…"
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.