Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Walsh v R (Cth) [2020] NSWCCA 182 Hearing dates: 14 July 2020 Date of orders: 3 August 2020 Decision date: 03 August 2020 Before: Ward CJ in Eq at [1]; Wilson J at [2]; Ierace J at [41]. Decision: (1) Extend the time in which to bring an application for leave to appeal against sentence to 22 April 2020; (2) Grant leave to appeal; (3) Quash the sentence imposed on 21 December 2016 by Jeffreys DCJ; and, (4) In lieu, sentence the applicant to 9 years imprisonment, to date from 12 January 2016 and expiring on 11 January 2025; with a non-parole period of 4 years and 9 months, expiring on 11 October 2020, on which date the applicant will be eligible for parole. Catchwords: CRIMINAL LAW – appeal against sentence – conspiracy to import a marketable quantity of a border controlled drug – plea of guilty – "Xiao error" – failure to take into account the utilitarian value of the plea of guilty – error conceded – whether a lesser sentence is warranted in law – strong subjective case – evidence pointing to rehabilitation having been achieved Legislation Cited: Criminal Appeal Act 1912 (NSW) Criminal Code (Cth) Crimes Act 1914 (Cth) Cases Cited: Lee v R [2012] NSWCCA 123 R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 Thammavongsa v R [2015] NSWCCA 107; (2015) 251 A Crim R 342 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Torikai Walsh (Applicant) Regina (Crown) Representation: Counsel: Applicant (self-represented) Sam Duggan (Crown) Solicitors: Applicant (self-represented) Director of Public Prosecutions (Cth) (Crown) File Number(s): 2014/00250028 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Crime Date of Decision: 21 December 2016 Before: Jeffreys DCJ File Number(s): 2014/00250028 Judgment 1. WARD CJ in Eq: I agree with Wilson J. 2. WILSON J: Having entered a plea of guilty to a charge contrary to ss 307.2(1) and 11.5(1) of the Criminal Code (Cth) of conspiring to import a marketable quantity of a border controlled drug, the applicant was sentenced on 21 December 2016 to a term of 9 years imprisonment to date from 12 January 2016, with a non-parole period ("NPP") of 5 years, expiring on 11 January 2021. 3. Fourteen months after that sentence was imposed, on 5 February 2018, the decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 ("Xiao") was handed down by this Court. 4. The applicant seeks leave to appeal out of time, proposing a single ground of appeal, that there was "Xiao error" in the imposition of sentence upon him. The applicant complains that he was not afforded the full worth for the plea of guilty he had entered, in recognition of its utilitarian value. The Crown concedes that there was error. 5. No issue is taken by the Crown with an extension of time being granted to the applicant in which to advance his appeal, and I would extend the time in which to file the appeal to 22 April 2020. The Proceedings Before the District Court 1. The applicant was arrested with respect to this matter on 5 December 2013. On 13 October 2015, he was committed for sentence to the District Court, entering a plea of guilty to a single count on a fresh indictment presented before that court on 14 March 2016, to the charge of conspiring to import a marketable quantity of a border controlled drug between about 31 May 2012 and about 3 December 2013. Such a charge carries a maximum sentence upon conviction of 25 years imprisonment, or a fine of $850,000, or both. 2. There is no challenge by the applicant to the findings of fact made by the sentencing judge. Although there were some obvious errors in the conclusions of the sentencing judge, they were, in brief, as follows. 3. In November 2012, an investigation by federal authorities established a connection between the transfer of monies using the money transfer service Western Union, and consignments arriving in Australia via express post which contained cocaine. The applicant was identified as the person who directed a group responsible for arranging the consignments. The others in the group were William Corbett, Israel Traecey, and Tamara Warrington. 4. Between 17 June 2012 and 3 December 2013, over half a million Australian dollars was remitted to destinations in Colombia, the United Kingdom, the United States, and Israel. In a roughly contemporaneous period, between 31 May 2012 and 3 December 2013, Australian authorities intercepted 19 consignments which contained cocaine. [1] International law enforcement intercepted a further five such consignments. Of the consignments intercepted locally, the weight of pure cocaine in any single package ranged between 7.48 grams and 161.36 grams. The total pure weight of cocaine intercepted was 1154.3 grams. [2] The street value of the drug was $780,000. 5. Another 42 consignments were not intercepted. [3] 6. On behalf of an unidentified person or persons, the applicant remitted money and made arrangements to collect the consignments, or directed others to do so. He tracked incoming consignments, posed as the consignee, and sometimes personally collected the consignment. He liaised with the international supplier concerning the consignments, including as to the price of the cocaine, the weight of the consignments and the cocaine, the timing and payment for them, the destination, how to more easily send and receive the consignments, concerns as to discovery by the authorities, and the profits to be made from the importations. The consignments were sometimes sent directly to the applicant or his co-conspirators, or to fictitious persons. He used a number of user names when communicating with the supplier. 7. The applicant tracked 30 shipments through on-line or internet inquiry, sometimes using a false identity to secure the information. 8. A range of deceptions was used to collect the consignments, including pretending to be a fictitiously named consignee. 9. The cocaine was secreted within the consignments in sophisticated ways, including inside a guitar, in paper and books, in the spines of folders, in the seat of a "onesie" costume, and inside batteries. The profit for the importations was in the thousands of dollars weekly. These profits were reinvested into the conspiracy by the applicant. In his evidence to the sentencing court, the applicant said he received between $500 and $2000 per consignment, plus an amount of cocaine. 10. The sentencing judge concluded that the applicant acted on behalf of others; receiving instructions from those persons, and money to pay for the cocaine, passing the cargo to them on arrival. His role in the importation was found to be "integral" and "pivotal"; he provided "a link in the chain between the overseas connection and the Australian connection", and recruited others to remit money for the consignments. 11. The sentencing judge accepted the applicant's evidence given at the sentencing hearing to the effect that he had acted under non-exculpatory duress, motivated to offend by threats of violence against him and his family that were made by persons to whom the applicant owed money for drug and gambling debts. He concluded that the applicant, a person of previous "unblemished" character, was contrite, and had "excellent prospects of rehabilitation", being unlikely to offend again. 12. In making those positive findings the sentencing judge had regard to the applicant's family support, and good work history, concluding that he was a talented musician with reasonable prospects in the music industry. The Error 1. Dealing with the applicant's case (and that of the co-conspirator Treacey) before Xiao clarified the approach to be taken to the entry of a plea of guilty in Commonwealth sentence matters, the sentencing judge referred to Lee v R [2012] NSWCCA 123 wherein Hoeben JA (as his Honour then was) [4] said, at [58], that a plea of guilty should be taken into account as recognition of the offender's willingness to facilitate the course of justice, but not on the basis that the cost of a contested hearing has been saved. The sentencing judge concluded: "Having considered the matter it is my view that the pleas of guilty can be accepted as being motivated by a willingness to facilitate the course of justice and also an indication of contrition. I propose to take the pleas of guilty into account when I impose sentence and I propose to discount any sentence I would otherwise impose in the region of 25%". 1. Recognising a plea of guilty in that way was held to be an error in Xiao, wherein the approach to be taken to a plea of guilty in a sentence matter governed by s 16A of the Crimes Act 1914 (Cth) was considered at length, with this Court (per Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) holding at [278]: "… [I]t is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler [v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247] and the cases which followed it provide to the contrary, they should not be followed". 1. It follows that the Crown's concession of error on the part of the sentencing judge is properly and fairly made. The question is whether this Court should move to re-sentence the applicant, or decline to do so being satisfied that no lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW). The Case on Re-Sentence 1. Error having been established; it is the task of this Court to put aside the sentence imposed at first instance and, on the basis of the evidence before the sentencing judge and having regard to any relevant evidence of the applicant's post-sentence circumstances, determine the sentence that should be imposed upon him. If the sentence that this Court concludes to be the appropriate one in all of the circumstances is a lesser sentence than that imposed by the sentencing judge at first instance, it should be imposed: Thammavongsa v R [2015] NSWCCA 107; (2015) 251 A Crim R 342 at [24]-[25]. 2. In considering the appropriate sentence it is necessary, both at common law and in compliance with s 16A(1) of the Crimes Act 1914 (Cth), to make an assessment of the objective gravity of the offence. That involves having regard to the criminality of the conspiratorial agreement and the applicant's involvement and role in it: R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72]. The applicant's offence was one that extended over an 18 month period and involved numerous overt acts in furtherance of the conspiracy. Its object was to import a marketable quantity of cocaine. 3. His role in the conspiracy was, as the sentencing judge concluded, a significant one, and of greater importance than those of the co-conspirators. It was the applicant who introduced the co-conspirators to the scheme, and gave instructions to them from time to time as to the means of collecting packages using false names or false accounts of themselves. He also directed individual co-conspirators with respect to the collection of particular consignments. He liaised with the international supplier, negotiating the price for the product, managing the logistics of the consignments, and reinvesting profits to achieve the object of the conspiracy. 4. Over the course of an 18 month period, more than half a million dollars was transferred overseas in payment for the consignments, with over 1.1 kilograms of cocaine intercepted by local law enforcement agencies. The profit was considerable, with the applicant receiving both cash and cocaine for his part in the scheme. It exceeded the debt that the sentencing judge accepted was owed by the applicant to those for whom he acted. 5. This was well organised criminal activity, involving a number of individuals oversighted by the applicant, with the object of achieving a most serious crime, for the profit of the conspirators, and to the detriment of the community. 6. As to the subjective evidence, the sentencing judge made a number of highly favourable findings concerning the applicant's case. 7. The applicant was aged 23 to 24 years old during the currency of the conspiracy, and 27 years old when sentenced in the District Court. He is now aged 30 years. He relied upon the report of a psychiatrist, Dr Jonathon Adams, at first instance. Dr Adams took a history from the applicant, which was accepted by the sentencing judge. 8. The applicant has a close and supportive relationship with his father and siblings, and a young son with whom he maintains contact. 9. Having left school at the age of 16, the applicant was employed reasonably consistently, largely in unskilled jobs, although he has a strong interest and involvement in the music industry. The applicant commenced but did not complete a degree in music production. When at liberty prior to the finalisation of the criminal proceedings in the District Court, the applicant began performing as a freelance artist for a prominent international record company, and the sentencing judge noted that his music was to be released by that company. At first instance, the sentencing judge concluded that the applicant "is talented and well thought of in the music industry". He was also involved in a clothing business, and well regarded by his business partner. 10. The applicant began using alcohol at the age of 12 years and illicit drugs from age 14. His drug use became a habit, with the applicant using a variety of drugs regularly, including cocaine, LSD, and ecstasy. He also developed a gambling habit, and it was these two addictions that led to the applicant's indebtedness, indebtedness that the sentencing judge accepted gave rise to the applicant's involvement in the commission of this offence. 11. The applicant claimed, and the sentencing judge accepted, that "he was forced by criminal elements to become involved as a means of reducing that financial debt", feeling that his family would be hurt if he did not participate. The sentencing judge concluded that "the offender is able to make out non-exculpatory duress", a feature treated as a matter mitigating sentence. 12. The sentencing judge further accepted that the applicant also profited personally from his involvement. 13. The sentencing judge concluded that the applicant, a person of good character, had made good use of the time he had spent in custody on remand (over 11 months), and good use of his conditional liberty, and had "excellent prospects of rehabilitation". He thought it was unlikely that the applicant, who was contrite, would reoffend. 14. Against the event that this Court would conclude there had been error and consider resentence, the applicant swore an affidavit on 20 April 2020 in which he deposed that he has worked consistently towards his rehabilitation, achieving sobriety, and taking every opportunity to improve himself since sentence was imposed upon him. His affidavit is eloquent and impresses me as sincere; it establishes that the applicant has gained a high degree of insight into the perils of drug use, and a strong determination to remain abstinent such that he can make a positive contribution to society, and be an appropriate role model for his son. He has undertaken a number of courses whilst in custody that are designed to assist addicts to overcome dependency on drugs, and the applicant believes that he has gained much useful knowledge from his participation in them. 15. He has maintained employment, as a librarian and in building maintenance, and has striven to be productive during his time in custody. His religious faith has deepened. His conduct during his sentence has been exemplary, with drug tests negative for illicit drugs, and Corrective Services New South Wales case notes are consistently positive about the applicant's attitude, behaviour, and work ethic. 16. Testimonials from a former fellow prisoner and from the mother of the applicant's son, a student of medicine, also speak highly of the applicant, and attest to his positive outlook and determination to remain drug and crime free on his release to the community. The applicant said in his affidavit: "I would like to take this opportunity to apologise to the court and express my regret at the decisions that I made those years ago. The decisions I made seven years ago have changed the course of my life and that of others. They were made by me and only me and I have to shoulder the complete responsibility for them. I can confidently say that I will not appear before the courts again and I would like to apologise once again." 1. The applicant's subjective case is a strong one. I accept that he has made great progress towards complete rehabilitation, such that there is little to no risk that he will again descend into drug use and crime. The weight of the evidence in the subjective case relevant to resentence is such that I am persuaded that specific deterrence has little or no remaining role to play. 2. General deterrence, however, remains an important consideration. This aspect of sentencing has been held by the High Court and by courts of criminal appeal in all states to be a significant feature in the determination of the sentences to be imposed for drug crimes such as that committed by the applicant, because of the difficulty of detecting them, and the social consequences that follow: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, at [64]. The need for the sentence to deter others by showing would-be offenders of what lies in store for drug offenders of this ilk must be given "chief weight". 3. Having considered the evidence relevant to re-sentence, including the impressive evidence of rehabilitation achieved by the applicant during the course of his sentence, and giving due attention to the role of general deterrence with respect to drug offences of this nature, the sentence that I would impose is one of 9 years imprisonment, with a NPP of 4 years and 9 months. The sentence would commence on 12 January 2016 to take into account the period of 11 months and 9 days of pre-sentence custody. 4. The orders I propose are as follows: 1. Extend the time in which to bring an application for leave to appeal against sentence to 22 April 2020; 2. Grant leave to appeal; 3. Quash the sentence imposed on 21 December 2016 by Jeffreys DCJ; and, 4. In lieu, sentence the applicant to 9 years imprisonment, to date from 12 January 2016 and expiring on 11 January 2025; with a non-parole period of 4 years and 9 months, expiring on 11 October 2020, on which date the applicant will be eligible for parole. 1. IERACE J: I also agree with Wilson J. ********** Endnotes 1. The Statement of Facts, which the applicant had signed, stated that 20 consignments were intercepted; the sentencing judge gave the figure as 19 consignments, although there was no evidentiary basis for that conclusion, and no reason was given for the departure from the undisputed evidence. 2. The Statement of Facts established the total weight of cocaine in the intercepted consignments was 1200.2 grams. There was no evidentiary basis for the figure given by the sentencing judge and no reason was given by him for his conclusion. 3. The Statement of Facts gave the figure as 41; it is not clear why the sentencing judge concluded the number to be 42, there being no evidentiary basis for the conclusion. 4. The Sentencing Judge actually cited "The Queen v Lee", and referred to the judgment of "Justice Garling". It is apparent, however, that the judgment being referenced by him was that of Hoeben JA (as his Honour then was) in Lee v R. 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: 03 August 2020