Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Macallister (a pseudonym) v R [2020] NSWCCA 306 Hearing dates: 2 November 2020 Decision date: 25 November 2020 Before: Leeming JA at [1] Bellew J at [2] Wright J at [102] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed on the applicant in the District Court is quashed. (4) In lieu thereof, the applicant is sentenced to imprisonment for 7 years and 6 months commencing on 28 August 2016 and expiring on 27 February 2024. (5) Specify a non-parole period of 4 years and 7 months' imprisonment commencing on 28 August 2016 and expiring on 27 March 2021. (6) Pursuant to s16AC(2)(a) of the Crimes Act 1914 (Cth), state that the sentence is being reduced because the applicant has undertaken to co-operate with law enforcement agencies. (7) Pursuant to s16AC(2)(b) of the Crimes Act 1914 (Cth), specify that but for the reduction made on account of the applicant's undertaking to co-operate with law enforcement agencies, the sentence that would have been imposed would have been one of 12 years and 9 months' imprisonment. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Where applicant had assisted the authorities by making an induced statement outlining the circumstances of the importation and his involvement in it – Statement far more detailed than the facts tendered on sentence – Where Crown tendered the applicant's statement in the context of his assistance – Failure on the part of both the Crown and counsel then appearing for the offender to address the issue of the use to which the statement could be put by the sentencing judge – Where the sentencing judge made a series of findings based on the statement as to the applicant's role and his level of criminality in comparison with his co-offenders – Where those findings were adverse to the applicant – Error established CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – Objectively serious offending involving the importation of sixteen times the commercial quantity of cocaine – Where applicant pleaded guilty and expressed genuine contrition – Where applicant co-operated with law enforcement and provided a high level of assistance extending to promised future assistance – Where applicant had fears for his personal safety arising out of his assistance to authorities – Where applicant's criminality at a substantially higher level than either co-offender – Applicant re-sentenced CRIMINAL LAW – Practice and procedure – Use which can be made on sentence of an induced statement which has been made by an offender for the primary purpose of assisting the authorities – Necessity for both the Crown and defence to be clear at the time of tendering the statement as to the use to which it is intended that such statement be put – Observations as to the obligations on both the Crown and the defence to assist a sentencing judge – Observations as to the basis on which the sentence hearing should properly have been conducted Legislation Cited: Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Cases Cited: Govindaraju v R [2011] NSWCCA 255 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Gwardys v R [2019] NSWCCA 62 JMS v R [2010] NSWCCA 229 Klomfar v R [2019] NSWCCA 61 Lowe v The Queen (1984) 145 CLR 606; [1984] HCA 46 OS1 v R [2012] NSWCCA 102 PC v R [2020] NSWCCA 147 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373 R v Chen & Ors (2002) 130 A Crim R 300; [2002] NSWCCA 174 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Leroy [1984] 2 NSWLR 441 R v Lopez-Alonso (1996) 86 A Crim R 270 R v Nguyen; R v Pham [2010] 205 A Crim R 106; [2010] NSWCCA 238 R v NP [2003] NSWCCA 195 R v Pang (1999) 105 A Crim R 474; [1999] NSWCCA 4 R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Macallister (a pseudonym) – Applicant Regina – Respondent Representation: Counsel: M Ramage QC – Applicant B Anniwell – Respondent Solicitors: Jeffreys Lawyers – Applicant Commonwealth Director of Public Prosecutions – Respondent File Number(s): 2016/259082 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 December 2018 Before: Her Honour Judge Traill Judgment 1. LEEMING JA: I agree with Bellew J. 2. BELLEW J: INTRODUCTION 1. On 16 February 2018 [redacted] (the applicant) pleaded guilty in the District Court of NSW to an indictment in the following terms: On or about [redacted] at Sydney in the State of New South Wales, imported a substance, the substance being a border-controlled drug, namely cocaine, and the quantity imported being a commercial quantity. 1. That offence is contrary to s 307.1(1) of the Criminal Code 1995 (Cth) and carries a maximum penalty of life imprisonment and/or a fine of $1,350,000.00. 2. On 18 December 2018 the applicant was sentenced by her Honour Judge Traill to imprisonment for 8 years and 5 months, with a non-parole period of 5 years and 7 months. 3. The applicant now seeks leave to appeal against that sentence by notice of appeal dated 5 August 2020, an extension of time having been granted. The materials made available to the Court did not explain the delay in bringing the appeal. THE FACTS OF THE OFFENDING [1] 1. [redacted] 2. [redacted] 3. [redacted] 4. [redacted] 5. [redacted] 6. [redacted] 7. The weight of the white powder [redacted] was 42.7kgs. That yielded 32.1kgs of pure cocaine which had an estimated street value of between approximately $22,930,926.00 and $28,892,967.00. THE GROUNDS OF APPEAL Ground 1 – The sentencing judge erred in her use of evidence tendered to establish assistance as evidence to elevate the objective gravity of the offence. The applicant's statement to the Australian Federal Police 1. On 22 February 2018, the applicant made a lengthy statement to the Australian Federal Police in which he set out, in some considerable detail, the circumstances in which he had come to be involved in, and the specific acts that he had undertaken to facilitate, the importation. In both of those respects, but particularly in terms of the second, the information disclosed by the applicant in his statement went substantially beyond that which was contained in the statement of facts which was tendered on sentence. Paragraph 2 of the statement incorporated the applicant's acknowledgement that he had made it in the knowledge that, if it was tendered in evidence, he would be liable to prosecution if he had wilfully stated anything that he knew to be false or did not believe to be true. 2. The primary purpose of the applicant providing the statement was to assist the authorities. So much is evident from the following passage: [2] This statement is made on the basis that it will be used to enable the Australian Federal Police (AFP) to assess an offer of assistance by me and with a view to me possibly giving evidence in criminal proceedings in Australia. 1. Consistent with that, the applicant also signed an undertaking pursuant to s 16AC of the Crimes Act 1914 (Cth) (the Act) in which he undertook to (inter alia) "give full and frank evidence in accordance with [the statement]". 2. However, the statement also said the following as to its use: [3] Further, this statement is also made on the basis that, apart from the circumstances referred to in paragraph 2 above it will not be used in evidence in any criminal proceedings against me save and except for the offence I will plead guilty to arising from the charge laid against me by the AFP. (Emphasis added). The sentence proceedings 1. Before the sentencing judge, the Crown (who was not counsel who appeared for the Crown before this Court) tendered a number of documents without objection, [4] including the applicant's statement. [5] At the time of doing so, the Crown said the following: [6] ... I'm going to also provide you with a letter from the Australian Federal Police that sets out the level of assistance and I think everyone knows at the bar table has been put as high. I'm also going to provide you with a photocopy of a s 16AC undertaking and I've referred to it in the submissions that when your Honour does the assistance your Honour has got to give – your Honour will see you've got to do it in a certain way when your Honour comes to it. … 1. At that time, the Crown said nothing about the use which could be made, by the sentencing judge, of the statement. In circumstances where the statement was tendered in the context of the Crown making reference to the applicant's assistance to the authorities, and given what I have concluded was the primary purpose of the statement being made, it may be open to infer that it was the Crown's position that the statement went to the issue of assistance, and not beyond that. However, the Crown also provided the sentencing judge with written submissions which addressed the applicant's role in the importation by reference to what he had disclosed in the statement. 2. I interpolate at this point that all of these circumstances highlighted the need for the Crown to make his position clear, at the time of tendering the statement, as to how he submitted that the sentencing judge could use it. Specifically, there was a need for the Crown to make it clear whether he contended that such use was restricted to use for the purposes of assessing the applicant's assistance to the authorities, or whether he contended that it was open to the sentencing judge to use it for any purpose beyond that. It is regrettable that such matters were not addressed as they ought to have been. 3. After the statement was tendered, counsel then appearing for the applicant (who was not senior counsel who appeared for the applicant before this Court) similarly made no submission to the sentencing judge concerning the use which could be made of the statement, but made a series of submissions to the sentencing judge by reference to its contents. At one point, counsel said the following: [7] The offence itself he's pleaded guilty to, an offence that he was charged with initially albeit on different facts if you like, he's in possession of 31.1kgs of pure cocaine which was the amount in his room collectively between – that was in the possession of himself and formally [sic] that the gentleman that departed. It seems, your Honour, from what the offender has said to the police in his statement that the amount [redacted] as opposed to other people's [redacted] seems to have been if not a matter of happenstance just a matter of luck. It seems all the couriers provided it seems an identical – played an identical role. 1. Counsel then went on to say: [8] The accused's statement however says that not only – he made a lot of admissions against his own interests and explains what happens [redacted], specifically that he, as well as everybody else including the two related co-offenders, actually travelled to a location specifically to further the importation into Australia which was something that hitherto unknown to your Honour. My submission is that in terms of my client's role, that although the quantity of drugs is slightly excessive, slightly more in excess of the two related co-offenders, in the context of what's being alleged here that is a relatively insignificant feature, I submit. And even if it was to result in a more serious sentence or a more serious offence rather it would be of only limited significance, given the identical cognate roles played by all of them. 1. Counsel later returned to the issue of the applicant's role and made the following submission, again by reference to the contents of the statement: [9] His role, I submit, can't in any significant way be distinguished objectively from the two related co-offenders. They took custody of a quantity of drugs [redacted] following the directions of others, and maintained if you like actual custody of that quantum of prohibited drug, or border controlled drug, [redacted] for a period it seems of some weeks [redacted] Now [redacted] in terms of the degree of deliberation and the extent of the antecedent activity of the accused, we accept that there's a degree of deliberation but that was the case with the two related co-offenders as well. But essentially they merely took custody of this drug and stored it [redacted], hiding it from the authorities. 1. The Crown then responded by making submissions as to the applicant's role, again by reference to the contents of the statement. In particular, the Crown said: [10] And when your Honour reads in detail – and I'm sure your Honour will – the account given by [the applicant], what he did and why he did it and all those things, and the actions he took throughout the trip, [redacted] [11] [redacted]. His involvement, and your Honour clearly identified in the [redacted] judgment, you're not looking to put a name tag on it, you're looking to see what the person did, and you're looking to see what he did. I'm not suggesting that he is so significantly higher than [redacted] but my submission is that he's probably slightly higher than [redacted] in the actual actions he took to ensure that this went forward and went on. And your Honour we can only speculate in the sense perhaps, if one accepted what [redacted] and [redacted] said, and perhaps [redacted] not as much, they were there and if it happened it happened, they were along for the ride. 1. The Crown then said: [12] Of course, the Crown has the advantage that [the applicant] has – or the offender has told us everything so we've got a clearer picture of what's going on and where he fits into the pattern. 1. At the conclusion of submissions, the following exchange took place between counsel for the applicant and the sentencing judge: [13] COUNSEL: There's just one other thing I forgot to say that I should say. In terms of what an individual says in a statement, or what comes out in a letter of comfort, vis-à-vis, an individual's role, there is some authority to say that that cannot aggravate the offence that he is pleading guilty to. HER HONOUR: No I totally understand. 1. The Crown said nothing about that issue. The findings of the sentencing judge 1. In addressing the applicant's role in the importation, the sentencing judge said (inter alia) the following: [14] The offender performed an important hands-on role in the criminal enterprise. The Crown submitted that the offender travelled [redacted] and met with the organisers of the importation, agreeing to be part of a group of individuals tasked with the importation of a significant amount of cocaine. Then afterwards the offender travelled [redacted] through various countries until he arrived in Sydney. During the trip he took possession of the cocaine. The offender was part of the original booking arrangements. The drugs were sealed within suitcases [redacted] The offender was aware that he was involved in bringing drugs into Australia. He brought [redacted] the drugs with others. The drugs were stored [redacted] The offender was integral to the success of the drug importation and he undertook the importation for significant financial reward. The Crown submitted the offender played an essential role in the importation of cocaine into Australia, he was not merely a drug mule. It was submitted that the high value of the drugs entrusted to him indicates that he did indeed have an important role and was not just a courier. He was entrusted with the physical safekeeping of the drugs [redacted] He was in a position of some trust and responsibility, given the value of the drugs. … It was submitted on behalf of the offender that his role was no higher than that of a courier. It is necessary to set out what the offender did rather than to apply a label. The offender agreed to be part of a large scale drug importation. He was instrumental in bringing the drugs [redacted] and he kept the drugs [redacted] intending to [redacted] and bring them into Australia. I am satisfied that he knew that there were drugs in the bag as he placed them in there. I am satisfied that his role is greater than that of a courier and his role was central to the importation of border-controlled drugs. His role was pivotal and essential. His conduct directly resulted in the drugs being brought into the country. I am satisfied that he knew precisely what he was bringing into the country and knew the amount. I am also satisfied beyond reasonable doubt that the motive for the offender was financial gain. The offender stood to receive €100,000 for the importation. This was obviously his motivation for the offending. (Emphasis added in each case). 1. Her Honour later returned to the issue of the applicant's role and said the following: [15] The defence submitted that the role of the offender was that of a courier and that the three offenders played an identical role. I do not accept that. The defence submitted that the offender participated in the importation because he was offered a lot of money, being €100,000. It was conceded that the actions of the offender were pivotal in the importation. It was submitted that the offender was not a principle nor the architect, the broker or the owner of the drugs and that his actions were akin to a courier. I find that the offender was not a principal in the importation however he was close to those who were and his role was greater than that of [redacted] and [redacted] He was more involved and instrumental in bringing the drugs [redacted] [redacted] and holding them pending the importation into Australia. I also find that he stood to gain a more significant reward than that of [redacted] and [redacted] (Emphasis added). Submissions of the applicant 1. Senior counsel for the applicant submitted that each of the italicised statements within those parts of her Honour's remarks on sentence set out above constituted a finding which: 1. had, as its source, the applicant's statement and/or the letter provided by the investigating police setting out the value of his assistance; 2. was adverse to the applicant; 3. significantly elevated his role in the importation, and thus his level of criminality, over and above that which was disclosed in the statement of facts tendered by the Crown. 1. Senior counsel submitted that in these circumstances, it was evident that her Honour had used the applicant's statement in a way which was contrary to principle, and contrary to her Honour's apparent acknowledgement of the limits placed on the use of such material. Senior counsel submitted that whilst evidence of an offender's assistance could be relied upon by that offender to establish matters in his or her favour, it could not be used to support findings which were adverse. Submissions of the Crown 1. The Crown emphasised that the sentencing judge had expressly acknowledged her awareness of the fact that material going to the issue of assistance could not be used in a way which aggravated the objective criminality of the applicant's offending. It was submitted that in these circumstances, this Court should not readily infer that the sentencing judge had acted in a way which was contrary to principle. 2. The Crown further submitted that whether any restriction is placed upon the use of evidence of this kind will depend on the circumstances of the case. It was submitted that it was clear from what had been put by the parties in the course of the sentence hearing that both the Crown and counsel for the applicant had relied on the statement, and had intended that it be used by the sentencing judge to facilitate her assessment of: 1. the applicant's role, particularly when compared with those of [redacted] and [redacted]; and 2. the applicant's assistance to the authorities. 1. The Crown submitted that in these circumstances it had been permissible for the sentencing judge to take the contents of the statement into account to reach the findings that she did. The Crown further submitted that the first three of the italicised parts of her Honour's remarks did not represent factual findings in any event, but were properly regarded as statements summarising the submissions which had been made by the Crown about the applicant's role. 2. The Crown further submitted that when the sentencing remarks were read fairly and as a whole, it was open to conclude that her Honour's findings as to the applicant's role, although perhaps fortified by the information contained in his statement, had been reached independently of such information, and had been based upon the references in the statement of facts to: 1. the applicant's promised reward; and 2. the quantity of cocaine imported. 1. In carefully advancing these submissions, the Crown properly conceded that the circumstances which evolved at the sentencing hearing regarding the use of the statement were "somewhat opaque". Specifically, the Crown conceded that there was nothing put to the sentencing judge by either party which sought to define how the statement could be used. 2. In the alternative, the Crown submitted that if error was established, such error was not material to the outcome, and that because the sentence imposed was otherwise appropriate this Court should decline to intervene. CONSIDERATION 1. In addressing this ground it is firstly necessary to make some observations about the conduct of the sentence hearing. 2. There was a clear obligation on the Crown, at the time of tendering the applicant's statement, to specifically articulate to the sentencing judge his position as to the use to which the statement could be put for the purposes of sentence, and to identify any limitation(s) sought to be imposed on such use. In my view, the Crown did not meet that obligation. 3. The Crown's reference to the applicant's assistance when tendering the statement tended to suggest, in keeping with what I am satisfied was the primary purpose of the statement, that the Crown intended that its use be limited to assessing the applicant's assistance. Nothing said by the Crown at that point suggested, in any way, that it was intended that the use of the statement should go beyond that. However, that was contradicted by the fact that the Crown also provided the sentencing judge with written submissions which advanced a series of propositions as to the applicant's role based upon what the applicant had disclosed in his statement, and in the absence of any other evidence of those matters. All of these circumstances simply highlighted the need for the Crown to make its position abundantly clear from the outset. 4. Further in my view, there was also an obligation upon counsel for the applicant to make his position clear. That obligation was similarly not met. In the absence of addressing the issue, counsel proceeded to make a series of submissions to her Honour as to the applicant's role. He did so by reference to, and seemingly in reliance upon, the applicant's statement. 5. The Crown then responded by taking the same course as counsel for the applicant, and making oral submissions to the sentencing judge, by reference to the statement, as to the applicant's role in the importation. The Crown took that course in circumstances where, as I have noted, he had not suggested that the statement could be used for that purpose at the time of tendering it. 6. The somewhat unsatisfactory position which had developed was then further complicated by the submission made by counsel for the applicant at the conclusion of the proceedings that the statement could not be used "to aggravate the offence". That submission was one which her Honour clearly accepted, and with which the Crown apparently took no issue. 7. Assuming the transcript of that exchange is accurate, it is not entirely clear what counsel intended to convey by that submission. I am left to conclude that his position was that the statement was not to be used in a way which was adverse to the applicant, and specifically was not to be used to find that the applicant's offending was aggravated by the matters that he had disclosed (and which were otherwise not known to the police) so as to support a conclusion that his role was higher than that of either of his co-offenders. The Crown's silence following the exchange at the conclusion of the proceedings suggests that the Crown accepted that to be the position. This was so, notwithstanding that such a position was arguably inconsistent with the Crown's earlier submissions. 8. In all of this, neither the Crown nor counsel for the applicant addressed the contents of paragraph (4) of the statement which referred to the use to which it could be put and which contemplated that it would: 1. be used to enable the authorities to assess his assistance; and 2. not be used in any criminal proceedings against the applicant save for: 1. proceedings in which he was prosecuted for making a false statement; and 2. the present proceedings. 1. Whilst the drafting of the statement was imprecise in that second respect, I am satisfied, given the primary purpose for which the statement was made, that as far as the applicant was concerned, the only use to which it could be put in his sentence proceedings was to assess his assistance. Any other construction would operate unfairly towards the applicant and would not, in my view, reflect his intention. 2. Against this background, and in circumstances where the sentencing judge did not receive the level of assistance which she might reasonably have expected, her Honour proceeded to make a number of findings. An analysis of those findings is necessary for the purposes of determining this ground. 3. Her Honour concluded that the applicant was entrusted with the physical safe keeping of the drugs [redacted]. That was uncontroversial, and was capable of being inferred [redacted]. 4. However, her Honour also concluded that the applicant: 1. took possession of the cocaine during the trip; and 2. brought the cocaine [redacted]. 1. Each of those conclusions was prefaced by a reference to the Crown's written submissions. [16] That raises the question whether what her Honour said is properly regarded as a series of findings on the one hand, or a summary of the Crown's submissions on the other. Given that her Honour did not engage in any further analysis of those matters in her remarks, I am left to conclude that they constitute findings. Accepting that to be the case, there was no reference in the statement of facts to either of those matters. Each of those findings had, as its source, the applicant's statement. 2. Such findings were then used by the sentencing judge as part of the basis on which to further find that the applicant: 1. was integral to the success of the importation; 2. was in a position of some trust and responsibility; 3. played a role which was greater than that of a courier; 4. played a role which was central, pivotal and essential; and 5. was not a principal in the importation, but was close to those who were. 1. It is clear that the sentencing judge used the applicant's statement to reach those findings. That use was obviously adverse to the applicant and was of a kind to which, I am satisfied, he did not acquiesce. 2. The principles which govern the use that can be made of material of this kind were set out by this Court in R v Bourchas in the following terms: [17] [99] To draw together the preceding discussion, in my opinion the following may be said of situations such as that arising in the sentencing of the applicant. 1. The offender carries the burden of proving assistance to the authorities, as a matter going to mitigation. 2. The Crown should assist the offender in the discharge of that burden. 3. The assistance may extend to the Crown tendering the evidence of assistance to the authorities, but the Crown should not do so over the objection of the offender. 4. A statement made by way of assistance to the authorities on an undertaking that the information in it will not be used against the offender may properly be admitted on the basis that the information in it will not be used against the offender, and with its use restricted accordingly. 5. When the offender tenders a statement made by way of assistance to the authorities, or accepts the Crown's assistance in tendering such a statement, it is prudent that the basis of the tender be agreed and stated showing any restriction on the use of the information in the statement; if there is disagreement, a ruling can be made in the normal way. 6. In the absence of an agreed basis of tender or a ruling at the time of admission, whether use of a statement made by way of assistance to the authorities is restricted will depend on the circumstances, but normally the information in the statement cannot be used against the offender. 1. The propositions in (5) and (6) have obvious significance in the present case for a number of reasons. 2. To begin with, the prudent course referred to by Giles JA was not adopted at the applicant's sentence hearing. There was no agreement, at the time of the statement being tendered, as to the extent of its use. 3. Further, as Giles JA pointed out, whether the use of a statement of this kind is restricted will depend on the circumstances but that normally, the information contained in the statement cannot be used against the offender who made it. The circumstances of the present case included the following: 1. the statement was made by the applicant for the primary purpose of assisting police; 2. the applicant's apparent understanding was that the only use to which the statement could be put in his sentence proceedings was to assess his assistance; 3. neither party articulated a clear position to the sentencing judge as to how the statement could be used; 4. counsel for the applicant, having made submissions by reference to the statement, appeared to argue that the statement could not be used to make findings which aggravated the applicant's offending, and which supported a conclusion that his criminality was greater than [redacted] and [redacted]; 5. the position in (iv) was apparently accepted by the Crown, even though the Crown had proceeded in a way which was contrary to such position; 6. the position in (iv) was expressly acknowledged by the sentencing judge; 7. the sentencing judge then used the contents of the statement to make a series of findings as to the applicant's acts, role and criminality which went substantially beyond, and which were unsupported by, the statement of facts, and which were obviously adverse to the applicant. 1. All of these circumstances fortify my view that error has been established. 2. In careful submissions, the Crown who appeared in this Court emphasised that a conclusion that the sentencing judge had erred in her use of the statement should not readily be made in circumstances where her Honour had specifically acknowledged her understanding of the relevant principles and had, in doing so, indicated that she would not act other than in accordance with them. [18] Whilst I accept that in such circumstances the Court should be slow to conclude that there was an error, I am driven to that conclusion for the reasons I have set out. 3. The Crown also emphasised the fact that counsel appearing for the applicant on sentence had himself used the statement as a basis of his submissions. Whilst that is so, and although his final submission to the sentencing judge as to the use of the statement was not entirely clear, I am satisfied that it was not counsel's intention, nor was it the intention of the applicant himself, to agree to the statement being used in the way that her Honour ultimately did. 4. I am also unable to accept the Crown's submission that her Honour's findings as to the applicant's role were otherwise independently supported by the evidence of the quantity of the cocaine which had been imported, and the significant amount which had been promised to the applicant for his role in the importation, both of which were matters set out in the statement of facts. I would accept, consistent with a concession made by senior counsel for the applicant before this Court, that such factors support a finding that the applicant's role was greater than that of his co-offenders. However, the fact of a promised reward, and the fact that a large quantity of cocaine had been imported, are of themselves incapable of (for example) sustaining an inference that the applicant brought the drugs [redacted], that being one of the findings made by her Honour. Such a finding could only have been reached on the basis of the applicant's statement. 5. Finally, I am unable to accept the Crown's submission that the error is immaterial. On the contrary, the error went to a fundamentally important issue on the applicant's sentence. 6. For all of these reasons, this ground is made out. In these circumstances, it is not necessary for me to consider the remaining grounds of appeal upon which senior counsel for the applicant sought to rely. The Court must now re-sentence the applicant in the fresh exercise of the sentencing discretion. However, to the extent that submissions were advanced by the parties in relation to those remaining grounds, I have taken those submissions into account to the extent that they are relevant to the re-sentencing exercise. 7. Before leaving this ground I wish to make some final observations. The last of the matters referred to by Giles JA in Bourchas, along with the circumstances of the present case, highlight the fact that any sentence hearing which involves the tender of a statement of this kind should not be permitted to proceed as it did in this case. There is an obligation on both the Crown, as well as upon counsel for an offender, to properly assist a sentencing judge by making their respective positions abundantly clear, at the time that any such statement is tendered, as to the use to which it can be put. If there is an agreement between the parties as to such use, the matter can proceed on that basis. If there is an issue, the sentencing judge will have the opportunity, with the benefit of submissions from each party, to resolve it. In either case, the difficulties which arose in the present case, and which have given rise to this ground of appeal, are likely to be avoided. RE-SENTENCE 1. Section 16A(2) of the Act sets out a non-exhaustive list of matters to be taken into account on sentence, to the extent that such matters are relevant and known to the Court. I turn to consider those matters in the present case. In doing so, I make it clear that I have used the applicant's statement and related material solely for the purpose of assessing the issue of his assistance to the authorities, and not otherwise. Section 16A (2)(a) – The nature and circumstances of the offence Section 16A(2)(k) – The need for adequate punishment 1. I have already set out the nature and circumstances of the applicant's offending. Any assessment of such circumstances necessarily involves a determination of the objective seriousness of the offending, and the role played by the applicant. 2. The objective seriousness of the applicant's offending is reflected, at least in part, by the fact that the Parliament has prescribed a maximum penalty of life imprisonment. The commercial quantity of cocaine is 2kgs. The amount of pure cocaine imported into Australia by the applicant was 32.1kgs, some 16 times the commercial quantity. Although the weight of the drug imported is not determinative of the sentence which is to be imposed, it remains a relevant factor. [19] That said, I am not able to be satisfied beyond reasonable doubt that the applicant knew of the weight of the drug which he imported. 3. In Gwardys v R [20] I observed that an assessment of the criminality of offending of this nature must be undertaken by considering the offender's involvement in the steps which were taken to effect the importation. It is the applicant's criminality which must be assessed and, rather than ascribing a label to describe the role he played, the relevant enquiry must centre upon what he actually did. [21] The fact that another person may be characterised as the "mastermind" (for want of a better term) of the venture does not mean that the applicant, who was responsible for effecting the actual importation into Australia, is properly described as having only a middle (or indeed lower) level of responsibility. [22] 4. Put simply, the applicant imported a quantity of prohibited drug which was 16 times the commercial quantity prescribed by the Parliament, on the promise of a significant monetary reward. In doing so, he facilitated and promoted international drug trafficking. Even if there were other persons in the relevant hierarchy who occupied more senior positions, that does not mean that the applicant's role was insignificant. The fundamental importance of the applicant's role is reflected in the fact that, absent the applicant doing what he did, the importation could not have been effected. [23] Section 16A(2)(f) – Contrition 1. The applicant did not give sworn evidence on sentence. However, in an affidavit read for the purposes of re-sentence he expressed his shame at being involved in the offending, and acknowledged an awareness of the evil caused by the infiltration of drugs into the community. I accept that the applicant's expressed contrition is genuine. It is consistent with his pleas of guilty, and his assistance to the authorities. Section 16A(2)(g) – The pleas of guilty Section 16A(2)(h) – Co-operation with law enforcement agencies 1. The applicant was arrested [redacted] and entered a plea of guilty in the District Court [redacted] shortly prior to his scheduled trial. It is evident that for some period leading up to that time, the applicant had been assisting the authorities, from which it must have been apparent that a plea of guilty was likely. However in all the circumstances, I do not consider that this has any material effect on the discount which should be applied to reflect the utilitarian value of the plea. The fact remains that the plea was entered at a late stage, shortly before the applicant's trial. 2. [redacted] 3. [redacted] [24] 4. [redacted] 1. [redacted] 2. [redacted] 3. [redacted] 4. [redacted] 1. [redacted] 2. [redacted] 3. Previous decisions of this Court support the proposition that unless the circumstances are exceptional, a combined discount to reflect an offender's plea of guilty, and his or her assistance to authorities, should not normally exceed 50%. [25] It has also been observed that a combined discount of more than 40% should be granted very exceptionally (if at all) in cases where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than those applicable to the general prison population. [26] 4. All of that said, the assessment of the discount remains a matter for the Court's discretion. Because the exercise of that discretion is informed by the facts and circumstances of each individual case, there have been occasions on which this Court has applied combined discounts of more than 50%. [27] 5. [redacted] 6. There is nothing more the applicant could have done in terms of his assistance to the authorities, both here and overseas. Importantly, his assistance went well beyond the boundaries surrounding the offence with which he was charged. 7. In the circumstances, I consider that a combined discount of 50% is appropriate, made up of: 1. 15% referable to the utilitarian value of the applicant's plea of guilty; and 2. 35% attributable to the applicant's assistance. 1. Of that 35%, I would apportion 25% to past assistance, and 10% to promised future assistance. Section 16A(2)(j) – Personal deterrence 1. There is nothing in the evidence which would suggest that there is any particular need for personal deterrence. The general tenor of the applicant's affidavit leads me to the view that he is unlikely to re-offend. Section 16A(2)(ja) – General deterrence 1. The difficulty of detecting offending of this nature, and the adverse social consequences that follow in the event that the offending is carried out successfully, mean that significant weight must be given to general deterrence on sentence. [28] Any sentence imposed for offending of this nature must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are to be balanced against the inevitability of severe punishment. [29] Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise, the interests of general deterrence are not served. [30] Section 16A(2)(m) – Character, antecedents, age, means and physical or mental condition of the applicant 1. The majority of the material going to these matters is drawn from the applicant's affidavit. 2. The applicant [redacted]. He does not suffer from any significant health issues. He has no prior convictions of any kind and is to be treated as a person of good character. Whilst I have had regard to that fact, it is one to be given limited weight. Good character is not an unusual attribute of persons who are involved in drug importation. [31] 3. The applicant has made specific reference to difficulties that he has experienced in custody, arising principally from the fact that he is a foreign national who speaks very little English. He has had no visits from any family member since being taken into custody more than four years ago. However, the fact that the applicant is a foreign national serving his sentence in another country, and thus away from his family, is a matter to which limited weight can be attached. [32] Section 16A(n) – Prospects of rehabilitation 1. The applicant's affidavit indicates that he has used his time in custody productively. He has not incurred any custodial infringements. He is held in a minimum security facility and appears to be regarded as trustworthy. He has attended classes to improve his English language skills, in circumstances where those classes are not compulsory. His prospects of rehabilitation are positive. Parity considerations 1. Consistency in the punishment of offences against the criminal law is a reflection of the notion of equal justice. It finds its expression in the parity principle which requires that like offenders should be treated in a like manner. That principle also allows for different sentences to be imposed on like offenders, to reflect differing degrees of culpability and/or differing circumstances. [33] The same principle recognises that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance arising from a sentence imposed on a co-offender. 2. Application of the parity principle is not simply a matter of imposing different sentences on co-offenders for the same offence. Rather, it is a question of due proportion being structured between such sentences. That proportion must be determined having regard to the different circumstances of the co-offenders, and the different degrees of criminality. [34] In the present case, the parity principle requires consideration of the sentences imposed on each of [redacted] and [redacted] by the same sentencing judge who sentenced the applicant. 3. [redacted] pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug and was sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 4 years and 6 months. The amount of cocaine imported by [redacted] was 23.864kg with an average purity of 81.46%, yielding 19.43kg of pure cocaine. [35] The sentencing judge applied a discount of 25% to reflect [redacted] plea of guilty. [36] The starting point of the sentence was therefore one of 10 years' imprisonment. 4. Her Honour found that [redacted] had agreed to commit the offence in order to be able to repay, or to have "forgiven", a debt of $20,000.00. [37] Her Honour found that [redacted] role was directed towards physically importing the cocaine, one which her Honour considered to be "central ……. pivotal and essential". [38] Her Honour also had regard to [redacted] "strong subjective factors" which included her youth and her ill health. [39] Her Honour also took into account [redacted] contrition and remorse, her prior good character, the fact that she was distanced from her family, and her work history. [40] 5. [redacted] pleaded guilty to the same offence as [redacted] (in respect of the same quantity of cocaine) and was sentenced to imprisonment for 8 years with a non-parole period of 4 years and 9 months. Her Honour applied a discount of 15% to reflect the utilitarian value of [redacted] plea of guilty. [41] Her Honour's starting point for the sentence imposed on [redacted] was 9 years' and 6 months' imprisonment, to which she applied a discount of 15%. 6. Her Honour found that [redacted] was "integral to the success of a significant drug importation" [42] and that her role was to "assist in the disembarkation of the drugs into the country by [redacted] and draw suspicion away from [redacted] and others". [43] Her Honour found that in return for her participation, [redacted] received [redacted] and an amount of €4,000 to assist her on her return [redacted]. The sentencing judge concluded that [redacted] role was "ultimately less" than that of [redacted]. 7. Her Honour found that [redacted] had expressed genuine contrition and remorse, had used her time in custody usefully, had good prospects of rehabilitation, and was unlikely to reoffend. [44] 8. Generally speaking there is little to distinguish between her Honour's findings in respect of the subjective circumstances of each of [redacted] and [redacted] and my findings in respect of the subjective circumstances of the applicant. Similarly, there is little difference between her Honour's findings as to the role of [redacted] and [redacted] and my findings as to the role of the applicant. However that issue is viewed, the conclusion reached in respect of all three offenders is that they facilitated the importation of significant amounts of cocaine. 9. There are, however, three matters which, in my view, increase the seriousness of the applicant's offending to a level over and above that of [redacted] and [redacted]. 10. Firstly, and whilst I again acknowledge that the weight of the drug is not determinative, the fact remains that the quantity of pure cocaine imported by the applicant was substantially higher, and had a commensurately greater street value, than that imported by [redacted] and [redacted]. 11. Secondly, the reward which was promised to the applicant of €100,000 was substantially in excess of that derived by either [redacted] or [redacted]. 12. Thirdly, although the role of the applicant might be broadly viewed as being same as that of [redacted] and [redacted] in the sense that all three effected the importation of a large amount of a border controlled drug, the significantly greater reward promised to the applicant supports the conclusion that in performing his role, he [redacted]. 13. It follows that in accordance with the parity principle, and in order to reflect the difference in objective criminality between the applicant on the one hand and [redacted] and [redacted] on the other, a substantially higher starting point must be adopted in terms of the applicant's sentence. That said, the totality of the discount to which the applicant is entitled and which will be applied to his sentence is substantially greater than that which was applied in sentencing [redacted] and [redacted]. CONCLUSION AND ORDERS 1. I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant in the District Court is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for 7 years and 6 months commencing on 28 August 2016 and expiring on 27 February 2024. 5. I specify and non-parole period of 4 years and 7 months' imprisonment commencing on 28 August 2016 and expiring on 27 March 2021. 6. Pursuant to s16AC(2)(a) of the Crimes Act 1914 (Cth), I state that the sentence is being reduced because the applicant has undertaken to co-operate with law enforcement agencies. 7. Pursuant to s16AC(2)(b) of the Crimes Act 1914 (Cth), I specify that but for the reduction made on account of the applicant's undertaking to co-operate with law enforcement agencies, the sentence that would have been imposed would have been one of 12 years and 9 months' imprisonment. 1. WRIGHT J: I agree with Bellew J. ********** Endnotes 1. Sentencing remarks commencing at AB77; Statement of facts commencing at AB96. 2. At [4]. 3. At [4]. 4. AB12-13. 5. Exhibit B. 6. AB12.36-AB12.43. 7. AB16.4-AB16.13. 8. AB16.20-AB16.30. 9. AB17.23-AB17.33. 10. AB22.16-AB22.31. 11. [redacted] 12. AB23.1-AB23.4. 13. AB30.33-AB30.38. 14. AB83.14-AB85.3. 15. AB86.6-AB86.7. 16. MFI1 at [16] and following. 17. (2002) 133 A Crim R 413; [2002] NSWCCA 373 at [99] per Giles JA (Levine and Sperling JJ agreeing); see also Govindaraju v R [2011] NSWCCA 255 at [66] per Hall J (Bathurst CJ and Harrison J agreeing). 18. See JMS v R [2010] NSWCCA 229 at [30]. 19. Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64]. 20. [2019] NSWCCA 62 at [40]-[42]. 21. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54. 22. R v Nguyen; R v Pham [2010] 205 A Crim R 106; [2010] NSWCCA 238 at [72] per Johnson J (Macfarlan JA and RA Hulme J agreeing). 23. Gwardys at [43]. 24. [redacted]. 25. PC v R [2020] NSWCCA 147 at [70]-[71] per Hoeben CJ at CL, Bathurst CJ and Harrison J agreeing and the authorities cited therein. 26. PC at [71]. 27. See for example R v NP [2003] NSWCCA 195; OS1 v R [2012] NSWCCA 102. 28. Wong v The Queen; Leung v The Queen at [64]. 29. R v Chen & Ors (2002) 130 A Crim R 300; [2002] NSWCCA 174 at [286]; R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 at [114]. 30. R v Pang (1999) 105 A Crim R 474; [1999] NSWCCA 4 at [6]. 31. See for example R v Leroy [1984] 2 NSWLR 441; R v Lopez-Alonso (1996) 86 A Crim R 270. 32. See for example R v Ferrer-Esis (1991) 55 A Crim R 231 at 239 per Hunt J (as his Honour then was) Gleeson CJ and Lee CJ at CL agreeing. 33. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]. 34. Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ; Lowe v The Queen (1984) 145 CLR 606; [1984] HCA 46 at 610-611 per Mason J (as his Honour then was). 35. AB116. 36. AB123. 37. AB120. 38. AB126. 39. AB130. 40. AB130. 41. AB145. 42. AB149. 43. AB151. 44. AB152. Amendments 23 March 2021 - Parts of judgment redacted pursuant to non-publication orders made on 17 March 2021. 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: 23 March 2021