Tu v R

The "worst case" finding 19The massive quantities of prohibited drugs involved in the appellant's two offences, Count 1 and Count 2, not only permitted, but indeed required, an assessment that the offending in relation to Counts 1 and 2, was within the high range for such offences. That alone, however, was an insufficient basis to characterise it as within a worst case category. In a "possession" charge, it has been emphasised that the act of possession can be attended by a wide range of moral culpability: El-Ghourani v Regina [2009] NSWCCA 140; (2009) 195 A Crim R 208 at [33] per Spigelman CJ. In that case, the Chief Justice stated at [33]:- "... The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of possession itself." 20The evidence led at trial and adduced at the sentencing hearing did not enable the nature and degree of the appellant's involvement in the enterprise by which the drugs were obtained to be ascertained and assessed. Equally, for reasons set out later in this judgment, the evidence did not permit a finding that the criminality of the offender was greater than that of his co-offender. 21In the remarks on sentence, his Honour stated (at AB 376):- "The exact role that each of them had in the criminal organisation that saw such vast quantities of drugs sent to Australia is something which I cannot determine ..." 22Later, his Honour observed (AB 378):- "... I have already said that it is difficult to be certain exactly what part each of them had and where they fitted into the scheme of things." 23The sentencing judge stated (AB 378) that he considered that the appellant had a more important role than his co-offender. In that respect, he identified four matters in support of that conclusion. They were:- (1) That the appellant went to China many more times than Ms Zhang. (2) That "... he was not an Australia citizen and came here a number of times, obviously, I would have thought, for the purpose of organising either drug importing or drug distribution" . (3) He was the person in possession of 197 kg of drugs in his premises, whereas, his co-offender had drugs in possession of six or seven kilograms. I note that these matters were relevant to Count 2 but not directly to Count 1. (4) He was the person who had the list of numbers of all the boxes in respect of the large shipment the day he and Zhang were arrested. In this regard, his Honour observed (AB 378):- "... It seems inescapable to me that the exporters from China provided him with information as to the boxes in which the drugs were and he used that information when he was working with Ms Zhang on the day of their arrest to get the drugs from the relevant boxes. He must be regarded then as a more serious offender." 24Precisely how, assuming it be the fact, that such information was supplied to the appellant by the exporters itself necessarily carried the conclusion that his offending was more serious than that of Zhang was not explained. 25The sentencing judge then proceeded to find that Counts 1 and 2 were offences "of the worst type" . In so saying, his Honour referred to the fact that there could be cases that are even worse than Counts 1 and 2. 26Although it is, of course, relevant to the sentencing process to assess the level at which an offender operated in a criminal organisation in order to determine culpability, the evidence before the sentencing judge did not enable a finding to be made as to the appellant's level or his place within the organisation or the nature of his association with members of its hierarchy. Additionally, the evidence did not disclose the nature or degree of his particular involvement in the arrangements for the importations. I have referred to the sentencing judge's own observations to that effect above. The appellant's role or level of participation in the actual importing arrangements and in the arrangements leading to possession of the drugs were both relevant in determining whether or not his offending in respect of Count 1 could be characterised as "a worst case" . 27In the joint judgment of the High Court in Olbrich (supra), it was observed that the identification of the precise nature of an offender's involvement in an active importation of prohibited imports was not an essential part of the sentencing process for offences of that kind (at 277). The Court stated that little may be known in many, even most cases, as to the course of events prior to or subsequent to the actual importation and a sentencing judge is not obliged to inquire about such events (at 278). 28However, it does not follow that in relation to a "possession" offence that such matters are not relevant or, indeed pertinent, to the question as to whether such an offence is within the worst case category for such offences. They clearly were required, in the context of the present case, to be considered for that purpose. 29Where a number of persons are charged with offences associated with the importation of drugs and are convicted (or enter pleas of guilty), it will be particularly necessary for the sentencing judge to identify any feature that should lead to the imposition of different sentences on one offender from that imposed on another: Olbrich (supra) at 279. Different kinds of participation will often result in the determination of different levels of culpability or criminality. 30Where, however, as in the present case, it is apparent that the attempted possession of the drugs in question was part of and a result of an international criminal business venture, organised hierarchically, information that shows where the offender fitted into organisation, in particular into its hierarchy, is relevant and, indeed, important information. It may identify the true nature of the offender's conduct: Olbrich (supra) at 279. 31In the present case, senior counsel for the Crown in written submissions placed before the sentencing judge observed that both offenders (the appellant and Zhang) were involved in two separate shipments of huge quantities of drugs. The submission was that each of the offences charged attracted a "substantial sentence" (AB 337). It was also submitted that there should be some degree of accumulation in the final sentence. 32The appellant's role in organising the shipments and supervising their arrival and disposal was an aspect of the evidence at trial. However, the evidence on those aspects of his role was limited. 33The prosecution did not submit that the sentencing judge should find the appellant's offending in respect of Counts 1 and 2 constituted a worst category of offence. The apparent decision not to do so would appear to reflect the limitations on the evidence to which senior counsel for the Crown referred in the Crown's written submissions (AB 328):- "The huge quantities of narcotics involved in the offences indicates that access to significant resources to pay for the drugs, pack them, ship them and dispose of them, was necessary. It is unlikely that the two prisoners acted alone in possessing such large quantities of drugs. However, it is not possible to categorise their roles in the venture." 34In the course of his oral submission, senior counsel for the Crown indicated that the two offences of which the appellant was convicted could be part of "one big criminal transaction" (AB 393). 35It was at this point that the sentencing judge himself first raised the issue of the maximum prescribed penalty as one that warranted consideration for the sentence to be imposed on the appellant in respect of Count 1. 36Senior counsel for the prosecution, whilst emphasising the vast quantities of the drugs involved in the offences, also properly referred to the limitations on the evidence as to the appellant's role and his level of participation. The Crown submission was that the sentences to be imposed on the appellant should be in the range of the maximum penalty but "a bit lower" than the maximum: AB 294. 37On the issue of the appellant's role, the observation was again made by the Crown that it would seem unlikely that the appellant and Zhang had the resources alone to organise such "a massive importation" (AB 392). 38The sentencing judge repeated in the course of the Crown submissions his view that the maximum penalty may be appropriate for the sentence in respect of Count 1. It is clear that his Honour, in making that observation, was basing it on the quantities of drugs without regard to the issue as to the appellant's role or level of participation as a relevant determinant (AB 295):- "HIS HONOUR: There's evidence that each of them went to Southern China at some point. So each of them were involved in some way in helping to make arrangements for all this. So we start with 25 years. I raise it now - Mr King I think it's only fair that he should know what's in my mind because the quantities are so great that I just look at it and think, well if it's a worst type of offence, why should a penalty of less than the maximum, with an appropriate non-parole period, be applied ..." 39The sentencing judge, both in these observations and generally in the remarks on sentence, based his finding as to "worst case" without regard to the limitations that existed as to the evidence on the level of the appellant's participation in the criminal enterprise or his role. 40The imposition of the maximum penalty for any offence is, in law, a sentencing option reserved for cases which can be characterised as falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452, Regina v Holder & Johnstone (1983) 3 NSWLR 245. 41The High Court in Regina v Veen (No 2) (1988) 164 CLR 465 at 478 observed:- "That does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness." 42In the sentencing spectrum, the statutory maximum is reserved generally for the worst category of cases for which it is prescribed: Ibbs (supra) at 451-451. The least serious or trivial are at the other end of the spectrum. 43In making the assessment as to where a particular offence lies in the spectrum, the Court will, of course, be required to identify, consider and evaluate the relevant aggravating features of the offence and any objective features which would mitigate the seriousness of the offence. Only then will it be possible for a proper evaluation to be made as to whether or not the case does fall within the category of the worst type of case. 44The culpability in relation to a particular offence will invariably depend upon a number of factors. In a case such as the present, issues such as the nature, the purity and the amount of the drugs that are the subject of the charge are to be considered along with the nature and level of the offender's participation in activities in any criminal organisation or enterprise that is responsible for the prohibited drugs imported into this country. 45In this case, the sentencing judge was required to apply the relevant Commonwealth sentencing provisions and in this respect the Court was required in sentencing the appellant and his co-offender to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth), in particular, the matters set out in s.16A of that Act. 46When passing sentence, s.16A(1) provides:- "16A(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence." 47Section 16A(2) provides:- "In addition to any other matters, the Court must take into account such of the following matters as are relevant and known to the Court:- (a) the nature and circumstances of the offence; ..." 48In Olbrich (supra), the High Court (Gleeson CJ, Gaudron, Haine and Callinan JJ) observed, in reference to this latter provision:- "... The reference to what is 'known to the Court' is very important and mirrors what would be the position in the absence of statutory provision." 49As the High Court observed in Olbrich (supra), when dealing with a criminal enterprise, offenders will often occupy particular levels or undertake different participating roles in a single enterprise than others involved in it (at 279). Thus, there it was observed (at 279):- "There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case, a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender's criminality ..." 50The quantities of drugs involved in the importation on 13 May 2003 was, as earlier indicated, so substantial as to place the "attempt possession" offence in Count 1 in the high end of the range for such offences. 51Section 233B of the Customs Act applies to narcotic goods of various natures and its provisions, as at the relevant time, distinguished between trafficable quantities for certain narcotic goods and commercial quantities for others, the penalties varying according to the seriousness of the offence having regard to the provisions of that section. 52As has been noted, the commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself: Regina v Kevenaar [2004] NSWCCA 210 per Hulme J at [72] (with whom Simpson and Howie JJ agreed). Further, it has been held that:- "In determining the proper penalty ... the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug." (Regina v Peel (1971) 1 NSWLR 247 and 262) 53By virtue of s.237 of the Act, an attempt to commit an offence is punishable as if the act had been committed: Kevenaar (supra) at [74]. 54In Regina v Schofield [2003] NSWCCA 3 at [139], Carruthers AJ, with the concurrence of Heydon JA (as his Honour then was), observed:- "It is important to appreciate that where an attempt to commit a substantive offence is involved, it is relevant to consider, in evaluating the seriousness of the offence, inter alia, the offence was not completed; the chances of its success; the seriousness of the attempt; whether the attempt was sophisticated or nave; the competence of the attempt and all the other surrounding circumstances: see Regina v Taouk (1992) 65 A Crim R 387 at 390." 55The determination of an offence as being within a worst category of offence involves an evaluative judgment having regard to the nature of the offence and, taking all relevant matters into account, its objective criminality. In Regina v Twala (CCA, unreported 4 November 1994), a case involving a charge of murder, Badgery-Parker J stated that, in order to characterise any case as being in the worst case category (and so attracting the maximum prescribed penalty), it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime. Such observations are of particular relevance in cases involving crimes of violence. 56In Regina v Skaf [2005] NSWCCA 297 - another case involving violence - an offence under s.61J of the Crimes Act 1900 (sexual intercourse without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse), this Court dealt with a submission made on behalf of the offender that, for an offence to be regarded as belonging to the worst class of case, the Court would require that there be some additional element or elements such as torture or the infliction of bodily harm or the performance of degrading acts (at [53]). The Court there stated at [54]:- "It would be both undesirable and inappropriate to seek to define the requirements of the category of the worst class of case. Plainly, it is not necessary for a case to so qualify that the conclusion be reached that it would be impossible to conceive of a worse case. However, more is required than that the case be regarded as a very serious one." 57In undertaking an evaluative judgment of the offence in Count 1, as earlier stated, plainly the type of prohibited drug, its dangerous qualities, the purity and the quantities of drug involved are all relevant in determining the issue as to whether the offence represented a worst case category offence. However, the necessary inquiry into the accused's level of criminality in respect of an offence under s.233(1)(c), as I have earlier indicated, did not stop there. That is particularly so in relation to a question as to whether the offence fell within the worst category for such an offence. 58The High Court has emphasised that it is essential to keep in mind the particular offences with which the appellant was charged, firstly, under s.233B(1)(c), namely, an attempt on 14 May 2003 to possess a trafficable quantity of crystal methylamphetamine which had been imported into Australia in contravention of the Customs Act and, secondly, an offence of possession under s.233B(1)(ca) of that Act. 59The fact that the evidence did not permit the appellant's role to be established, in my opinion, meant that the evidentiary basis for classifying the offences as "worst" cases did not exist without evidence. In that respect, the full extent of the appellant's moral culpability attaching to the offences could not be assessed. 60Accordingly, on analysis and for the reasons set out above, there was, in my opinion, no sufficient evidentiary basis for a finding of the highest level of criminality reflected in the sentences imposing the maximum penalties on the appellant. Comparative culpability 61In the written submissions going to relative criminality, the Crown noted (AB 329):- "Whilst their involvement differed, it is not possible on the evidence of their known actions to distinguish the comparative culpability of the two accused. The presence of Tu in China prior to both shipments is indicative of a role in organising the shipments and then travelling to Australia to supervise the arrival and disposal ..." 62The finding made by the sentencing judge that the appellant's criminality was higher than Zhang in relation to Count 1 was, in my respectful opinion, made without evidence that would permit a proper comparative assessment of the criminality of the appellant, viz-a-viz, Zhang. It would appear that it was precisely for this reason that senior counsel for the Crown stated in his written submissions (AB 329):- "In the end result, on the evidence available, the objective circumstances of the involvement of the accused reflects indistinguishable levels of serious culpability." 63The sentencing judge concluded:- "In the case of Mrs Zhang, her culpability I would assess as being less, although not markedly so and I propose to impose a sentence for her for the first count of 20 years. In relation to the second count, I propose to impose a sentence of 16 years." 64Accordingly, the differential between the sentence imposed on the appellant on the basis of "a worst case" and that imposed in respect of the co-offender, Zhang, for the equivalent offence was a period of 5 years. Such a differential, of course, cannot be regarded as either a slight or an insignificant one. A period of 5 years in terms of the total sentence is one that significantly impacts upon the interests of an offender. 65The basis for the finding of a lower level of culpability of Mrs Zhang on Count 1 is not clear from the remarks on sentence. It is possible that the references to the appellant's role in making arrangements whilst in China for the shipping of the drugs that arrived in Australia on 13 May 2003 may have been a factor in this respect. 66It is necessary to analyse and refer in a little detail to some of the evidence which makes plain that some activities and involvement of the appellant's co-offender, Zhang, were at a similar level to his own. This entails reference to both activities undertaken by the appellant and Zhang both before the two importations and after the drugs arrived in Sydney. 67The following is a summary of matters concerning the making of arrangements in China in March 2003 and May 2003 and as well the activities involved in receiving and processing the relevant shipment of prohibited drugs that arrived in Australia on 13 May 2003. (1) Zhang, who was aged 47 at the date of sentence, initially took steps to establish an importing business. It would seem that she did this by inveigling her way into an existing legitimate business that was then conducted by a Mr Yee. The latter business was involved in the importation of good stuffs of various kinds. Zhang undertook her first importing activity in September 2002. This involved her using an account belonging to the business conducted by Mr Yee without his authority. (2) Thereafter, Zhang made arrangements for three further shipments of food from China to Australia using the importing business which she established. The particular shipments relevant to the offences of the appellant and the co-offender were those that arrived in Australia on 30 March 2003 and on 13 May 2003. (3) The appellant went to Guang Zhou in China twice. It was from that area that the two shipments in March and May 2003 containing the drugs were sourced. (4) Zhang travelled to China between 23 January and 9 February 2003 as did the appellant. That trip was followed by the shipment made on 30 March 2003 which contained prohibited drugs. (5) The shipment that arrived on 13 May 2003 was addressed to a company which was associated with Zhang, namely, Eastern Trade and Import. Relevant shipping documentation concerning the shipment revealed Zhang's phone number. Additionally, documents of the company, Tramways, concerning the shipment on 30 March 2003, were found in Zhang's apartment. (6) Zhang's connection with the drugs imported into Australia on 13 May 2003 can be inferred from evidence concerning the shipping arrangements as well as events following the arrival of the drugs in this country. The combined evidence of Mr Yee as to three shipments was that Zhang organised the importation of food products and she was involved in all four shipments. The first two were brought in by her and sold to Mr Yee in 2002. Following her trip to China in January/February 2003 with the appellant, the first shipment of drugs, as noted above, took place. (7) Zhang provided the appellant with a mobile phone which he thereafter used to make contact with her. In all, Zhang owned three mobile phones. There was regular contact by phone between the appellant and her in the relevant periods. (8) On 17 March 2003, Zhang secured a lease of the storage unit used for receiving the prohibited drugs. (9) Police located a number of plastic bags which were full of methylamphetamine in Zhang's unit in Wattle Street, Ultimo. (10) During surveillance in Jones Street, Ultimo on 13 May 2003, Zhang was seen outside in the presence of and directing three identified males. The appellant was not present on 13 May 2003. The truck carrying a container in which the drugs were secreted proceeded to an address in Jones Street which contained signage referring to Zhang's company, Eastern Trade Imports. The men proceeded to unload boxes from the container and Zhang was seen attending to some damaged boxes and was seen walking towards the storage area. (11) On 14 May 2003, the appellant was seen in the Ultimo area. He met Zhang and she and the appellant worked for some hours on various boxes that had been delivered the previous day in the storage unit. (12) When arrested, Zhang was found in possession of packets containing prohibited drugs. (13) Police also found a set of scales in Zhang's possession which had traces of methylamphetamine on them. (14) Police located a quantity of drugs in Zhang's premises that were directly linked to the importation of the container that was delivered on 13 May 2003 and also to an earlier importation. (15) There was evidence that certain drugs seized at Zhang's premises were of a lesser purity than other drugs found. This was consistent with the drugs having been cut with other substances in preparation for distribution. 68The offence constituting Count 1, of course, was not directed to activities involved in the importation process as such. The "possession" for which both Counts 1 and 2 related was possession of imported prohibited drugs at the stage immediately preceding or leading to their intended distribution in Australia. 69In relation to the appellant and his co-offender, Zhang, I have earlier referred to the evidence of them travelling to China (Guang Zhou) in February 2003, the appellant's subsequent trip there in May 2003 and the links established in evidence between Zhang and both importations made on 30 March 2003 and 13 May 2003. 70The nature and the circumstances of the receipt and "possession" of the prohibited drugs by the appellant and Zhang following their delivery to this country were, of course, also relevant to the assessment of criminality in respect of both counts against each of the offenders. The attempt possession and actual possession of the prohibited drugs by the appellant and the co-offender occurred, as I have stated, as part of what was clearly a highly planned operation. The appellant and his co-offender were clearly significant participants in attempting and, in relation to Count 2, actually receiving into their custody and control the imported drugs prior to any distribution of the drugs in this country taking place. 71It is necessary to separately address the basis upon which any activities of the appellant and Zhang in co-ordinating arrangements in China for the importations could be evidence that was relevant to a "possession" charge without infringing the De Simoni principle. In evaluating the criminality of both the appellant and his co-offender, the evidence as to their respective participation in the making of the arrangements for the importations on 30 March 2003 and 13 May 2003 was, in my opinion, evidence that was relevant to the charges under s.233B(1)(c) and s.233B(1)(ca) against both of them. The evidence to which I have referred constitutes context evidence concerning their attempted and actual possession of the drugs. Evidence concerning such matters may be considered and may be taken into account in accordance with the relevant principles expounded by Spigelman CJ in El-Ghourani (supra) at [19] to [33] without offending the principle in De Simoni (supra). 72I have earlier set out the observations of the Chief Justice in El-Ghourani (supra). Reference was there made to the authorities that established that the act of possession can be attended by a wide range of moral culpability. 73Hunt J (with whom Gleeson CJ and Lee CJ at CL agreed) in Regina v Ferrer-Esis (1991) 55 A Crim R 231 at 238 to 238 observed:- "It has been submitted by the Crown that the judge was in error in refusing to sentence the respondent for the offence of possession upon the basis that he was also guilty of importing the drugs. That submission had been put to the judge upon the basis that the offence was therefore rendered more serious. The respondent was not, however, ultimately arraigned upon such a charge, and he certainly did not plead guilty to a charge of importing the drugs. It would have been quite wrong for the judge to have taken such a matter into account: Regina v De Simoni (1991) 147 CLR 383 at 389; 5 A Crim R 329 at 333. That does not mean that a particular circumstance which was relevant to both offences could not be taken into account by the judge on the possession offence to which the respondent pleaded guilty merely because it could also have been taken into account on an importation offence of which he had not been convicted. It means only that such a matter cannot be taken into account as an aggravating circumstance in relation to the possession offence where the matter would have warranted a conviction for a more serious offence." 74Accordingly, in the present case, the fact of communications between both the appellant and Zhang and the exporters of the drugs prior to importation, whilst not an aggravating factor in relation to possession offences, may nonetheless be taken into account in elucidating the nature of the applicant's possession offence for the purposes of sentencing: Regina v Lawless (CCA, unreported 24 June 1994 at 4 to 5). In other words, the possession if obtained in the context of a criminal narcotic venture may be different from possession obtained in unplanned or unsophisticated circumstances. In this way, the overall context becomes pertinent to an assessment of the culpability of an accused for an offence of possession by seeing it in its context. Spigelman CJ in El-Ghourani (supra) observed that insofar as Lawless (supra), Ferrer-Esis (supra) and Regina v Laurentiu (1992) 63 A Crim R 402 accept that the circumstances relating to the process of importation may also be relevant to a charge of possession, there is no inconsistency with Olbrich (supra) at [30]. 75The Chief Justice in El-Ghourani (supra) referred to dicta of Wood J (as his Honour then was) and Sharpe J in Laurentiu (supra) at 415 to 416 in which, in relation to a possession charge, it was stated that for the sentencing judge to have sentenced on the bare fact of possession (in that case of cocaine) would have involved serious error:- "... Without the context of the possession, no assessment could have been made as to where the offences fell in terms of objective seriousness, within the range of cases involving possession of not less than the trafficable quantity of cocaine." 76Similarly, in Regina v Guiu (2002) 129 A Crim R 387, Hodgson JA noted that it would have been in that case an error for the sentencing judge in terms of the De Simoni principle to have regard to criminality involved in crimes with which the applicant had not been charged. However, Hodgson JA also observed:- "... Accordingly, when the sentencing judge found that the applicant's 'role in this importation' was 'of considerably more importance than that of Ferrer', that should not be understood as suggesting that the judge was proceeding on the basis that the applicant could be sentenced for her role in the importation: rather, 'importation' there must, in the light of the judge's reference to De Simoni be understood as referring to the overall enterprise which included both importation and initial disposal within Australia." 77In assessing the matter of the comparative culpability of the appellant and Zhang, there was evidence that both were in communication with the exporters in China, the appellant having travelled there twice and Zhang on one occasion. Zhang and the appellant were, on the evidence, both involved in the making of arrangements preceding the importations and with events after the importations. Such evidence is relevant to their respective moral culpabilities in relation to their possession and attempted possession of the prohibited drugs and to their comparative culpability. 78On the whole of the evidence and taking into account the activities of the appellant and his co-offender and the relevant contextual circumstances to which I have referred, there was, in my opinion, no evidentiary basis for the finding made by the sentencing judge that the appellant's offending was at a higher level than that of his co-offender, Zhang. It was at least open for a finding to be made that the evidence concerning the circumstances of the respective involvement of the appellant and Zhang reflected comparable levels of culpability. 79I have, however, concluded that the assessment on that issue should be that made by McCallum J. 80McCALLUM J : Mr Wei-Liang Tu seeks leave to appeal against the sentences imposed upon him after he was found guilty by a jury in the District Court of two offences under s 233B of the Customs Act 1901 (Cth). The first was an offence of attempting to obtain possession of prohibited imports, being a trafficable quantity of the drug known as "Ice" (crystal methylamphetamine). That offence related to the contents of a shipping container imported from China. The container was intercepted by Customs officers, whereupon the drugs were seized and replaced with a harmless substance. The shipment was then delivered to the consignment address and later handled by the applicant, hence the Crown's reliance on a charge of attempt. 81The second offence was an offence of possession of prohibited imports relating to a further quantity of the same drug found by police in the applicant's apartment after his arrest. The Crown case was that the drugs found in the apartment were reasonably suspected of having been imported in an earlier shipment. Evidently, the jury was satisfied of the applicant's guilt on that basis. 82The first offence was committed with a co-offender, Ms Anna Zhang. She was tried separately and found guilty by a jury of that offence, together with an offence of possession of prohibited imports relating to a separate quantity of the drug found in her possession (also suspected to have come from the earlier shipment). 83The applicant's trial and Ms Zhang's trial were both presided over by the same judge. The Judge heard the proceedings on sentence in respect of the applicant on 25 June 2004. Ms Zhang was not before the Court that day. Her case on sentence was evidently heard later (the record of those proceedings was not put before this Court in the present appeal). On 3 December 2004 the Judge passed sentence on both offenders, publishing combined reasons for the sentences imposed. 84On each count against the applicant, the Judge imposed a term of imprisonment of 25 years, the maximum penalty prescribed for the offences. The sentences were fixed to be served concurrently. The Judge fixed a non-parole period for those sentences of 16 years and 7.5 months, approximately two-thirds of the head sentence (66.5 per cent). 85For the offences committed by Ms Zhang, the Judge imposed a sentence of imprisonment on the first count of 20 years. On the second count, his Honour imposed a sentence of imprisonment of 16 years, also fixed to be served concurrently. His Honour fixed a non-parole period for Ms Zhang of 13 years and 4 months (two thirds of the longer sentence). 86Ms Zhang appealed against her convictions and sought leave to appeal against the sentences imposed. Those appeals were dismissed: see R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at [186] per Simpson J; Buddin J agreeing at [187]. Basten JA dissented as to the conviction appeal (at [72]) and did not address the application for leave to appeal against sentence. 87In determining Ms Zhang's application for leave to appeal against sentence, Simpson J recorded that Ms Zhang was sentenced on the same day "and in the same proceedings" as the applicant: at [171]. So far as the material put before the Court in the present appeal discloses, however, both the trials and the sentence proceedings were conducted separately. As already noted, however, the sentencing judge gave combined remarks for the sentences passed on both offenders. 88Notice of the application for leave to appeal was not given within the time prescribed under regulation 3B of the Criminal Appeal Rules , but the Crown did not oppose the application on that basis. I am satisfied in light of the seriousness of the offences and the nature of the penalties imposed that it is appropriate to extend the time for giving notice of the application for leave to appeal. The extension should be granted to 17 June 2010, by which date it is clear the notice had been filed. Facts 89In light of the fact that the sentencing Judge gave combined remarks on sentence after presiding over separate trials and conducting separate sentence proceedings, it is not easy to identify the discrete facts on the strength of which the applicant was sentenced from the remarks on sentence alone. The task is complicated by the applicant's contention in the present appeal that some of the remarks on sentence apparently concerning him were derived from evidence that had not been admitted against him. What follows is a summary of what appears to be uncontroversial, drawn partly from the written submissions filed on behalf of the Crown and partly from the evidence given at the applicant's trial. 90The applicant is a Canadian citizen of Chinese background. He said that he first met Ms Zhang at a casino when he came to Australia in August 2002 (AB140.10). The Judge, in his remarks on sentence, appears to have proceeded on the basis that the applicant and Ms Zhang first met at a later point in time, in March 2003. That assumption is drawn from evidence apparently given only in the trial against Ms Zhang, but it is an assumption that is favourable to the applicant, for reasons explained below. 91The applicant said that his reason for coming to Australia in August 2002 was to travel. When he met Ms Zhang, he told her that he was in the fashion business and she said that she was also. She asked whether there would be any business prospect for them together and he indicated that there might. He said they spent some time together and became friends. He stayed in Australia for 25 days on that trip. 92The applicant returned to Australia in March of 2003. He said the reason for the second trip was to do some sightseeing and to go to the casino. It was his evidence that he was on a package deal with Star City Casino which included one month's accommodation during which he was not required to pay for the room or any meals. 93According to the Crown summary of the facts, Ms Zhang was not in the fashion business but was the proprietor of a business that imported foodstuffs from China. In 2002, Ms Zhang imported two shipments into Australia. Evidence as to the circumstances surrounding those shipments was given in the applicant's trial by a businessman, Mr John Yee. 94Mr Yee said that he had met Ms Zhang in Chinatown and that she subsequently rang him wanting to do business with him. During that telephone call, she told him that she had a consignment of "rock sugars" coming into the country very soon and asked whether he could take the consignment. Mr Yee told her to come and see him. When she went to see him, he was surprised to see that the consignment was in the name of his company, although he had not ordered the goods in question. He nonetheless took the consignment and sold what he could. He paid the consignor in China for the whole consignment, but only after obtaining payment from Ms Zhang for what was left unsold. 95So far as can be ascertained from the material before this court, that consignment appears to have left China in late July 2002 and arrived in about early August (see Mr Yee's evidence at AB93.40; the exhibits at the trial were not included in the Application Book). 96Later in 2002 Mr Yee took another shipment from Ms Zhang, of "rock sugar and rice stick". That consignment was in the name of a company, Eastern Trade and Import Pty Limited, which Mr Yee understood had been set up by Ms Zhang. 97In 2003, two further shipments were brought in, arriving on 30 March and 2 May 2003. Both shipments were from the Guangzhou region in China. The last shipment of some 400 cartons was intercepted by Customs officers who identified 21 suspicious cartons. Those cartons were set aside for further examination. They were found to contain packets of noodles in which one officer noted a "weight anomaly" (AB32). Further examination disclosed that the noodle packets contained crystal methylamphetamine packed in between wafers of noodles. The drugs were seized and replaced with an inert substance. The 21 cartons were then secretly marked and delivered along with the balance of the shipment to the consignment address under surveillance by the Australian Federal Police. 98Watched by police, Ms Zhang and the applicant spent a number of hours sorting cartons in the warehouse to which the shipment had been delivered. Ms Zhang had the key to that warehouse. Both offenders were arrested later that day. 99It was the applicant's case at trial that he assisted Ms Zhang in the warehouse at her request but that he did not know that the boxes contained drugs. He said that Ms Zhang had told him that she had a container of miscellaneous goods and that the workers did not do a very good job in handling the goods, so she asked him to help her to arrange them. 100At the time of his arrest, the applicant had in his possession a piece of paper with a series of numbers written on it, most of them circled. He gave evidence at his trial that Ms Zhang gave him that document and asked him to find the boxes identified by the numbers and to set those boxes aside. He said that, after picking out each box, he circled the relevant number on the page (AB150). In cross-examination, he acknowledged that it was he who wrote the numbers. He said that Ms Zhang read out the numbers to him and that he wrote them down and then went looking for the boxes identified (AB191). 101Police recovered 20 of the 21 marked cartons. At the applicant's apartment, police found 13 sealed boxes labelled "brown sugar in pieces" containing smaller boxes also labelled in that way. Some of the boxes contained brown sugar. Others contained crystal methylamphetamine. As already noted, the Crown case was put on the basis that the drugs found in the apartment were reasonably suspected to have been imported in the earlier shipment in March 2003. The Judge appears to have accepted for the purpose of sentencing that Ms Zhang brought that shipment in before she had met the applicant (AB373), whereas in fact it was his evidence that they first met in August 2002. 102The quantity of the drugs seized from the May shipment was approximately 212 kilograms (163.149 kilograms pure). That was the basis of count 1 against both offenders. The quantity of the drugs seized in the applicant's apartment was approximately 107 kilograms (81.689 kilograms pure). Those drugs formed the basis of count 2 against the applicant. The amount of the drug found in Ms Zhang's apartment (count 2 against her) was approximately 6 kilograms (3.396 kilograms pure). 103The Crown tendered evidence at the sentence proceedings that the street value of the drugs from the May shipment was in the order of $106 million, while the wholesale value was in the order of $25 million to $40 million. The street value of the drugs found in the applicant's apartment was in the order of $53 million, the wholesale value being between approximately $12 million and $20 million. The Crown's evidence also addressed the physical effects of methylamphetamine on its users. 104The trafficable quantity of methylamphetamine is two grams. At the time the applicant and Ms Zhang were charged and sentenced, the relevant schedule to the Customs Act did not specify a commercial quantity applicable to that drug. Subjective circumstances 105Little was said at the sentence proceedings as to the applicant's subjective circumstances. He had one prior conviction for a dishonesty offence which the Judge regarded as being of relatively little importance. The Crown did not cavil with an indication from his Honour that the applicant should be regarded as a first offender. 106The only other evidence as to the applicant's background was in the form of a chronology tendered by his counsel which recited an unremarkable family history and an apparent steady record of gainful employment. The applicant has been married but had separated before the offences were committed. He has two sons who live with his ex-wife in Canada. 107The Crown's written submissions on sentence noted that, as a resident of Canada, the applicant would serve any sentence away from the support of family and friends but submitted that was a factor to be given only minimum weight, citing R v Ferrer-Esis (1991) 55 A Crim R 231 at 239.7 per Hunt J, Gleeson CJ and Lee CJ at CL agreeing. Remarks on sentence 108The Judge noted, as had been acknowledged by the Crown at the sentence hearing, that it was difficult to distinguish the comparative culpability of the two offenders. His Honour nonetheless concluded that the applicant must be regarded as a more serious offender, for reasons considered below. 109As to the decision to impose the maximum penalty, the Judge had of course to be satisfied that the offence was in the worst category. On that issue, his Honour said: In my opinion the offence, the first count on the indictment, for Mr Tu of attempting to have in his possession 212 kilograms of drugs is an offence of the worst type. Of course, in saying that, I am not saying that somebody might not come along with a set of facts that shows an offence which is even worse, but as far as importing of trafficable quantities of drugs is concerned it must be regarded in that way." 110The Judge determined, however, that the two offences should be regarded as part of one transaction because the activities in question were aspects of one large drug importing operation. It was on that basis that his Honour fixed the sentences to be served concurrently. Ground 3 111The applicant relied on four grounds of appeal. Ground 3 alleges a series of miscellaneous errors on the part of the sentencing judge. It is convenient to address those first. Ground 3(a) is: "the sentencing judge erred in failing to comply with the provisions of s 16(a)(2) of the Crimes Act 1914". 112As noted in the Crown's written submissions, it appears that the applicant intended to refer to s 16F(1) of the Act. That section requires a court that has imposed a federal sentence and fixed a non-parole period in respect of that sentence to explain (or cause to be explained) the purpose and consequences of fixing that non-parole period. The section specifies in some detail the matters that must be explained. The Judge does not appear to have undertaken that task, but the failure to do so does not render the sentence a nullity: R v Hutton [2004] NSWCCA 60 at [18] to [28] per Sully J, Simpson and Sperling JJ agreeing at [75] and [76] respectively. What has been identified is a procedural error which, in my view, does not in itself warrant the grant of leave to appeal. 113Ground 3(b) is: "the sentencing judge erred in failing to take into account the provisions of s 16A(2)(e) of the Crimes Act 1914". 114That ground is misconceived. The applicant submitted: "an important consideration that was required to be taken into account was whether injury, loss or damage had been sustained". However, the requirement imposed by s 16A(2) is confined to considering such of the matters listed in the section as are "relevant and known to the Court". Included in the list (in s 16A(2)(e)) is "any injury, loss or damage resulting from the offence". Accordingly, had any such matter been known to the Court, the Judge would have been required to take it into account. However, the absence of any such matter was not a factor required to be taken into account in favour of the applicant. There was simply nothing that the Judge was required to address under that head. 115Ground 3(c) is: "the sentencing judge erred in imposing an excessive non-parole period". 116The non-parole period imposed was approximately two thirds of the head sentence. The applicant submitted that the "normal" or usual range in the case of federal offences is between 60% and 66%. It may be that such a sentencing practice had evolved at the time the applicant was sentenced, but it does not follow that a non-parole period of 66.5% is erroneously excessive. 117In fact, as noted in the Crown's submissions, the so-called range or "norm" had at one point been identified as being "in the range of about 60 per cent to 66 and two-thirds per cent" (subject to certain caveats): Bernier v R (1998) 102 A Crim R 44 at 49. In any event, the point has been put to rest by a decision of the High Court published after the hearing of the present appeal: see Hili v R; Jones v R [2010] HCA 45; (2010) 272 ALR 465 at [12]-[13] and [44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; see also [78] per Heydon J. 118Ground 3(d) is: "the sentencing judge erred in equating the offences to the type of importing of commercial quantities of cocaine and heroin". 119As submitted on behalf of the Crown, to the extent that this ground suggests that sentences for offences relating to methylamphetamine should be less severe than those for offences relating to heroin or cocaine, that proposition is not supported by authority and must be rejected. A similar argument was roundly rejected by the High Court in Adams v R [2008] HCA 15; 234 CLR 143 at [9] to [10] per Gleeson CJ, Hayne, Crennan and Kiefel JJ; at [16] to [18] per Heydon J; see also Chen v R [2009] NSWCCA 157 at [21] to [23] per Buddin J; Giles JA and Harrison J agreeing. 120A separate issue raised under this ground is whether the Judge assessed the applicant's role in the offences as one of an importer. That issue is addressed in the consideration of the remaining grounds below. 121Ground 3(e) is: "the sentencing judge erred in failing to separate the evidence that had been admitted in the trial of the co-offender Zhang". 122Having presided over separate trials and separate sentence hearings, the Judge might have seen fit separately to identify the material taken into account on sentence as against each co-offender. For my part, I found it necessary to have resort to the evidence given at the applicant's trial in order to acquire a full appreciation of the discrete Crown case against him. However, having undertaken that task, and on a fair and careful reading of the Judge's reasons as a whole, I do not think it can be concluded that his Honour in fact mistook any evidence that had been admitted only against Ms Zhang as material permitted to be taken into account in sentencing the applicant. 123For those reasons, subject to the question of the applicant's role in the commission of the offences raised by ground 3(d), I do not think there is substance in any of the complaints made under ground 3. Grounds 1, 2 and 4 124It is convenient to consider the remaining grounds together. They are: Ground 1: the sentences imposed were unduly harsh and severe. Ground 2: the sentencing Judge erred in his assessment of criminality and role. Ground 4: the sentencing judge erred in respect to parity. 125The Judge's conclusion that the applicant should receive the maximum sentence on both counts entailed both an objective conclusion (that the offences were in the worst category of their type) and a comparative conclusion (that the applicant was a more serious offender than Ms Zhang, who received less than the maximum sentence). I do not think either conclusion was open on the evidence that had been admitted against the applicant. 126Four matters stood out in his Honour's consideration as indicating that the applicant played a more important role than Ms Zhang. The Judge said: "One was that he went to China many more times. The second was that he was not an Australian citizen and came here a number of times, obviously, I would have thought, for the purpose of organising either drug importation or drug distribution, then he was the person who had 197 kilograms [sic: the quantity on count 2 was in fact 107 kilograms] of drugs in his premises, whereas she had something in the order of six or seven kilograms and, lastly, he was the person who had the list with the numbers on all the boxes in respect of the large shipment on the day in which they were arrested. It seems inescapable to me that the exporters from China provided him with information as to the boxes in which the drugs were, and he used that information when he was working with Mrs Zhang on the day of their arrest to get the drugs from the relevant boxes." 127In my view, all of those matters were equivocal so far as any comparative analysis is concerned. The applicant gave evidence that he had travelled to China several times but that evidence on its own was not capable of sustaining an inference as to any participation on the part of the applicant at the China end of the operation. Even if such an inference were open, it should not have been taken into account, for the reasons stated below. 128The fact that the applicant was not an Australian citizen was equally equivocal in determining the comparative roles of the two offenders. Whatever the applicant's purpose in coming to Australia, it says nothing of the comparative involvement of Ms Zhang. 129The third matter referred to was the fact that the applicant had a far greater quantity of the drugs at his premises than did Ms Zhang. Each offender was charged with a separate offence relating to those drugs (count 2 in each case). Plainly, count 2 against the applicant was more serious than count 2 against Ms Zhang, since it involved a vastly greater quantity of the drug, but I do not think that is indicative of a greater role in the offence that constituted the joint count. 130The final matter referred to by the Judge was the fact that it was the applicant who had in his possession at the time of his arrest the list of numbers to identify which of the cartons delivered to the warehouse contained the drugs. However, it was uncontested, and was indeed the Crown case, that both the applicant and Ms Zhang spent many hours on the day of their arrest together in the warehouse sorting the boxes on the list from the balance of the cartons delivered to Ms Zhang's business address. 131The only evidence in the applicant's trial as to the way in which the list came into existence was that Ms Zhang gave the numbers to the applicant and he wrote them down. The Judge referred to that evidence and appears to have rejected it, although that is not entirely clear. In any event, there was no other evidence about the list and, in particular, no evidence from which it was open to the Judge to conclude that the applicant had any greater knowledge or more important role in the handling of the cartons than Ms Zhang. The fact of possession of the list in those circumstances seems to me to be entirely equivocal as concerns identification of the respective roles of the two offenders. 132Other evidence in the applicant's trial strongly suggested that it was Ms Zhang who played the more important role in relation to the drugs. It was she who dealt with Mr Lee and prevailed upon him to accept an unsolicited consignment, supposedly of rock sugars. She subsequently set up a company, established business premises at the warehouse and took delivery of the two relevant shipments at those premises. 133The Crown stated that it has been recognised (presumably by sentencing courts) that those lower down in a drug hierarchy are often the most active and the most visible. On that basis, the Crown submitted that the fact that there were fewer indicia directly linking the applicant with the shipment could be taken as indicating that he had a more senior role rather than a more junior role. 134I do not think it would be appropriate to accede to that submission. The observation referred to is in the nature of a concession, sometimes appropriately made in favour of an offender, that a greater and more detectable level of activity does not necessarily indicate higher status in the operation. The converse proposition has no role in sentencing as a substitute for evidence. It is neither logical nor fair to assess an offender as having a more senior role on the basis of what is anecdotally revealed by an absence of evidence. 135The critical question is whether it was open to the Judge to conclude that the applicant played a more important role in the joint offence than Ms Zhang. On the strength of the evidence before this court, I do not think it was open to the Judge to reach that conclusion. 136Separately, it is necessary to consider whether it was open to the Judge to conclude that the offences committed by the applicant were within the worst category. 137The applicant relied on the Judge's remarks set out above and, in particular, the words "but as far as importing of trafficable quantities of drugs is concerned it must be regarded in that way [as an offence of the worst type]". It was submitted that those remarks reveal that his Honour sentenced the applicant on the basis that he was complicit in the importation of the drugs, an offence with which he was not charged. The Judge's approach was said for that reason to offend against the principles stated in the decision of the High Court in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. 138The common law principle reiterated in De Simoni is that circumstances of aggravation not alleged in the indictment cannot be relied upon for the purpose of sentencing if those circumstances could have been made the subject of a distinct charge: per Gibbs CJ at 389.7. The principle was implicitly reaffirmed in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [18], where De Simoni was cited as authority for the unexceptionable proposition that "it would be quite wrong to sentence an offender for crimes with which that offender is not charged." 139The applicant noted that, contrary to what appeared to be suggested in the submissions of the Crown, the principle applies even where the crime charged and the crime not charged carry the same maximum sentence: R v Guiu [2002] NSWCCA 181; 129 A Crim R 387 at [38] per Greg James J, Barr J agreeing at [7]; and see Hodgson JA at [3]. It was stated in that case that, to the extent that observations to the contrary made by Hunt CJ at CL in R v Lawless (CCA, unreported 24 June 1994) do not accord with the approach of the High Court in Olbrich , they are no longer to be followed. 140As noted by the Crown, the Judge's remarks in the present case, read as a whole, disclose that his Honour had clearly in mind that the offences for which he was sentencing the applicant were possession offences. However, absent the references to matters only relevant to complicity in the importations, it is difficult to see what basis there was for the Judge's conclusion that the applicant's culpability warranted the maximum sentence on either count. 141Unquestionably the amounts of the drug involved were very large but that is not the determinative consideration. To the extent to which it can be ascertained, the role played by the offender is also of great importance in assessing the objective criminality of the offence: DPP v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [255] per McClellan CJ at CL. Nothing in the facts on which the applicant stood to be sentenced warranted the conclusion that the role he played, which essentially entailed sorting the cartons at the warehouse on the day of his arrest, was such as to place his culpability at the top end of the calendar. 142The Crown submitted that it was appropriate for the Judge to have regard to "the entire transaction". As correctly noted on behalf of the applicant, however, that approach must yield to the principle stated in De Simoni . To the extent that the entire transaction brought into consideration complicity in the importation by way of aggravation, such conduct could plainly have been made the subject of a distinct charge and accordingly ought not to have been taken into account. When that conduct is excluded from consideration, what remains is recognisably outside the worst category. 143For those reasons, I am of the opinion that lesser sentences are warranted and should have been passed. A complexity arises, however, due to the fact that the sentences imposed at first instance were fixed to be served concurrently. The sentencing Judge took that course because in each case he regarded the two offences as being aspects of one large drug importing operation. The result was that neither offender received any additional penalty for his or her separate offending where there should probably have been some accumulation of the two sentences imposed. 144The position is further complicated by the fact that, following the dismissal of the appeal against sentence brought by Ms Zhang, it remains the case that she is serving her two sentences concurrently. 145There is very little material before the Court from which the applicant's culpability in the second count against him can be ascertained, save to observe that the amount of the drug was very large, and considerably larger than the amount which formed the basis of count 2 against Ms Zhang. 146Conversely, however, there is force in the applicant's contention as to the joint offence that Ms Zhang appears, on the evidence admitted against the applicant, to have played a more important role than him in that offence. That leads me to the conclusion that a slightly shorter sentence should be imposed on the applicant (than was imposed on Ms Zhang) on count 1. 147The orders I propose are:

1. That the time for giving notice of the application for leave to appeal be extended to 17 June 2010.
2. That leave to appeal be granted.
3. That the appeal be allowed.
4. That the sentences imposed on 3 December 2004 be quashed and, in lieu thereof, that the applicant be sentenced as follows: (a) On count 1, to a term of imprisonment of 18 years commencing on 14 May 2003 and concluding on 13 May 2021. (b) On count 2, to a term of imprisonment of 18 years commencing on 14 May 2005 and concluding on 13 May 2023.
5. That there be a non-parole period for both sentences of 13 years and 4 months commencing on 14 May 2003 and concluding on 13 September 2016.

Amendments 14 March 2011 - Edited 2nd sentence to refer to Ms Zhang Amended paragraphs: 91 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2011