Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Govender v R [2024] NSWCCA 179 Hearing dates: 28 August 2024 Date of orders: 23 September 2024 Decision date: 23 September 2024 Before: Fagan J at [1]; N Adams J at [2]; Faulkner J at [96]. Decision: (1) The time for bringing this appeal is extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). (2) Leave to appeal is granted. (3) The appeal is dismissed. Catchwords: CRIME – Appeals – Appeal against sentence – application for leave to appeal out of time – manifest excess – old age and poor health of offender – whether sentencing judge erred in giving personal deterrence prominence alongside finding that offender unlikely to reoffend – whether sufficient weight given to onerous conditions of custody given offender's deteriorating health and age – whether appropriate approach taken regarding parity with co-offenders – where non-parole period only 55% of head sentence to reflect individual circumstances of the offender – sentence not manifestly excessive – extension of time granted – appeal dismissed Legislation Cited: Crimes Act 1912 (Cth), s 16A(2) Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1), 311.1(1)(g) Supreme Court (Criminal Appeal) Rules 2021, r 3.5(5) Cases Cited: Holyoak v R (1995) A Crim R 502 Liu v R [2023] NSWCCA 30 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Category: Principal judgment Parties: Thumbarian Govender (Applicant) Rex (Respondent) Representation: Counsel: A Parsons (Applicant) R Ranken (Respondent) Solicitors: Hunter and Braddon Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2017/00037450 Publication restriction: Nil. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 13 November 2024 Before: Arnott SC DCJ File Number(s): 2017/00037450 JUDGMENT 1. FAGAN J: I agree with Adams J. Because of the advanced age at which the applicant committed his offence, the principal competing considerations that the learned sentencing judge had to resolve were the objective gravity of the applicant's involvement in a very large scale drug importation and, on the other hand, his age-related infirmity, his specific and worsening medical disorders and his expectation of very little life remaining to him after release. Upon all the considerations that the sentencing judge properly and carefully took into account it cannot be said that a head sentence of 20 years with a non-parole period fixed at 55% of that term was unreasonable or plainly unjust. 2. N ADAMS J: By notice of appeal filed on 2 July 2024, the applicant seeks leave to appeal against the sentence of imprisonment imposed upon him by his Honour Judge Arnott SC in the District Court at Sydney on 13 November 2020. The applicant was sentenced in relation to attempting to possess a commercial quantity of unlawfully imported border controlled drugs, namely, 198.3 kg of pure cocaine and 80.1 kg of methamphetamine. 3. The offence was brought contrary to ss 307.5(1), 311.1(1)(g) and 11.1(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of life imprisonment. 4. The applicant pleaded not guilty to the offences but was found guilty by a jury of 12 on 7 March 2020 following his trial. 5. The applicant was a 75-year-old resident of South Africa at the time of the offending. By the time of his sentence, he was one day off turning 79 years old. He was of prior good character. He continued to deny his guilt at his proceedings on sentence so there was no explanation before the court for why an elderly man in poor (age related) health would become involved in such serious criminality for the first time in his life in a foreign country when he did. 6. The applicant's three co-offenders were Tony Nasser, Imad Al Qatrani and Shalesh Narayan (who was a Fijian Indian whose nickname was "Fij"). Mr Nasser and Mr Narayan had been sentenced by the time of the applicant's trial and Mr Nasser gave evidence at the applicant's trial. The parity principle loomed large in the applicant's sentencing process. 7. As the sentencing judge observed, the process of sentencing an offender of advanced age and suffering from ill health posed "particular challenges". His Honour imposed a sentence of imprisonment of 20 years commencing on 5 February 2017 and expiring on 4 February 2037. His Honour had regard to the applicant's age and health by nominating a non-parole period of 11 years imprisonment which was 55% of the head sentence. Accordingly, the applicant will be eligible for release to parole on 4 February 2028. 8. The sole ground of appeal is that the sentence imposed is manifestly excessive. Extension of time 1. The applicant was sentenced on 13 November 2020. The notice of intention to appeal (NIA) was filed on 2 July 2024, more than three and a half years after the sentence was imposed. 2. A NIA against conviction was filed on 19 May 2020. An Amended NIA (including an application for leave to appeal against the sentence) was filed on 30 November 2020, but it expired on 29 November 2021. The applicant did not seek any extension of time prior to 2 July 2024. 3. The reason for the delay in filing the NIA was that after Legal Aid NSW refused the applicant legal aid on merit, his family raised funds to bring an appeal privately and that took some time. 4. The Crown opposed an extension of time unless the court found merit in the proposed appeal. In the event the court grants an extension of time, the Crown submitted that the court would refuse leave to appeal because the appeal lacks merit. Factual background 1. The applicant was sentenced following a trial and it fell to the sentencing judge to find the facts for the purposes of sentencing. There were numerous factual disputes on sentence. This meant that his Honour was required to provide detailed reasons as to why he found the facts that he did. There was no challenge to any of the factual findings made by his Honour on this appeal, so I do not consider it necessary to extract the competing submissions and reasons as to why his Honour found each of the facts he did. Rather, I will confine the summary of the facts to those upon which the applicant was sentenced. 2. The applicant travelled to Australia in late August to early September 2016 and spent two weeks here. 3. On 3 September 2016, the applicant travelled from Newcastle to Melbourne with Imad Al Qatrani for one day on a domestic flight. They were met at Melbourne Airport by Tony Nasser who drove them to Sunshine North where they had a meeting in a car park with two men from Worldwide Freight about the arrival of mining machinery from South Africa. The discussion included whether there was anything to worry about; that the "dogs wouldn't pick it up"; that "there would be no problem with X-rays"; and the division of payment. Tony Nasser gave evidence that although he did not remember the applicant joining in the discussion, he did have a memory of the applicant being in the vicinity and having a document which appeared to him to be some sort of blueprint for a piece of machinery. His Honour was satisfied that the applicant was knowingly involved in the importation from this stage. 4. After this meeting, Nasser set about organising the importation. This included engaging a licenced customs broker and supplying documentation including the Bill of Lading and a forged letter of authority from the consignee. 5. The applicant was again in Australia between 2 November 2016 and 19 December 2016. 6. On 5 December 2016, a large metal container that had originated from Johannesburg arrived in Melbourne on board a sea cargo vessel from a South African Port. The consignment contained six industrial machinery items, one of which was a mining ore extractor and another of which was a conveyer type of machinery described as a magnetic separator. The consignee was Hard Rock Coal Mining of Sunshine, Victoria, with the notifying party being Tony Nasser. 7. On 14 and 15 December 2016, the pieces of machinery were inspected by members of Australian Border Force. Drugs were detected inside the magnetic separator and the Australian Federal Police (AFP) became involved. 8. On 16 December 2016, AFP officers discovered 254 blocks of compressed powder and 104 bags of crystalline substance hidden inside the magnetic separator in a cavity of the machine with granulised charcoal. The 254 blocks of compressed powder were tested and found to be cocaine and the 104 bags were tested and found to be methamphetamine. The 254 blocks of compressed powder had a gross weight of 254 kg. The powder comprised cocaine with a purity of between 73.4% and 83.1%, or about 198.3 kg of pure cocaine. The crystalline substance comprised methamphetamine with a purity of between 47.2% and 80.3%, or about 80.1 kg of pure methamphetamine. The prescribed commercial quantity for cocaine is 2 kg and for methamphetamine it is 750 g. 9. The wholesale value of the shipment was about $66 million, and the street value was estimated to be about $188 million. The wholesale value of the imported cocaine was estimated to be over $52 million, and the street value estimated to be over $132 million. The wholesale value of the imported methamphetamine was estimated to be over $14 million, and the street value over $56 million. 10. The drugs were wrapped into packages which broadly fell into three categories: those with red tape on them, the box of cocaine which had no tape on it and those containing white powder (methamphetamine). 11. The AFP removed the cocaine and methamphetamine that was secreted in the magnetic separator and substituted the drugs with house bricks so that the magnetic separator had the same weight, reassembled the item of machinery and the wooden box in which it was contained in the original condition and repacked it into the container for a controlled delivery. The AFP then returned it to the holding yard. 12. From this time, the police had Tony Nasser under surveillance. Nasser had organised the transportation of the container within Melbourne and for it ultimately to be transported to Sydney by rail. He organised for the magnetic separator to be placed in a brown shipping container and the other pieces of machinery to be placed in a white shipping container. Both containers were sent to Sydney by rail but on different dates. 13. Around 11 or 12 January 2017, the brown shipping container arrived at the Chullora rail yard in Sydney. It was picked up by Shalesh Narayan and transported by him to the Riverstone Business Park. 14. On 15 January 2017, Tony Nasser met Imad Al Qatrani in Punchbowl who paid Nasser the remainder of the cash for his involvement in the importation (he was paid a smaller amount previously). 15. On 20 January 2017, the applicant exchanged messages with Al Qatrani via WhatsApp concerning accessing the drugs in the magnetic separator in the forthcoming week. These were downloaded by the police from the applicant's mobile phone. In these messages, the applicant told Al Qatrani, "Mate, you are rushing it...they want it done next week" and "The paper man is still here, if you take it out it will be there 4 a week lying around, give fidge the rest 30 to keep him quiet". (A reference to giving "Fij" Narayan $30,000). Police surveillance observed Al Qatrani meeting Narayan the next day although the surveillance evidence did not extend to a sighting of Al Qatrani handing anything to Narayan. 16. In another message the applicant told Al Qatrani, "There is 3 types put them according to match. pse [please] don't mix them as they will come back as not their item, make sure of that...". This is consistent with the fact that the different drugs were packaged into three broad categories. This particular message from the applicant continued stating, "remove the belt with slack adj [adjust] loosening, the top is glued down tight, remove all screws first then lift, when that it out, another lid make loose and lift...". This description of how to access the drugs hidden in the magnetic separator was exactly the procedure the AFP needed to adopt when deconstructing the magnetic separator to see what was hidden inside it. 17. On 27 January 2017, the applicant arrived in Sydney on a flight from South Africa. He was met at the airport by Al Qatrani. The applicant stayed with Al Qatrani during his stay in Australia. 18. On 29 January 2017, the applicant and Al Qatrani drove together to Riverstone Business Park where they met Narayan. Narayan moved containers around with a forklift to enable access to the brown container. The applicant and Al Qatrani then opened the doors of the brown container, pulled apart the packing case containing the magnetic separator and then disassembled the magnetic separator to access drugs they expected to be secreted inside the machinery, only to find it contained house bricks. 19. On 31 January 2017, (two days after he had gone to Riverstone Business Park), the applicant used Al Qatrani's phone to call his wife in South Africa. In that call, the applicant told his wife that "things are not going right here...they didn't send all the right furniture" and that he "just came for the free ride. Looks like I'm going back with no pay". He said he would try to move his plane ticket so he could return home sooner than planned. His Honour was satisfied that this coded call was the applicant telling his wife that there were no drugs in the magnetic separator, and he was returning home without payment. 20. On 5 February 2017, the applicant was arrested at Sydney International Airport while he was checking in for his flight to South Africa. Amongst the items in his possession were two phones - his iPhone and a Blackberry phone. The Blackberry phone was password protected. He also had an envelope containing $2,000 and a note written on the front "We love you Imad and Young" (Mr Al Qatrani and his wife). 21. When the applicant was interviewed by the police, he told them that a person called "Ivan" gave him the Blackberry phone so that he could correspond with him about the contents of the container. The applicant gave evidence during the trial that he had lied to the police about this and proffered an innocent explanation as to why he had the Blackberry phone when he was arrested. 22. Call charge records recorded frequent telephone contact between the applicant, Al Qatrani, and a man referred to in the evidence as Evaan Serbian in the months leading up to the applicant coming to Australia to access the illicit drugs in the magnetic separator. There was frequent telephone contact between the applicant and Al Qatrani and Serbian when the applicant left Australia on 5 September 2016 and returned to South Africa. There were no calls with Al Qatrani between 2 November 2016 and 19 December 2016 when the applicant was again in Australia but upon his return to South Africa from 20 December 2016 onwards there were frequent calls between the applicant and Al Qatrani. In the two week period before 8 January 2017, there were clusters of phone calls between the applicant and Al Qatrani followed almost immediately by phone calls between the applicant and Serbian. 23. The defence case at trial was that the applicant had no idea what was in the container and thought it might contain car parts or furniture. Remarks on sentence 1. After making the findings of fact I have summarised above, the sentencing judge identified the following matters as being relevant to the assessment of objective seriousness. 2. First, the attempted importation involved 198.3 kg of pure cocaine which was 99 times the commercial quantity (2 kg) and 80.1 g of pure methamphetamine which was 106 times the commercial quantity (750 g). 3. Secondly, the offender knew there were illicit drugs in the magnetic separator (as opposed to being reckless to that fact), was aware that there was a significant quantity involved and intended to take possession of the entirety of it. His Honour concluded that it was highly unlikely that Al Qatrani or those ultimately responsible for the importation of such a large quantity of drugs would allow a person to take possession of such an extremely valuable commodity if that person did have not have prior knowledge that the commodity was an illicit drug. The applicant also knew that there were different types of illicit drugs, evidenced by his knowledge that the drugs were packaged into "three types". 4. Thirdly, although his Honour was not satisfied that the applicant was the mastermind or principal of the criminal enterprise, he was not satisfied that he was a mere intermediary or courier either. Ultimately, his Honour was satisfied that the applicant played a mid-range role between that of a principal and an intermediary involving an organisational post with a high level of responsibility. His Honour described this as "an important and significant role". 5. Fourthly, the applicant's actions extended from 3 September 2016 up to the date of his arrest on 5 February 2017. 6. Finally, his Honour was satisfied that the applicant undertook the following activities: 1. He travelled to Australia in September 2016. On 3 September 2016, he went to Melbourne to meet Al Qatrani and Nasser and personnel from Worldwide Freight to participate and be present at a discussion about the importation of the magnetic separator, although there is no evidence he contributed to the discussion. 2. On 20 January 2017, he instructed Al Qatrani to pay Narayan, referred to as "Fij". He also told Al Qatrani how to disassemble the magnetic separator to access the drugs secreted inside it. He corresponded with Al Qatrani regularly between 9 September 2016 and 27 January 2017 when he arrived in Australia. There was evidence of 29 phone calls between him and Al Qatrani in this period. 3. When he travelled to Australia, he brought a Blackberry phone so that he could correspond with other people that were involved in the importation. The police were never able to access the Blackberry phone because it was password protected. 4. On 29 January 2017, he attended Riverstone Business Park with Al Qatrani and together they disassembled the magnetic separator to access the drugs secreted inside. 5. Having only found bricks in the magnetic separator as opposed to drugs, the applicant moved his return flight to South Africa forward to 5 February 2017. 6. The applicant was involved for profit. Although there was no evidence as to how much he was to be paid for his involvement in the criminal enterprise, having regard to the value of the shipment it can be safely inferred it was to be substantial. 7. His role in the offence was clearly planned and deliberate. 1. His Honour then turned to consider the applicant's subjective case. The applicant's subjective case 1. The applicant is a South African national. He has a wife in South Africa. He has no prior criminal history and is a person of prior good character. His Honour noted the following material relied upon by the applicant at his sentence: 1. A report from Dr Kala Ram, psychologist, dated 19 August 2020; 2. A letter to the court from Dr Maria Maawaad dated 15 October 2020; 3. A report from Dr Michael Kennedy, consultant physician, dated 21 March 2020; 4. Agreed Facts tendered during the trial relating to his not receiving his required medication on a particular day of the trial; 5. An affidavit from his solicitor summarising the applicant's Justice Health file, attempts to engage medical practitioners, and record of COVID-19 lockdowns, and; 6. Testimonials from the applicant's brother who lives on the New South Wales coast, the applicant's wife who lives in South Africa, a man who is a neighbour of the applicant in South Africa and a friend of the applicant from childhood days. These testimonials note amongst other things the charitable work and assistance the applicant has provided in mentoring and training black children in the auto industry. They also referred to his past good and hardworking character. 1. The applicant was raised in a small town in South Africa. He was one of eight children. He had what Dr Ram described as an "unremarkable childhood history" although his father was an alcoholic and his parents separated in 1961 when the applicant would have been about 20 years old. The applicant has no history of mental health or drug issues. 2. The applicant was married when he was 23 years old. He had three children, but, sadly, a son died in a motor vehicle accident about 20 years ago. This put strain on the marriage, and he and his wife divorced. He is estranged from his two living children. 3. The applicant met his second wife in the Philippines in 2014. Following their marriage, she moved to Pretoria to live with him. She still resides there. The applicant speaks to her by telephone approximately once a week. The calls are short due to the expense and logistic difficulty caused by the time difference. 4. The applicant completed Year 12 at school in South Africa. He was a motor mechanic during his working life until his retirement about 15 years ago. When he was about 40 years old, he moved to Australia with his wife and children for about five years. He worked for a Mitsubishi dealership in Manly. He returned to live in South Africa to follow his wife who had returned to South Africa because she was homesick. 5. After he returned to South Africa the applicant worked at the BMW assembly plant in Pretoria for over eight years. For the next seven years, he operated his own small mechanical workshop in a service station that he owned in a coastal town in South Africa. He retired in 2005 when he was about 64 years old. He then moved to Pretoria where he already owned a home and continued his mechanical work on vehicles and motorbikes from home. 6. The applicant has a brother who lives in Sydney who he visited nearly every year after his divorce. He has regular communication with his brother, who visits him in prison, though this was not possible during COVID-19 restrictions. Health problems 1. As his Honour noted, the applicant has numerous health problems for which he takes multiple stabilising drugs. He has coronary artery disease that was first detected in his mid-50s when he suffered his first heart attack. Since that time, he has had a total of five stents inserted into the arteries to his heart at various times. He has cholesterol issues (hyperlipidaemia), blood pressure issues and hypertension. 2. In 2015, the applicant started to develop problems with his kidneys whilst holidaying in the Philippines with his wife. The applicant had stage 3 chronic kidney disease at the time of sentence, and it was anticipated that he would likely require dialysis in custody within three to 12 months. The evidence before his Honour was that the applicant's kidney disease prevented him from taking pain relief stronger than Panadol for the aches in his back and knee joints. He also has side effects from Warfarin (the blood thinner medication for his heart), and has a bleeding bladder and bowel. 3. The applicant also has 50% hearing loss in one ear and a benign overgrowth of prostrate tissue blocking the flow of urine. 4. In November 2019, whilst in custody, the applicant had a total right knee replacement. Although he recovered well, it meant that he could not kneel down properly when ordered to do so by prison officers in June 2020 when they were trying to quell a prison fight. The applicant was pushed to the ground and restrained with zip ties. This caused some injury to his shoulder. His blood pressure was also affected by inhaling the tear gas used on this occasion. 5. The applicant's psychologist, Dr Ram, opined that the applicant "may" have mild Alzheimer's disease or early stages of dementia. He also has significant anxiety symptoms due to the hostile gaol environment. 6. His Honour accepted the applicant's evidence of being bullied and intimidated by other inmates in custody and being an easy target for extortion due to his age. His Honour also accepted that the applicant's time in custody has been and will continue to be harder than would be the case for the average inmate due to various factors including his poor health, particularly arising from his heart and kidney diseases. His Honour also found that it was likely that the applicant will become increasingly compromised, both physically and mentally, due to advancing age, lack of mental stimulation, isolation and fear of dying in gaol. 7. Significantly, his Honour accepted that the applicant's advanced age means that he will have little worthwhile life after his release compared to a younger man. His Honour also found that the applicant's incarceration had been more difficult since March 2020 "and into the unspecified future" due to the COVID-19 pandemic and "the anxiety of the virus spreading quickly in a gaol setting, particularly so for the applicant due to his age", and restricted visits. 8. His Honour had regard to the more onerous nature of the applicant's imprisonment arising from these matters when considering the minimum time that the applicant should spend in custody and the relationship of this to the head sentence. His Honour then observed that: "His advanced age reduces to a certain extent his suitability as a vehicle for general deterrence. This should not lead, however, to a sentence that does not give appropriate weight to general and specific deterrence". 1. His Honour then observed: "The challenge is even more pronounced when the conduct of such an applicant requires, as it does here, the imposition of a lengthy sentence particularly if the offence warrants a penalty which is likely to extend to a point which is close to, or even beyond, the applicant's anticipated life expectancy. Ultimately a balance must be struck between sentencing principles requiring denunciation, deterrence and punishment, and the less commonly encountered but appropriate amelioration for considerations of health and age." 1. His Honour was not able to find that the applicant had demonstrated remorse or contrition but did find that "by reason of his health, age and lack of prior offending" he will not reoffend. 2. The applicant was held on remand for 3 years and 8 months in a maximum-security environment at Long Bay Hospital Gaol. His Honour noted that the fact that he will soon require dialysis means that it is likely he will remain at the hospital gaol. 3. His Honour then dealt with the issue of delay, citing R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303. His Honour did not consider that the delay in this case called for a discrete reduction of sentence beyond the flexible approach to be adopted arising from his health and age. Parity 1. His Honour then dealt with the issue of parity. Two of his three co-offenders had been sentenced at the time of sentence. Shalesh Narayan 1. Shalesh Narayan was sentenced by Judge Norton SC on 27 July 2018. He had pleaded guilty to attempting to possess a commercial quantity of border controlled drugs reasonably suspected of being unlawfully imported. Although that offence carries the same maximum penalty, the applicant stood for sentence on the basis that he knew there were border controlled drugs in the container. Judge Norton SC indicated a starting point of 16 years imprisonment and applied slightly less than a 30% discount for his plea of guilty. Accordingly, he was sentenced to imprisonment for 11 years 6 months with a non-parole of 7 years. 2. Mr Narayan had performed the "important role" of transporting the container and, therefore, the drugs and hence "was trusted by those in the syndicate to be in possession of the drugs". He also drove the forklift to unload the machinery from the container. Her Honour noted there was no evidence he was aware of the amount of drugs involved. He was paid $20,000 for his involvement. 3. Mr Narayan was a 44-year-old Fijian man at the time of the offence and 45 years old when sentenced, with no prior drug related criminal history in Australia. He was married with two children. The children were aged two and seven years old. Her Honour found his remorse was genuine, that he was unlikely to reoffend, that he had good prospects of rehabilitation and "has already in some ways rehabilitated himself". Tony Nasser 1. Tony Nasser was sentenced by Judge O'Connell in the County Court of Victoria on 16 May 2019. He had also pleaded guilty to attempting to import a commercial quantity of border controlled drugs (methamphetamine and cocaine). His Honour indicated a starting point of 20 years imprisonment but applied a discount of 37.5% for his plea of guilty and assistance to authorities. He was sentenced to imprisonment for 12 years and 6 months with a non-parole period of 8 years and 6 months. 2. The sentencing judge found that Mr Nasser played a vital role being the sole person with the responsibility of arranging the arrival and movement of the drugs to Sydney. He registered the company himself as the director and was the party to be notified of the shipment and the contact for the consignee. He arranged the movement of the shipment through customs, its storage in Melbourne and its transport to Sydney. His Honour found that Nasser knew there must have been a substantial quantity of drugs because he was to receive $250,000 for his role, although ultimately he only received part payment of about $50,000. 3. Mr Nasser was 38 years old at the time of the offence and 40 years old when sentenced. He was married with three children aged 2, 14 and 16 years old. He had a gambling problem which resulted in one prior conviction for obtaining property by deception. Mr Nasser also had a coronary artery stent inserted in the past and his condition was managed with medications. At the time of the offence, he had untreated depression. His Honour found Nasser remorseful with "very good" prospects of rehabilitation. Conclusion in relation to parity 1. His Honour noted that the applicant was involved as early as September 2016 and was in a position to instruct Al Qatrani to pay Narayan. His Honour also considered that both Mr Nasser and the applicant took on organisational responsibilities. 2. His Honour noted that although the applicant was not entitled to a discount on his sentence, his age and health warranted a "flexible approach". 3. His Honour noted the statutory guideposts and imposed the sentence. Is the sentence manifestly excessive? Applicant's submissions 1. The applicant submitted that the sentence imposed on him is unreasonable and plainly unjust. It was submitted that whilst the sentencing judge made the correct mitigatory findings, the ultimate sentence is "crushing" in the applicant's circumstances. It was suggested that the sentencing purposes of personal and general deterrence must have overwhelmed the process notwithstanding that the judge found a diminution in the importance of deterrence as a sentencing purpose in the applicant's case. 2. It was submitted that there was no practical utility in giving personal deterrence such prominence alongside a positive finding that the offender was unlikely to reoffend. 3. It was further submitted that the sentencing judge failed to give meaningful weight to the fact that the applicant's time in custody has been and will continue to be harder on account of his deteriorating health, advanced age and social isolation due to the pandemic. The applicant will not become eligible for release until he is 86 years old. His head sentence will expire when he is 95 years old. 4. The applicant acknowledged that the offence committed was a serious example of a very serious offence but submitted that this should not overwhelm the sentencing exercise to the detriment of any proper consideration of the applicant's subjective case as an elderly offender with poor health and a significant likelihood of dying in gaol. 5. It was submitted that the imposition of a lower sentence would not be an affront to the administration of justice, and that it may be the case that the community would perceive the sentence currently imposed on the applicant as unduly harsh. 6. In relation to parity, it was submitted that the co-offenders' cases are distinguishable on the basis that they are significantly younger and healthier than the applicant and their experiences in custody will be very different to the applicant's experiences. The applicant submitted that the sentencing judge did not have sufficient regard to the relative ages, health and custodial conditions of the co-offenders. Although his Honour observed that the "offender's age and health does warrant a flexible approach", it was submitted that it is unclear from the remarks on sentence what this "flexible approach" comprised. It was further submitted that the material differences in the applicant's case warranted more than merely a "flexible approach" to parity. Crown submissions 1. The Crown submitted that the sentence imposed was not unreasonable nor plainly unjust and that the court would not accept the applicant's submission that the judge erred in attributing weight to personal deterrence. It was submitted that personal deterrence was important in this matter because the applicant had not demonstrated remorse for the offending and had maintained in his letter to the court that he was not the person who sent the critical messages to the co-offender, that he did not know the container contained drugs, and that he had no reason to commit the crime. 2. The Crown noted that the applicant did not cavil with the sentencing judge's findings concerning the objective features of the offence or the applicant's subjective case. It was noted that the sentencing judge had regard to the relevant principles for sentencing of elderly offenders. 3. It was submitted that the sentencing judge was clearly cognisant of the need to consider the applicant's age and health and that this awareness is manifest in the judge's variance of the statutory non-parole period to a period that is only 55% of the total term. 4. Overall, it was submitted that the sentencing judge gave appropriate mitigatory weight to the applicant's subjective features including his age and health issues, whilst also recognising the importance of other sentencing purposes. Consideration 1. The principles that apply to a determination of whether a sentence is manifestly excessive are well established. They were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. The nub of the applicant's complaint was that the sentence imposed was effectively a death sentence given the applicant's age. The relevant principles when sentencing elderly offenders were recently restated by Campbell J (with whom Adamson JA and McNaughton J agreed) in Liu v R [2023] NSWCCA 30 at [39] as follows: "As I have pointed out there is no disagreement between counsel about the relevant principles to be applied. In my opinion they are, with respect, accurately and well summarised by Steytler P in Gulyas v Western Australia [2007] WASCA 263; 178 A Crim 539 at [54]. I will set out the passage in full: 'It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present: (1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor. (2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this. (3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release. (4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.'" 1. Having regard to these principles, there are a number of difficulties with the applicant's contention that his sentence is unreasonable or plainly unjust. 2. First, as Allen J observed in Holyoak v R (1995) A Crim R 502 at 507: "It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged of the offender, that he well may spend the whole of his remaining life in custody." 1. The applicant was convicted of attempting to import a very large quantity of drugs into Australia: almost 280 kg in total pure terms. Further, there were two different types of drug. His Honour found that the applicant's role in the enterprise was significant. A very substantial prison term was unavoidable. 2. Secondly, despite a relatively strong Crown case and the fact that his co-offenders pleaded guilty, the applicant continues to deny his guilt. That was his legal right, and he is not to be penalised for doing so. But the practical effect of this approach is that not only was he unable to receive a significant discount on sentence (as his co-offenders did), but he was also unable to rely on remorse or insight to further ameliorate his sentence. 3. Thirdly, principles of parity required that the applicant receive the sentence he did. To reduce it any further, particularly the non-parole period, may well have given rise to a legitimate sense of grievance on the part of his co-offenders. 4. Fourthly, his Honour had regard to the applicant's age and ill health and imposed a sentence whereby the non-parole period was only 55% of the head sentence. This was a significantly lower proportion than was imposed in respect of his co-offenders who had pleaded guilty. 5. Finally, having regard to the reasons of the sentencing judge, I cannot accept the applicant's contention that his Honour failed to have regard to the principle of individualised justice. As Spigelman CJ observed in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [147]: "The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. Sentences must be individualised. The final balance of a wide variety of incommensurable and often incompatible factors does not, I accept, involve a mathematical exercise." 1. It is to be accepted that the frail and elderly applicant is serving his sentence in failing health with the depressing prospect of possibly dying in custody. As unfortunate as that is, it is the result of embarking on very serious criminality late in life and failing to accept responsibility for it in the face of a strong Crown case. 2. I cannot accept the applicant's contention that his Honour gave either general or personal deterrence a "prominent" role which was "unwarranted" given his other findings. Ultimately, the sentencing judge was required to impose a penalty that was appropriate having regard to the mandatory considerations in s 16A(2) of the Crimes Act 1914 (Cth). As part of the process of instinctive synthesis his Honour was cognisant of the difficulties that the applicant had and would face in custody. He raised with the parties during the proceedings on sentence whether one way to accommodate that fact would be to impose a shorter non-parole period and there was concurrence with that approach. 3. Although the applicant's sentence is lengthy, it reflects the competing factors his Honour was required to consider. 4. The applicant has failed to establish that the sentence imposed on him is unreasonable or plainly unjust. Although I am not satisfied that the sole ground of appeal should be upheld, given the length of the term being served by this elderly man, I do consider it appropriate to extend time to bring this appeal, grant leave and dismiss it. Orders 1. Accordingly, I would propose the following orders: 1. The time for bringing this appeal is extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). 2. Leave to appeal is granted. 3. The appeal is dismissed. 1. FAULKNER J: I agree with N Adams J. ********** Amendments 24 September 2024 - [83] quote formatting 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: 24 September 2024