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[2007] NSWCCA 247
Court of Criminal Appeal (NSW)
2007-07-23
Spigelman CJ, Simpson J, Harrison J
Original judgment source is linked above.
The application for leave to appeal against sentence: Tyler 108 Initially, Tyler formulated five grounds of appeal, expressed as follows: "1. The sentencing judge erred in the manner in which he took into account the plea of guilty;
Leave was, at the commencement of the proceedings, granted.
Ground 1: plea of guilty 110 It is usual, in sentencing in NSW, to allow and specify with some precision the reduction in sentence given by reference to the "utilitarian value" of a plea of guilty: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. That approach was frowned upon by the High Court in Cameron v The Queen [2002] HCA 6; 209 CLR 339. The majority there favoured an approach which permitted recognition of a plea of guilty by reference to the willingness of the offender to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing. 111 Cameron, however, has been held to have no application to sentencing in NSW: R v Sharma [2002] NSWCCA 142; 54 NSWLR 300. That is because of the particular provisions concerning sentencing contained in the Crimes (Sentencing Procedure) Act 1999. That Act does not apply to NSW judges sentencing under Commonwealth law, as was the case here. Accordingly, Cameron is applicable. 112 Taylor DCJ recognised this, and said: "The appropriate discount in Commonwealth matters remains a discretion for the sentencing judge."
Although he clearly made an allowance for the plea of guilty, he did not quantify the reduction made to the sentence. He then added: "However, the offender's plea of guilty was made in the face of a strong Crown case and it must be said that conviction was inevitable." 113 On behalf of Tyler it was submitted that Taylor DCJ erred in the following respects: "(i) Finding that there should be no discount in respect of the plea attributable solely to its utilitarian value; and
(ii) Diminishing the quantum of the discount by reference to the strength of the Crown Case. In this regard his Honour's use of the word '[h]owever' indicates that his Honour erroneously tempered his recognition of the utilitarian value of the plea in light of the strength of the Crown Case. In Drew [[2005] NSWCCA 50] the CCA found error where, similarly, 'reference to the early plea is followed immediately by observations about the strength of the Crown Case' …;
(iii) Failing to quantify any discount for the plea of guilty either discretely or as part of a combined discount rolled up with recognition of past assistance." 114 In my opinion none of these arguments can be sustained. Taylor DCJ was called upon to sentence Tyler in accordance with the principles stated by the High Court in Cameron. This specifically excludes reference to the utilitarian value of the plea. Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable. Nor is there any requirement, in sentencing Commonwealth offenders, for quantification of a discount for the plea of guilty. I would reject ground 1.
Ground 2: past assistance 115 I have already outlined, so far as it is appropriate to do so, the nature of assistance given by Tyler, and the value attributed to it by Taylor DCJ, on the basis of an assessment by the NSW Crime Commission. 116 In sentencing Tyler Taylor DCJ referred expressly to that evidence and described the assistance as "of considerable value to the Crown". 117 The submission made in this respect was that inadequate weight was given to the particular piece of information provided by Tyler. Criticism was made because no express mention was made of what that piece of information was. In my opinion there were very good reasons for his Honour to be elliptical about that, as, indeed, I have been. That does not mean it was overlooked; in fact avoidance of reference to it was, no doubt, brought about by reason of Taylor DCJ's recognition of its significance, and the danger to which it potentially exposed Tyler. I would reject this ground of the application.
Ground 3: rehabilitation 118 By s 19AB of the Crimes Act 1904 (Cth) a court imposing sentence on an offender under Commonwealth law, where the sentence of imprisonment is in excess of three years, must fix a non-parole period or recognisance release order. It is generally considered appropriate that the ratio of the non-parole period to the head sentence be approximately 60 to 66 percent: R v Bernier (1998) 102 A Crim R 44. 119 The sentence imposed by Taylor DCJ is of a non-parole period that is 61 percent of the total sentence. It is that of which Tyler now makes complaint; it was argued on his behalf that, by reason of a "concession" made by the Crown in the sentencing proceedings, as well as other matters, the proportion was excessive and the non-parole period ought to have been lower. 120 The "concession" said to have been made by the Crown was expressed in the following terms: "If your Honour finds such prospects [of rehabilitation], then your Honour is obliged to take it into account, obviously, for statutory reasons but it might, or can, [be] better reflected not only in sentence, but in the non-parole period, so as not to give rise to a sentence which is out of shape in relation to the deterrent effect which is necessary in cases like this." 121 I take this to be a "concession" that, if prospects of rehabilitation were found, then it would be open to the sentencing judge to impose a sentence which included a non-parole period of less than 60 percent of the head sentence. Such an approach serves to maintain the deterrent effect of a suitably lengthy head sentence. 122 Such a proposition is in accordance with the authority of Bernier. 123 A number of circumstances were pointed to on behalf of Tyler as warranting a reduction in the non-parole period. These included the judge's finding as to his prospects of rehabilitation; his awareness of Tyler's drug and alcohol addiction which was the motivating force for his offending; and his previous good character. 124 The difficulty for Tyler, however, is that the decision was peculiarly a discretionary one. There is nothing in the Remarks on Sentence which would suggest that Taylor DCJ did not have adequate regard for everything that has now been advanced. In other words, taking all relevant circumstances into account, Taylor DCJ arrived at a perfectly proper balance between the non-parole period and the total term of the sentence. I can see no error in the approach taken. Accordingly, I would reject this ground of the application.
Ground 4: protection 125 I have mentioned above the evidence given by Tyler as to the nature of his incarceration. At the time of sentencing he had made a considered decision not to seek to be placed on protection. It was on this basis that Taylor DCJ sentenced him. 126 This court was provided with an affidavit sworn by Tyler in which he deposed that this position had now changed. He had been threatened whilst in custody because he was considered to be an informer. He made inquiries about the genuineness of the threat and was told that it was real and serious. As a result, he said that he had been placed on protection. 127 In support of the ground the following submission was made: "The court has a general power to receive fresh or new evidence where the interests of justice require that course. That power has been exercised in circumstances where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing."
R v Fordham (1997) 98 A Crim 359 (at 377) and R v Adanguidi [2006] NSWCCA 404 at [60] were cited as authority for the proposition. 128 The proposition is incorrect, and the cases cited do not support it. 129 In Fordham, Howie AJ (as his Honour then was) with whom Hunt CJ at CL and Smart J agreed, acknowledged that, on occasions, fresh evidence has been received by this court where a miscarriage of justice may have occurred because of incompetent legal representation at first instance, or negligence or carelessness in the presentation of the defence; and that new evidence may be admitted where it has real (but previously unrecognised) significance, or it was not made known to the legal representatives prior to sentencing. In either case, the evidence existed at the time of sentencing; it was not presented either because it was not known or its significance was not recognised. That is vastly different from the admission of evidence of circumstances that did not exist at the time of sentencing. Such evidence is inadmissible on an application for leave to appeal unless error is otherwise established and this court proceeds to exercise the sentencing discretion afresh: see R v Willard [2001] NSWCCA 6. That is because this court exercises a statutory jurisdiction conferred by s 6 of the Criminal Appeal Act 1912, s 6(3) of which permits this court to quash the sentence: "… if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed …" 130 Here, the circumstances the subject of the proposed fresh or new evidence was not only not known or not recognised at the time of sentencing; it did not exist, and did not exist by reason of the decision of Tyler. Such evidence would be admissible only if the court proceeds to re-sentence; it is not admissible for the purpose of establishing error, so that the court should proceed to re-sentence. 131 In any event, the old view that this court should proceed on the basis that a prisoner serving a sentence on protection necessarily suffers more onerous conditions than one who does not no longer holds good: see R v Sukkar [2006] NSWCCA 92 at [3]-[5]. 132 In my opinion this ground should be rejected.
Ground 5: manifestly excessive 133 The submission advanced on behalf of Tyler was relatively succinct. It was framed as follows: "56. The applicant submits the head sentence imposed was manifestly excessive when consideration is given to matters already identified, specifically failure to give appropriate to the plea of guilty, the failure to quantify the discount for the plea of guilty together with the past assistance, the prospects of rehabilitation, together with a number of additional findings made by the learned sentencing Judge. These include: (i) that the applicant was targeted at a place of rehabilitation by persons already criminally involved in the operation;
(ii) that the applicant's continued involvement in the crime was explained, in part at least, by being shown the gun by Hatfield. The Judge described this as 'a very significant fact, short of duress but nevertheless operating on the offender's mind in a very real sense';
(iii) the applicant acted solely at the direction of others and was not involved in any of the decisions that gave effect to the plan to import the cocaine." 134 It is somewhat ironic that each of three identified matters in the submission contained a footnote reference to the passage where it was expressly adverted to in the Remarks on Sentence. In other words each of those matters was expressly taken into account. So also were the matters identified in the opening paragraph of the submission. I have already dealt with the ground concerning the plea of guilty. A reading of the Remarks on Sentence makes it plain that all matters were appropriately taken into account. 135 In R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340, this court promulgated a guideline for sentencing of couriers and persons low in the hierarchy of an importing organisation where the amount involved is a substantial commercial quantity - ie 3.5 kilograms to 10 kilograms - the head sentence promulgated was 10 to 15 years. 136 Notwithstanding that the High Court reversed this decision (Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584), it has been held that the range of sentences proposed continues to provide "a useful guide" to sentencing Commonwealth drug offenders: R v Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at [65]; and for a summary of the results of previous sentencing decisions: R v To [2007] NSWCCA 200 at [21]-[22] per Handley JA. Also necessary to be borne in mind is the repeal of s 16G of the Crimes Act 1914 (Cth) which previously required a court sentencing Commonwealth offenders to take into account (and thereby moderate the sentence) by reason of the absence of remissions available in NSW. 137 It is true that the starting point in respect of the present sentence is difficult to establish because the discount for the plea of guilty and the discount for past assistance have not been quantified. 138 As the Crown points out, even if it is assumed that all discounts (including the specified 15 percent for future assistance) are factored in, the starting point would have been approximately 18 years (against a maximum penalty of life imprisonment). While this would have been a severe sentence for a courier or person low in the hierarchy, when the proposed quantity of cocaine (20-30 kilograms) is also taken into account, such a sentence sits comfortably with what was proposed in Wong and Leung. 139 Further, it cannot be assumed that the total discount was 50 percent; in my opinion the plea of guilty did not warrant any more than 15-20 percent (on Commonwealth law principles) and the past assistance, while useful, was of limited value. These matters do not persuade me that the sentence imposed was manifestly excessive. No illustrations of sentencing patterns were put before this court to establish that the sentence was out of line with those imposed in comparable cases. I would reject this ground of the application.
Ground 6: parity 140 If the sentence imposed on Chalmers were allowed to stand, Tyler may have a persuasive case to make in relation to parity so far as he is concerned. However, having regard to the view I have expressed in relation to that offender, the strength of this ground is significantly diminished. 141 The parity argument in relation to the sentence imposed on Chandler drew attention to the fact that, although Chandler pleaded guilty and was entitled to some discount in respect of that circumstance, he did not cooperate with investigators and was not entitled to any discount for past or future assistance. (It was also argued that a relevant circumstance is that Chandler is not serving his sentence on protection, but, as I have indicated, the fact that Tyler is serving his sentence on protection is not a matter that this court can take into account.) 142 If the 15 percent allowed to Tyler by way of reduction by reference to future assistance is built into the sentence, then the starting point of his head sentence was 10½ years. On the facts found in Tyler's case, he was not in a position significantly different to that of Chandler. (As I have indicated, that cannot be said on the facts found by Walmsley DCJ in Chandler's sentencing, and that clearly creates some complication for this application.) In addition to the 15 percent designated for future assistance, Tyler was entitled to some further discount in respect of assistance already given; I would not quantify this at more than 10 percent. However, if that is added to the 15 percent, giving a total discount of 25 percent, then the starting point can be seen to have been a head sentence of 12 years. 143 The "sense of grievance" said to be legitimately felt by Tyler is therefore attributable to the whittling away of the value of his assistance; if he is to be treated as approximately on a par with Chandler, then, in respect of past and future assistance, he has received a discount of only 10 percent on his head sentence and 12 percent on the non-parole period. 144 This suggests that there is some substance in his complaint about parity in this respect. 145 I would add this: on the principles applying to Crown appeals, already explained, it has been necessary to propose, in respect of Chalmers, substitute sentences that are the very lowest end of the range properly available in respect of the offence. This, in my opinion, is capable of adding to Tyler's sense of grievance. Of course, given that the Crown appeal in Chalmers had not been decided at the time of argument, the court has not heard from the parties in this respect. 146 I have come to the view that Tyler's application should be granted, the appeal allowed, and he be re-sentenced to establish parity with Chandler, taking into account a discount of 25 percent for past and future assistance. 147 I therefore propose that he be re-sentenced to a term of imprisonment of 7½ years, with a non-parole period of 4½ years. 148 The orders I propose are:
(2) The respondent be sentenced to imprisonment for 12 years commencing on 21 July 2006 and expiring on 20 July 2018 with a non-parole period of eight years expiring on 20 July 2014.
(1) Leave to appeal granted, appeal allowed, sentence set aside;
(2) Applicant sentenced to imprisonment for 7½ years, commencing on 9 May 2005 and expiring on 8 November 2012, with a non-parole period of 4½ years, expiring on 8 November 2009. 149 HARRISON J: I agree with Simpson J. **********
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CITATION: Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247
Cameron v The Queen [2002] HCA 6; 209 CLR 339 R v Adanguidi [2006] NSWCCA 404 R v Bernier (1998) 102 A Crim R 44 R v Fordham (1997) 98 A Crim 359 R v Khouzame [2005] NSWCCA 505 R v Lee [2007] NSWCCA 234 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 R v Olenik [2000] NSWCCA 90 R v Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 CASES CITED: R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 R v Sukkar [2006] NSWCCA 92 R v Tarrant [2007] NSWCCA 124 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v To [2007] NSWCCA 200 R v Wall [2002] NSWCCA 42 R v Willard [2001] NSWCCA 6 R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340 Savvas v The Queen [1995] HCA 29; 183 CLR 1 The Queen v De Simoni [1981] HCA 31; 147 CLR 282 The Queen v Olbrich [1999] HCA 54; 199 CLR 270
and that his involvement was "relatively limited". 78 It has long been the case that a relevant consideration in sentencing for conspiracy is the "role" played by the offender being sentenced: The Queen v Olbrich [1999] HCA 54; 199 CLR 270; Savvas v The Queen [1995] HCA 29; 183 CLR 1; R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340. 79 But this, to my understanding, has generally been intended, and read, as a reference to the position or seniority in the organisation of the offender whose sentence is under consideration. Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy - in a drug importation conspiracy, without couriers, no drug could or would be imported - they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward. 80 By contrast, those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable. A relevant factor here is the level of profit to be derived. 81 That is not the same as saying, as was here said, that a participant in a conspiracy is to be sentenced (solely) for what he or she does. In this case, that was applied to mean that Chalmers was to be sentenced only for his physical (or overt) acts undertaken in pursuance of the conspiracy. 82 The issue was dealt with at some length in Fox and Freiberg: Sentencing: State and Federal Law in Victoria, Oxford University Press, 1999. At pp 1012-1015, the authors said: " Role of the offender 12.916 The courts have noted that the organisation of the importation, manufacture, or cultivation of drugs and their distribution and sale takes on the features of a hierarchical commercial enterprise [ R v Chaplin (1991) 58 A Crim R 194]: 'At the top of the distribution chain monopoly of power is high, risk of detection low (but the consequences if detected are very severe) and addiction rare. Profits at that level are very high. Further down the line monopoly of power evaporates and the risk of detection rises as the number of separate transactions increases … Generally manufacturers (or importers), and wholesalers handle much larger quantities of the drug than middlemen, retailers or consumers. The level of operation within the distribution chain, the scale of operation and the quantities of drugs, all correlate reasonably closely, but it is by no means a perfect relationship.'
…" 83 Identifying the "role" of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the "role" of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy - the agreement to participate in an organised criminal activity. 84 That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [102]. That, in my opinion, is the first, and most fundamental, flaw in the approach to sentencing here taken. 85 Here, the sentencing overlooked the central "act" of Chalmers; he agreed, with the other conspirators, to participate in the importation of a large quantity of a prohibited drug into this country. While the authorities establish that identification of the role of the participant (if it can be identified) is relevant (Olbrich) and important, they do not establish that the fact of agreement, and the subject of the agreement, are to be put aside in favour of concentration upon the physical act or acts of the offender. In Savvas the appellant had been convicted of two conspiracies - the first to import, and the second to supply, heroin. The High Court held that, notwithstanding that the offences charged were of conspiracy, the sentencing judge was entitled to take into account that the heroin was in fact imported and distributed pursuant to the conspiracy, and that the appellant was involved in those events. To do so did not involve a contravention of the principle stated in The Queen v De Simoni [1981] HCA 31; 147 CLR 282. There was there no suggestion that it was Savvas who had in fact carried the heroin into this country; nevertheless, on what was decided in the High Court, it was appropriate for the sentencing judge to take into account that the object of the conspiracy had been achieved. The sentencing judge was not confined to sentencing the appellant on the narrow basis of what he actually physically did. 86 In response to the Crown submissions, counsel for Chalmers invoked the well-known principles concerning appellate review of fact finding by a primary judge. Generally, the appellate court is bound by the findings of fact made by the trial judge, unless those findings were not open on the evidence: see, eg, R v Olenik [2000] NSWCCA 90; R v Tarrant [2007] NSWCCA 124; R v Khouzame [2005] NSWCCA 505. 87 Counsel argued that, not only was it open to Berman DCJ to make the findings he did in relation to Chalmers, but also that those findings were "inevitable". He sought to support this by pointing out that the primary conspirators had, in October 2004, successfully imported about 10 kilograms of cocaine, without any involvement of Chalmers, and that there was no suggestion that Chalmers had taken on the role of some of the participants in that enterprise - in other words, as I understand the argument, the primary conspirators had previously accomplished a similar importation, without the assistance of Chalmers, and therefore could have accomplished this importation without his help. In later submissions, considerable emphasis was placed upon the proposition that Chalmers was not "essential" to the conspiracy. 88 The inference sought to be drawn from this was that Chalmers' role was of minimal significance. 89 I am unable to accept that the findings of fact were open, much less inevitable. It may be - indeed it is - true that the principals had previously imported cocaine without help from Chalmers. It may also be true that they could have completed this proposed importation without his assistance. It by no means follows that the role he played is of minimal significance. The argument is a non-sequitur. 90 Counsel drew attention to that passage in Olbrich in which the majority said: "… it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did." 91 Counsel argued that, in saying that offenders are to be sentenced "for what they do", Berman DCJ was meticulously applying this principle. 92 I do not agree, for reason I have already given. Chalmers did more than simply book and pay for airline tickets: he agreed to be, and was, a participant in an agreement to import illegal drugs into Australia. No amount of defining, act by act, what Chalmers physically did can eliminate, or be allowed to obscure, that important fact. Nor, in focussing narrowly on what Chalmers did, was the judge bearing steadily in mind the offence for which he was to be sentenced. Indeed, that appears to have been put to one side. 93 Counsel also sought to make light of the degree of contact between Chalmers and North, pointing out that the two were long term friends and that their ongoing contact was not surprising. That, too, might be so, but it overlooks what was learned from the recorded conversations. Their ongoing contact was not in pursuit of their friendship; it was in pursuit of the criminal end of the conspiracy. 94 In my opinion in the present case the sentencing judge unduly confined the matters he took into account for the purposes of sentencing. 95 It follows that, in my opinion, the Crown has made good these grounds of appeal.
Ground 3: General deterrence 96 In support of this ground the Crown referred to well-known authority. His Honour made appropriate reference to the need for the sentence to include a component relative to general deterrence. Whether he adequately recognised that in its practical application can only be tested by examination of the sentence itself. 97 Counsel for Chalmers argued that the sentence was not, either at face value, or by comparison with the sentences imposed on either Chandler or Tyler, manifestly inadequate. He pointed out that, when the "approximately 10 percent" discount for assistance is factored into the sentence, the starting point can be shown to have been just over six years and one month. While the judge was not able to make a finding as to Chalmers' knowledge of the precise quantity of cocaine intended to be imported, he was satisfied that Chalmers knew that the quantity was "significant, substantial". Counsel also pointed out that, because no drug was, in the result, imported, the pure weight could not, as is usually done (see Customs Act s 4(4)), be ascertained. 98 Counsel also referred to the "strong" subjective case. I do not accept that that is the correct characterisation of the subjective case put before Berman DCJ. Chalmers was 42 years of age, and had no criminal record. His age does not help in this respect - he cannot claim the immaturity of youth as a reason for his transgression. The absence of a criminal record is of little weight in an offence such as this. Also relied upon was his successful career, but this, too, does not, in my opinion, assist in establishing that the subjective case was strong - to the contrary, that Chalmers had the advantages he had given him little cause for comfort. 99 I do accept that a diagnosis of bipolar disorder and depression rendered him vulnerable to the approach by North to become involved and is a relevant sentencing consideration to some (limited) extent diminishing his culpability. 100 Both parties referred this court to authorities concerning the principles to be applied in determination of Crown appeals against sentence. They are so well known as not to require rehearsal here. They were stated comprehensively by Wood CJ at CL in R v Wall [2002] NSWCCA 42. I bear them in mind in what I am about to say. 101 Even bearing those principles in mind, I am satisfied that the sentence imposed is manifestly inadequate. This was a conspiracy to import at least 20, and possibly 30, kilograms of cocaine (of unknown purity). Preparations for its execution were considerably advanced, and were thwarted only by either the untimely exposure of the involvement of airport employees in activities of this nature, or the unavailability of the drug in Buenos Aires, or a combination of the two. It involved the corruption of airport employees. Neither the fact that the importation was never going to succeed, by reason of the prior knowledge of the authorities, nor the fact that it was thwarted for other reasons, mitigates the gravity of the criminality involved. 102 In my opinion the Crown appeal should be allowed, and Chalmers re-sentenced. 103 Against the possibility of re-sentencing the court received an affidavit affirmed by Chalmers on 15 July 2007. He gave an account of his custodial conditions. He has been placed in a protective custody wing of the prison in which he is held, but this is a wing designed to house sex offenders. The programmes offered are focussed upon the rehabilitation of such offenders. 104 He has work "folding curtains". He continues to take medication for his bipolar disorder. He has had only three visits since his incarceration. His two children live in Melbourne with his former wife and he has not seen them in about 18 months. They communicate by telephone and letters but, according to Chalmers, their mother has been "very obstructive". He sees little of the children, even they though they travel to Sydney frequently. 105 He said that he had had time to reflect upon his offence and feels great remorse "about the concept of someone importing drugs into the country". 106 The affidavit material casts little light upon the decision this court must make. 107 Prior to the hearings, neither party provided this court with any decision on sentencing in what might be called comparable cases. The court sought such assistance and received a further submission from the Crown. The Crown maintained its position that there is no case decided that is suitable to provide this guidance the court sought. I accept that the majority of cases dealt with by this court involve an actual importation, even if it is intercepted before it is released onto the market. But there have been numerous cases of sentencing in respect of conspiracies to import prohibited drugs or being knowingly concerned in such importation. A useful schedule is set out in a judgment of McClellan CJ at CL in R v Lee [2007] NSWCCA 234. It is a lengthy schedule, and I do not propose to repeat it here. On the basis of that information, and the objective and subjective circumstances, I propose that Chalmers be re-sentenced. I consider the appropriate range of head sentences is of 12 to 16 years. Having regard to the principles that apply to re-sentencing after a successful Crown appeal I propose that Chalmers be sentenced to imprisonment for 12 years with a non-parole period of 8 years.
[2005] NSWCCA 505
[2001] HCA 64