she suffers from stress and anxiety which has extended to seizures, and that this is result of the respondent's incarceration. It was said that the family manage this stress by telling their mother that the respondent will be home soon and they have not disclosed this appeal to her.
Authorities dealing with hardship to family members in the context of sentencing were collected by Hidden AJ in R v Shortland [2018] NSWCCA 34 at [105]-[125]. This summary emphasises the threshold of exceptional hardship, although his Honour noted the requirement of s 16A(2)(p) of the Crimes Act 1914 (Cth) that the Court, when sentencing for federal offences, have regard to the probable effect that any sentence under consideration would have on any of the person's family or dependents. His Honour considered the observations of the plurality in Green (at [43]) do not purport to limit the circumstances which might engage the residual discretion: at [158]. In the context of the residual discretion, Basten JA accepted a submission that hardship to the family, whether exceptional or not, could be taken into account: at [24]-[25].
Even allowing for the hearsay nature of some of the brother's evidence and the absence of any medical or psychological evidence connecting her apparent symptoms with the respondent's imprisonment, we have no doubt that the respondent's mother is suffering and will continue to suffer as a result of the respondent's extended imprisonment. Whilst we empathise with the position of the respondent's family members, such suffering of itself is not a sufficient consideration in the circumstances of this case upon which to exercise the residual discretion.
We do not consider the hardship reaches the threshold of 'exceptional': but even without testing the hardship against such a high threshold, we do not consider it justifies the exercise of the residual discretion to dismiss the appeal. The evidence is general in nature, and it is apparent that despite the stress and anxiety, and the apparent broader impact of such stress and anxiety upon the mother's health, she has the support of other members of her family.
Each case must depend upon its own facts. Whilst we have had regard to the hardship described in the affidavit, the application of established principles requires a substantive intervention in this case, particularly when regard is paid to the serious nature of the offending, the need for general deterrence and the concurrency of the current sentences. The resentencing exercise cannot be seen to be other than substantial, both as to the principles to be applied and the degree of intervention that is warranted.
We have also considered the question of parity. The re-sentencing does not result in the creation of unjustifiable disparity between the respondent and the co-offenders: see [82]-[84] above.
No conduct on the part of the appellant has contributed to the error of the sentencing judge.
The appellant has met its obligation of negating any reason why the residual discretion not to interfere with the sentence imposed should be exercised.

The Queen v Omari [2022] ACTCA 4

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