Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BAE, Kangmin v R [2015] NSWCCA 133 Hearing dates: 24 April 2015 Decision date: 03 June 2015 Before: Hoeben CJ at CL at [1]; Hall J at [2]; Wilson J at [112] Decision: (1) The application for leave to appeal be granted. (2) The appeal be dismissed. Catchwords: CRIMINAL LAW – Application to appeal against sentence – Applicant convicted of five counts of drug importation – Whether the sentencing judge erred in taking into account the applicant's use of innocent agents in sentencing – Applicant submitted that there was no direct evidence to establish a factual finding as to the use of innocent agents in the importation of drugs – Evidence had been tendered as to addresses for consignments later found to contain drugs, some of which were addresses of apparently innocent agents – Held that it was open to the sentencing judge to find the use of innocent agents on the basis of that evidence – Whether sentencing judge erred in accumulating the sentences to the extent she did – Held that while the offences formed part of an ongoing scheme or enterprise they were nonetheless separate, discrete offences – Held that the mere temporal relationship between the offences does not mean they are not separate acts of criminality – Sentencing judge did not err in accumulating the sentences – Whether the sentencing judge erred by taking into account the fact of the offences not being 'isolated' in her assessment of both the objective seriousness of the offences and the degree of accumulation to be applied and whether this amounted to 'double counting' – Held that no double counting had occurred – Whether the sentencing judge's reference to the offences being 'not isolated' was a reference to uncharged conduct being taken into account – Held that the sentencing judge's reference to the conduct not being isolated in this context was a reference to the other offences charged on the indictment – No other uncharged conduct was taken into account – Whether the sentence was manifestly excessive – Reliance on categories set out in De La Rosa is of limited assistance and that decision is not a guideline judgment – No error established in sentencing judge's approach – Held that sentence was not manifestly excessive – Appeal dismissed Legislation Cited: Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code (Cth) Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 DPP v De La Rosa (2010) 79 NSWLR 1 Kentwell v The Queen [2014] HCA 37 Lowndes v The Queen (1999) 195 CLR 665 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 Sabongi v R [2015] NSWCCA 25 Sabra v R [2015] NSWCCA 38 Thuong Nguyen v R [2012] NSWCCA 184 Category: Principal judgment Parties: Kangmin Bae (Applicant) Regina (Crown) Representation: Counsel: I Nash (Applicant) C O'Donnell (Crown) Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2010/415361 Decision under appeal Court or tribunal: District Court Date of Decision: 04 April 2013 Before: Hock DCJ File Number(s): 2010/415361 Judgment 1. HOEBEN CJ at CL: I agree with Hall J. 2. HALL J: Introduction 1. The applicant, Kangmin Bae, presently aged 34 years, was indicted on five counts under the Criminal Code (Cth) arising out of the importation of various quantities of border controlled drugs into Australia. 2. On 12 January 2012, he entered guilty pleas to four counts under s 307.1(1) of the Criminal Code (Cth) (counts No 1, 2, 4 and 5 on the indictment) in that he imported a commercial quantity of a substance, being a border controlled drug, he having aided, abetted, counselled or procured the commission of the offences by another or others. The prescribed maximum penalty for an offence under that provision is imprisonment for life and/or a fine of 7,500 penalty units. 3. On the lastmentioned date the applicant also entered a guilty plea to count 3 on the indictment, being an offence under s 307.2(1) of the same Act, namely, an offence of importing a marketable quantity of a substance being a border controlled drug (heroin), he having aided, abetted, counselled or procured the commission of the offence by another or others. The maximum penalty for such an offence is imprisonment for 25 years and/or a fine of 5,000 penalty units. 4. On 4 April 2013 the applicant was sentenced by Hock DCJ. The Offences 1. Particulars of the offences charged are as follows: Offence 1: s.307.1(1) Criminal Code with subsection 11.2(1) Criminal Code – aid and abet the importation of a commercial quantity of cocaine (3.713 kilograms – pure) Offence 2: s.307.1(1) Criminal Code with subsection 11.2(1) Criminal Code – aid and abet the importation of a commercial quantity of methamphetamine (2.266 kilograms – pure) Offence 3: s.307.2(1) Criminal Code with subsection 11.2(1) Criminal Code – aid and abet the importation of a marketable quantity of heroin (0.650 kilograms – pure) Offence 4: s.307.1(1) Criminal Code with subsection 11.2(1) Criminal Code – aid and abet the importation of a commercial quantity of methamphetamine (2.243 kilograms – pure) Offence 5: s.307.1(1) Criminal Code with subsection 11.2(1) Criminal Code – aid and abet the importation of a commercial quantity of cocaine (4.021 kilograms – pure). The Sentences 1. The details of the sentences of imprisonment which were partially accumulated on the applicant for each of the five counts was summarised in the Crown's Written Submissions at [7] as follows: Count number Offence Term Start Date Expiry date 3 Aid and abet importation of marketable quantity of heroin 5 years 19/04/2010 18/04/2015 1 Aid and abet importation of commercial quantity of cocaine 10 years 19/04/2012 18/04/2022 2 Aid and abet importation of commercial quantity of methamphetamine 10 years 19/04/2015 18/04/2025 4 Aid and abet importation of commercial quantity of methamphetamine 10 years 19/04/2018 18/04/2028 5 Aid and abet importation of commercial quantity of cocaine 10 years 19/04/2020 18/04/2030 Head sentence 20 years 19/04/2010 18/04/2030 Single NPP 12 years 19/04/2010 18/04/2022 1. The overall effective sentence, accordingly, was a term of imprisonment of 20 years. The sentences as noted above commenced on 19 April 2010 and are to expire on 18 April 2030, with an effective non-parole period of 12 years commencing on 19 April 2010 to expire on 18 April 2022. Grounds of Appeal 1. The applicant in seeking leave to appeal the sentences imposed upon him relied upon the following grounds of appeal: 1. Her Honour erred by taking into account, in assessing the applicant's role, his use of innocent agents; 2. Her Honour erred in accumulating the individual sentences to the degree she did; 3. The individual sentences, the overall head sentence and non-parole period were manifestly excessive. Evidence on Sentencing 1. The following documentary evidence was admitted at the sentencing hearing: Crown Exhibits Exhibit A: Statement of Facts dated 17 November 2011 Exhibit B: Summary of DHL Consignments and Associated Evidence (set out in a table) Defence Exhibits Exhibit 1: Psychologist Report of Tim Watson-Munro dated 14 February 2013 Exhibit 2: Affidavit of Martin Ricci dated 15 February 2013 The Crown Case on Sentence 1. The relevant factual matters, including in particular the events between 23 October 2009 and 8 April 2010, were set out in considerable detail in the Statement of Facts (Exhibit A) which was cross-referenced to a Table, (Table 1) being the "Summary of DHL Consignments and Associated Evidence" (Exhibit B). 2. The Statement of Facts noted that the applicant was the holder of a Korean passport. He had no record of criminal convictions in Australia or in South Korea. 3. The Statement of Facts recorded that in the period 23 October 2009 to 8 April 2010, 64 cardboard boxes were consigned by DHL Express courier at Toronto, Canada, to 10 different addresses in Sydney. In total, 45 boxes were recovered by police at various locations. Eighteen boxes contained border controlled drugs. Details of the consignments were set out in the Statement of Facts at [44]. 4. In para [7] of the Statement of Facts it was stated: "The contents of most of the boxes were described on the corresponding consignment notes as motor vehicle wheel rims of various types. Several boxes were said to contain clothing, books and personal effects. The boxes were shipped to Australia by air freight as 24 separate consignments. The identity of the shippers varied although (i) most purported to be an entity connected with the sale of car wheels; (ii) many ostensibly different shippers provided identical contact names and telephone numbers. In the case of all but one of the consignments the freight costs exceeded the value of the goods by a significant factor. Many of the consignments nominated 'Min' or 'Jake' as the contact person for the receiver, names which the offender was also known to use." (AB 61) 1. There was evidence linking the applicant, directly or indirectly, to each of the consignee addresses: Statement of Facts at [5]. 2. The applicant entered Australia at Sydney on 11 December 2009 on a flight from Toronto. The Crown contended: 1. That he did so in furtherance of a scheme to import border controlled drugs from Canada, namely, heroin, cocaine, methamphetamine and possibly other drugs by means of the boxes shipped by DHL. 2. His role was specifically to coordinate the receipt and the collection of the boxes, their safe storage and the subsequent transfer of the narcotics for distribution and sale. 3. The narcotics were contained in "Foodsaver" brand heat sealed plastic bags concealed between the surfaces of the two inner cardboard flaps that constituted the base of each box: Statement of Facts at [11]. 1. Facts relating to the consignment of drugs and associated investigations were conveniently summarised in the Crown's Written Submissions dated 15 April 2015 at [13]-[17] which I reproduce below: "13. The applicant lived at an address in Strathfield for a period of time beginning shortly after his arrival in Australia. Four consignments totaling 10 boxes were sent to this address. He moved to 66/230 Elizabeth Street Surry Hills in February 2010. Two boxes in one consignment were sent to this address. The applicant rented a storage unit in Burwood for the safe storage of the consignments and narcotics concealed within them. He procured Han and Yoon to receive consignments at their respective addresses in Bunn Street Pyrmont and Murray Street Pyrmont. He also procured a person named Tjin Ow to receive consignments at his address in Killara. Four consignments comprising 11 boxes were shipped to Han's address. Three consignments comprising 11 boxes were shipped to Ow's address. Six boxes were shipped to Yoon's address. Han and Ow helped transfer some boxes into the applicant's possession and Ow telephoned DHL about the consignment addressed to Yoon's address at the request of the applicant. Boxes were also consigned to other addresses. These included the office premises of the Korean Student Agency at 3/363 Pitt Street Sydney. Seven boxes in three consignments were delivered to this address. Han and Ow helped the applicant shift these boxes to the applicant's premises in Surry Hills. 14. The agreed statement of facts summarised the ultimate position regarding the consignments as follows: "In summary 64 boxes were despatched at Toronto and imported into Australia during the period 23 October 2009 to 8 April 2010. In total 45 boxes were recovered at various locations. Eighteen boxes contained border controlled drugs concealed between the cardboard surfaces of the two inner flaps comprising the base of the box. The two inner cardboard flaps in the base of the 27 remaining recovered boxes had been cut off and removed. A number of intact flaps that had been cut off were found to contain narcotic substances concealed between the surfaces of the cardboard. Several loose bags containing drugs were also found at the offender's Elizabeth Street apartment." [AB 66] 15. A total of 21 of the 45 recovered boxes were found by AFP agents during a search of the applicant's premises at Surry Hills on 19 April 2010. 16. The drug seizures underpinning the five counts against the applicant in the indictment were as follows: Count 1 On 19 April 2010 AFP agents executing a search warrant at the applicant's Surry Hills premises found 6 boxes which had within the flaps at the base of each a total of 5.909kg of cocaine (3.713kg pure). Count 2 On 19 April 2010 AFP agents executing a search warrant at the applicant's Surry Hills premises found within the flaps of 2 boxes as well as in some loose bags a total of 2.945kg of methamphetamine (2.266kg pure). Count 3 On 19 April 2010 AFP agents executing a search warrant at the applicant's Surry Hills premises found within some loose cardboard flaps and loose bags a total of 1.94kg of heroin (0.65kg pure). Count 4 On 16 April 2010 AFP agents executing a search warrant at Han's Bunn Street Pyrmont premises found 4 boxes which had been delivered to that address on 1 March 2010. The cardboard flaps of the boxes concealed a total of 2.926kg of methamphetamine (2.243kg pure). Count 5 On 13 April 2010 Customs officers found within the cardboard flaps of the 6 boxes consigned to Yoon's address a total of 5.849kg of cocaine (4.021kg pure). A simulated delivery of these was effected by AFP agents to Yoon's Murray Street, Pyrmont address on 16 April 2010. 17. On sentence the prosecution relied upon the evidence of the finding of the 27 boxes from which the flaps had been removed and the sending of the additional 19 unrecovered boxes (in which it could be inferred drugs were imported) to show that the conduct forming the subject of the charges in the indictment was not isolated, but was part of a well-organised scheme for the importation of illegal drugs into Australia. [AB 29, AB 56] The Sentencing Hearing 1. The applicant did not give evidence at the sentencing hearing. The report of Mr Tim Watson-Munro, psychologist, dated 14 February 2013 was as earlier noted, tendered on behalf of the applicant and the affidavit of Martin Ricci affirmed 15 February 2013 was also read. Mr Ricci was the applicant's solicitor. His affidavit provided evidence as to the circumstances and events that elapsed prior to the applicant entering his pleas of guilty to the counts in the indictment. 2. The sentencing judge, her Honour Judge Hock, set out in significant detail relevant factual matters concerning the offences. Her Honour's sentencing remarks set out, inter alia, the facts referred to in the Crown's Written Submissions at [14] and [15]. 3. Her Honour incorporated into the Remarks on Sentence a table which summarised quantitative and qualitative details and other information concerning the drugs seized by police (ROS at p 12). That table is reproduced below: Date Drug Bulk kg Pure kg % Location Count 13.04.10 Cocaine 5.849 4.021 68.7% DHL Bond Stone 5 16.04.10 MA 2.926 2.243 68.7% 59/32-34 Bunn Street 4 19.04.10 Cocaine 5.909 3.713 62.8% 66/230 Elizabeth Street 1 19.04.10 MA 2.945 2.266 76.9% 66/230 Elizabeth Street 2 19.04.10 Heroin 1.940 0.650 33.5% 66/230 Elizabeth Street 3 1. The Statement of Agreed Facts recorded the following: [46] The prosecution relies on tendency and coincidence reasoning to prove that (i) the offender intentionally aided and abetted the importation of the border controlled drugs listed above; (ii) the remaining 27 recovered boxes had been utilised to import approximately 25 kg of border controlled drugs consisting of cocaine, methamphetamine and heroin and possibly other narcotic substances and that the offender was also knowingly implicated in that activity; (iii) the remaining 19 unrecovered boxes had been utilised to import approximately 15 kgs of border controlled drugs of an unidentified type and that the offender was in addition knowingly implicated in that activity. [47] On the assumption that each box contained approximately 960 gm of narcotic substances the total quantity of mixed narcotic substances imported by means of the 24 consignments comprising 64 boxes would have been approximately 60 kg." (AB 66) 1. In the Remarks on Sentence her Honour stated: "As to the offender's role, as outlined in the facts, he played a very important role in these importations of border controlled drugs into Australia. While he was not the overall principal of this operation, he was the person trusted to coordinate the arrival and receipt of these drugs in Sydney. His part in the operation required a considerable degree of planning and preparation and included the offender approaching completely innocent people to provide their addresses for receipt of the boxes. The counts on the indictment are not isolated but instances of a well‑organised scheme for importation of these three different illegal substances into Australia. The total pure weight of the drugs recovered is 12.893 kilograms, almost 13 kilograms. As the facts outline, unfortunately most of these consignments were successfully imported into Australia. While there is no evidence of financial reward, the offender was clearly involved for considerable financial gain. The sentences to be imposed must deter foreign nationals in general and this offender in particular, from engaging in offences such as these." (ROS 14) 1. Her Honour then proceeded to deal with the matters that were relevant to the applicant's subjective case. It was noted that he was an intelligent man, an attribute he employed in committing what the sentencing judge referred to as very serious offences: ROS 16. Her Honour noted that the applicant had expressed remorse and shame to the psychologist and that his pleas were taken as indicating an acceptance of responsibility and a willingness to facilitate the course of justice: ROS 16. 2. Her Honour further observed that whilst the applicant was to be sentenced for each individual count, there had to be some accumulation of the sentences "… to reflect his overall criminality and of course to reflect that each offence was not isolated": ROS 16. Applicant's Submissions 1. Mr Nash of counsel who appeared on behalf of the applicant in this Court provided detailed written submissions dated 12 November 2014. These were supplemented by oral submissions at the hearing. (i) Use of Innocent Agents. 1. Mr Nash extracted relevant submissions and exchanges made during the course of submissions before the sentencing judge bearing upon this ground at [15]-[17] of his written submissions. 2. In relation to Ground 1 – "use of innocent agents" – it was submitted that the extracted passages indicated that the sentencing judge took into account a matter that was considered to have increased the seriousness of the applicant's offending, namely the use by the applicant of "innocent agents". 3. The submission for the applicant was that there was no direct or explicit evidence admitted in the sentencing proceedings that established that the applicant had solicited the addresses of completely innocent people, or otherwise used such people, to facilitate the importations in relation to which he was charged. 4. At most, any evidence on this question was said to have been "equivocal and very limited": Written Submissions on Behalf of the Applicant at [37]. 5. It was further submitted that the evidence did not identify which individuals, if any, the applicant dealt with to arrange the use of specified premises, or what the dealings with the agents were, or what the background of any individual he was said to have dealt with might have been. 6. It was submitted that the objective seriousness of the offences should have been assessed without regard to the applicant's claimed use of innocent agents to aid the importation of the drugs. (2) Accumulation 1. In relation to Ground 2 it was submitted, in effect, that the degree of the accumulation of the sentences and the sentencing judge's findings relevant to the issue of accumulation ought to be viewed in the context of the Crown's submissions at the sentencing hearing on that issue: Written Submissions on Behalf of the Applicant at [37]. Passages from the transcript were set out in that paragraph of the submissions. 2. It was noted in this respect that the Crown's submissions referred to the fact that the five offences committed by the applicant were "separate and distinct offences", and that this was then followed by another Crown submission that they "formed part of a course of conduct consisting of a series of the same criminality" and that this was contradictory. 3. The submission for the applicant was that a proper construction of the temporal context in which the offences were committed supported a greater degree of concurrency. It was submitted in this respect: "… the facts made it clear that all were committed in the context of a single enterprise and that all occurred within a relatively short period of time …They [the importations] were substantially contemporaneous, had features in common, and arose in the course of one episode. These features all pointed towards a greater degree of concurrency rather than additional accumulation …" (Applicant's Written Submissions at [39]) 1. It was also submitted that the sentencing judge had had regard to the fact that the offences were "not isolated" in the assessment of both objective seriousness as well as when deciding the degree of accumulation between the sentences imposed for each. To do so was said to involve "double counting": Written Submissions on behalf of the Applicant at [40]. 2. Finally, in relation to this ground, reference was made to the sentencing judge's observation that there had to be accumulation to reflect "… his overall criminality and of course to reflect that each offence was not isolated" (ROS 16) 3. It was also submitted that it was not appropriate to take into account the "overall criminality" by reference to multiple allegations that related to uncharged matters. It was contended that her Honour fell into error by doing so. (iii) Manifest Excess 1. It was noted that taking into account the discount of 15% for the applicant's guilty plea, the starting point for the individual sentences for the s 307.1(1) offences was just over 11 years 9 months. For the sentence imposed in relation to the offence the subject of Count 3 the starting point was said to be just under 5 years and 11 months: Written Submissions on Behalf of the Applicant at [46]. 2. The written submissions for the applicant in relation to Ground 3 acknowledged, in a general way, the limitations on a comparative analysis of sentencing cases for the purpose of demonstrating manifest excess in relation to a particular sentence. 3. By reference to categories or groups of cases referred to in DPP v De La Rosa (2010) 79 NSWLR 1, it was submitted: "45. Notwithstanding those limitations, characteristics of the first 3 groups are of relevance to assessing the appropriateness of the head sentence and non-parole period imposed upon the applicant. Characteristics of the fourth group are relevant to an assessment of the individual sentences, particularly those imposed in relation to the s.307.1(1) offences (Counts 1,2,4 and 5). … 48. When considered in isolation the s.307.1(1) offences are akin to the cases within the fourth category. Neither the weights involved nor the roles described, albeit that the applicant must be regarded as at least 'an overseer', are inconsistent with the offences of the applicant. The quantities of the drugs in each of the s.307.1(1) counts were between 1 and 5 kilograms." 1. The submissions for the applicant accordingly centred upon an analysis which was to a large extent based upon the grouping of cases concerned with the importation of commercial quantities of narcotics as discussed in DPP v De La Rosa (2010) 79 NSWLR 1 at [207]-[215] and the decision of this Court in R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429. Further reference to these cases is made below. 2. It was submitted for the applicant: "59. In short, and recognising the limitations of comparative analysis, the cases discussed in De La Rosa and Holland when looked at against the facts of this matter support the conclusion that both the overall head sentence and non-parole period imposed on the applicant were manifestly excessive." 1. In addition based on an analysis in the submissions of recent cases which were said to provide a comparative analysis of sentences, the sentences in them were relied upon to support the submission that the applicant's sentence was manifestly excessive. 2. It was accordingly submitted for the applicant that this Court should conclude that the sentences were affected by appellable error and that other sentences were warranted in law: s 6(3) Criminal Appeal Act 1912. 3. In respect of Grounds 1 and 2, if either ground was upheld, it was noted that the Court would receive any additional material in the exercise of the sentencing discretion afresh: Kentwell v The Queen [2014] HCA 37 at [42]-[43]. 4. If Ground 2 was upheld, then, it was submitted, the Court would proceed to resentence so as to reduce the sentence: Written Submissions on Behalf of the Applicant at [62]. Crown Submissions Ground 1 1. The Crown noted that in accordance with s 16A(2) of the Crimes Act 1914 (Cth) the sentencing judge was required to take into account a number of matters as are relevant and known to the court including: (a) the nature and circumstances of the offence; … (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character – that course of conduct; 1. In relation to this ground it was contended that her Honour was required to take into account, as a part of the nature and circumstances of the offences, that an aspect of the offending concerned the applicant having approached completely innocent people to provide their addresses for the receipt of the boxes containing the prohibited drugs. 2. It was noted that her Honour did not quantify the extent to which this aspect was taken into account nor, it was contended, was her Honour obliged to do so: Crown Written Submissions at [22]. 3. Generally speaking, the Crown submitted, offending conduct that involves the use of innocent and unwitting third parties stands in a different context to offending conduct involving only the offender. In this respect it was argued that, amongst other matters, the use of innocent persons suggested a determination of one who is prepared to compromise and prejudice the interests of third parties in exercising the criminal scheme and it demonstrates the extent of planning involved in the offending conduct: Crown Written Submissions at [23]. 4. The Crown further submitted that it was not correct to say that there was no direct or indirect evidence on this issue, referring in this regard to the analysis in the Agreed Statement of Facts and the table of consignments, Exhibit B. 5. Whilst the Crown sought to support its submissions primarily by reference to the person, Ow, who the applicant procured to receive boxes, the Crown also argued that it was implicit in the Agreed Facts that the applicant utilised the Pitt Street premises of a specified student agency. 6. Accordingly, the Crown submitted no error had been demonstrated in the finding of fact as to "innocent agents" nor any error as to the weight that the sentencing judge gave to that matter. Ground 2 1. The Crown in its submissions relied upon the well-established principle that questions of the degree of accumulation and concurrency are matters for sentencing discretion. Reference was made to the recent decision in Sabongi v R [2015] NSWCCA 25 (Hamill J at [43], Hoeben CJ at CL and Johnson J agreeing). 2. The Crown submission was, in essence, that in the absence of any identifiable error of principle in the sentencing judgment in this case, this Court would not intervene. 3. In relation to the question of structuring of sentences for multiple offences the Crown relied upon the decisions of this Court in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 per Howie J at [27]; R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52] and Sabra v R [2015] NSWCCA 38 at [59], [62] in relation to the relevant principles to be applied. 4. The Crown contended that the sentences imposed by the sentencing judge, taking into account the extent of the accumulation of sentences, were consistent with the principles as discussed and enunciated in those authorities. 5. The five offences for which the applicant was sentenced, the Crown contended, while falling within the one overall enterprise, were nonetheless distinct in a number of respects. These included the timing of the offences, the substances to which they related and the locations where the substances were found: Crown Written Submissions at [33]. 6. The Crown submitted that case law authority established that the fact that distinct offences fall within one larger overall criminal enterprise does not preclude some accumulation of sentences for the individual offences: Crown Written Submissions at [34]. 7. In respect of the submission as to the "uncharged" criminal conduct, the Crown observed that the sentencing judge in stating that the effective overall sentence was "of course to reflect that each offence was not isolated" (ROS at 16), was not referring to uncharged criminal conduct. The Crown submission on that point was: "…she was referring to the five offences for which the applicant was being sentenced and, by reference to the principle of totality and to the obvious fact that there were five offences, those offences individually were not isolated. No double-counting or impermissible consideration occurred." (Crown Written Submissions at [36]) 1. The Crown further submitted that the fixing of a single non-parole period of 12 years was consistent with what was said to be a carefully applied and principled approach: Crown Written Submissions at [37]. 2. The Crown identified the following matters as relevant to the objective seriousness of the offences: "(a) The weight of the drugs imported. The commercial quantity of cocaine is 2 kilograms. The pure quantity imported in count 1 was approaching twice that threshold and in count 5 just over twice. The commercial quantity of methamphetamine is 0.75 kilograms. The quantity of pure methamphetamine covered by counts 2 and 4 was three times this threshold. The marketable quantity of heroin is 2 grams. The pure quantity of heroin imported in respect of count 3 was 325 times this amount. (b) The total pure weight of the drugs recovered was 12.893 kilograms. (c) The maximum penalty for counts 1, 2, 4 and 5 was life imprisonment and or a fine of 7,500 penalty units. The maximum penalty for count 3 was 25 years imprisonment and or a fine of 5,000 penalty units. (d) The applicant's role, as outlined in the agreed statement of facts was a very important one. Though not the overall principal, he was the person trusted to coordinate the arrival and receipt of the drugs in Sydney. His part in the operation required a considerable degree of planning and preparation. (e) The applicant's role included him "approaching completely innocent people to provide their addresses for receipt of the boxes". (f) The counts on the indictment were not isolated "but instances of a well organised scheme for importation of these three different illegal substances into Australia". (g) Though there was no evidence of financial reward, the applicant "was clearly involved for considerable financial gain". (h) The sentences imposed needed to deter foreign nationals generally and the applicant specifically from engaging in offences such as those in the indictment. (i) The multiplicity of offences and the fact they were not isolated required some degree of accumulation of the individual sentences to reflect the applicant's overall criminality and the fact that each offence was not isolated." (Crown Written Submissions at [18]) 1. The Crown submissions also identified the subjective features which the sentencing judge took account of in sentencing the applicant at [19] of the Crown's Written Submissions as follows: "(a) The applicant had no prior criminal convictions, though that factor carried less weight in offences of this type; (b) The applicant, a Korean national who travelled to Canada to study, came to Australia for the sole purpose of overseeing and facilitating the importations of drugs. (c) The applicant was married in Korea in 2008 but his wife left him and returned to Korea after his arrest. (d) The applicant had a history of alcohol and cocaine abuse, though he had detoxified in gaol. (e) The applicant was a heavy gambler who won significant amounts of money from gambling. (f) The applicant was anxious and depressed. (g) The applicant had completed some courses of study and was keen to undertake more after being sentenced. (h) The applicant had expressed remorse and shame to his reporting psychologist. (i) There was considerable delay prior to the applicant pleading guilty. This was partially explained by a change in legal representation. (j) The applicant's pleas of guilty entitled him to a discount of 15% on his sentence which indicated an acceptance of responsibility and a willingness to facilitate the course of justice. (k) The applicant, though able to speak English, would be isolated from family and friends while in prison in Australia, though this factor is of little weight for an offender who travels to Australia for the sole purpose of importing border controlled drugs, as the applicant did." Ground 3 1. The Crown referred to well-established principles according to which an appellate court may interfere with a discretionary judgment of a sentencing judge: Crown Submissions at [39]-[40]; Lowndes v The Queen (1999) 195 CLR 665 at [15]. 2. The limitations upon a comparative analysis of cases for the purpose of demonstrating manifest excess in a particular sentence were emphasised: Crown Submissions at [44]-[46]. It was observed, in particular, that the applicant's submissions based upon the extensive analysis of categories of cases as discussed in De La Rosa were of limited assistance. 3. The Crown submitted that the appellant had failed to demonstrate any specific error or defect on the part of the sentencing judge in sentencing the applicant. Nor, it was contended, had the applicant demonstrated that the sentence imposed was outside the applicable range of sentences indicated by the table of comparative sentence decisions relied upon at the sentencing hearing. 4. The Crown submitted that the sentence imposed on the applicant could not be viewed as manifestly excessive. CONSIDERATION Ground 1 1. In relation to the first ground of appeal (asserted error by taking into account, in assessing the applicant's role, his use of "innocent agents") I do not consider, with respect, that there is any substance to this ground. 2. Initial reference to the matter of "innocent agents" appears to have arisen in the course of oral submissions by counsel then appearing for the applicant at the sentence hearing. In the transcript of the sentencing hearing, 15 February 2013 at p 16, reference was there made by Counsel for the applicant to "ten different addresses" following which counsel stated that the sentencing judge, having presided at the trials in relation to the applicant's co-offenders, would have a higher level of knowledge "… in relation to the innocent agents": T 16:20-25. 3. Reference to the concept of "innocent agent or agents" was also made in the course of the Crown's submissions to the sentencing judge at T 20:15-50. Counsel appearing for the Crown referred to the Table (a reference to Exhibit B) which recorded the destinations of the boxes of drugs imported. Counsel stated in this respect: "… most of the boxes went to innocent agents which were addresses in Pitt Street and various other parts of Sydney and that's what those submissions are about, the innocent agents which were used …" (T 20:35-40) 1. It is relevant to note for the purposes of Ground 1, that Exhibit B identified five separate deliveries of boxes to the premises of the student agency in Pitt Street, being deliveries made on 23 October 2009, 5 November 2009, 4 March and 31 March 2010 and on 7 April 2010. 2. Even confining the sentencing judge's reference to "innocent agents" to those five deliveries, the facts as to those deliveries provided a sound evidentiary basis for the sentencing judge's finding that the applicant's role included "… approaching completely innocent people to provide their addresses for receipt of the boxes": ROS 14. It was open to her Honour to find that the applicant used the occupiers of the student agency premises in Pitt Street as "innocent agents" for the purpose of effecting delivery of the boxes containing the prohibited drugs in the course of his role in the importation scheme. 3. Finally, it is to be noted that her Honour's finding in relation to the applicant's use of innocent people in the manner referred to was but one aspect of the applicant's role, a role that in fact had several aspects to it, as described by her Honour in the course of her Remarks on Sentence. 4. Ground 1, in my opinion, should be dismissed. Ground 2 1. In relation to Ground 2 which asserts error in the sentencing judge accumulating individual sentences to the degree to which she did, the specific facts concerning the importations and the applicant's role in relation to those facts established that his offending was critical in relation to separate and serious offences. The Remarks on Sentence referred to those facts in considerable detail, including in particular, the facts as to the specific DHL consignments, the number of boxes and their contents following seizure by police: ROS 10-14. 2. In relation to the five seizures made by police on 13 April 2010, 16 April 2010, including the three separate seizures on 19 April 2010, her Honour set out details as to the nature of the drugs seized, their bulk weight and pure weight, the purity levels and the location referable to each of the counts 1, 2, 3, 4 and 5 on the indictment. 3. Her Honour had regard to the total pure weight of the drugs seized (cocaine, methylamphetamine and heroin) was 12.893 kilograms (almost 13 kilograms). 4. The evidence established (in particular, Table 1 in Exhibit B) that a large number of DHL consignments were involved in all 24 consignments comprising 64 boxes. 5. As identified in the Remarks on Sentence, the applicant acted in a trusted position to coordinate the arrival and receipt of the various consignments of drugs in Sydney. As her Honour stated, his part in the operation required a considerable degree of planning and preparation. Her Honour accurately stated that the counts on the indictment were not isolated but were instances of a well-organised scheme for importation of three different illegal substances into Australia: ROS 14. 6. Whilst each of the offences in Counts 1 to 5 were committed within a period of months as part of one scheme or enterprise, they each involved separate acts of aiding/abetting the prohibited importation of significant quantities of prohibited drugs. Each involved its own deliberate planned contravention of the Crimes Act. In my opinion, the fact that they took place in the course of a single enterprise does not mean that they may be properly characterised as merely involving a single course of conduct. 7. The mere temporal relationship between the series of offences, does not, of course, mean that by virtue of that fact the criminality of one importation can or does encompass the criminality of another or other offences. Each, on the evidence, involved a deliberate and very serious contravention of the provisions of s 307.1(1) (Counts 1, 2, 4 and 5) and s 307.2(1) (Count 3) of the Criminal Code. 8. The principles that apply to questions of the degree of accumulation and concurrency are well-established: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7]; R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52] and Sabongi v R [2015] NSWCCA 25 at [43]. 9. The proper exercise of the judicial discretion on sentence does not, in my assessment, support the proposition advanced for the applicant with respect to the facts of the present case, that matters such as "temporal context", commission of the offences "in the context of a single enterprise" or that the fact that the offences "had features in common" or arose "in the course of one episode" point to an erroneous exercise of the discretion by the sentencing judge resulting in insufficient concurrency of sentences imposed upon the applicant. 10. In Cahyadi, Howie J observed: "[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which was warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common features it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. The present case did not involve "a single episode of criminality with common features". Rather it involved a scheme or enterprise pursuant to which there was undertaken a number of discrete and independent criminal acts, each, as earlier stated involving deliberate and very serious contraventions of the Criminal Code. 2. The structure of the sentences imposed upon the applicant, in my opinion, reflects a fair and balanced exercise of judicial discretion. 3. I have earlier referred to the fact that in the applicant's Written Submissions it was argued that it was apparent from passages in the sentencing remarks, extracted into the submissions for the applicant, that her Honour had regard to the fact that the offences were "not isolated" in her assessment of, firstly, the objective seriousness of the offences and, secondly, in determining the degree of accumulation between the sentences imposed for each. It was submitted that this would involve "double counting" that aspect of the criminality and that this amounted to an error. 4. For convenience, I again set out below the relevant extracts in the Remarks on Sentence. At p 14 her Honour observed: "The counts on the indictment are not isolated but instances of a well‑organised scheme for importation of these three different illegal substances into Australia …" 1. When dealing with the issue of accumulation, her Honour observed: "While the offender is to be sentenced for each individual count, there must be some accumulation of the sentences to reflect his overall criminality and of course to reflect that each was not isolated." 1. I do not consider there was any double counting involved. I accept the Crown submission that the references by her Honour to "not isolated" in each of the above extracts, were not directed to the same object. When first used, in context, the phrase was referring to the proposition that the offences in Counts 1 to 5 were not isolated given the fact that there was considerable evidence of uncharged conduct by the applicant. This was indicated by the evidence established that there had been 64 boxes containing drugs, some of which were located and some of which were not. 2. The second reference to "not isolated" arose in a context of the remarks that was directed to a different issue, namely, the accumulation of sentences relevant to the issue of totality. I accordingly reject the submission made on behalf of the applicant on this aspect. 3. Finally, there is no basis for the submission that her Honour determined the degree of accumulation by taking into account uncharged acts on the issue of "overall criminality of the offences charged". I accept the Crown's submission that her Honour, in stating that the overall sentence was "of course to reflect that each offence was not isolated", was not referring to uncharged criminal conduct but that those words were a reference to the five offences for which the applicant was being sentenced in the context of an overarching scheme. I accept that no double counting or impermissible considerations entered into the exercise of her Honour's discretion. 4. The determination, in particular, of the overall or effective non-parole period of 12 years represented, in my opinion, a proper exercise of the discretion. 5. There is no merit in Ground 2. The ground should be dismissed. Ground 3 1. As earlier indicated, when discussing the submissions made on behalf of the applicant, considerable reliance was placed in relation to this ground upon the decisions of this Court in De La Rosa and Holland. 2. Those submissions, as earlier indicated, placed heavy emphasis upon the sentencing analysis, based on other cases, undertaken by McClellan CJ at CL in De La Rosa in which his Honour categorised or grouped cases concerned with the importation of commercial quantities of narcotics into four groups, in particular, at [207]-[215] of his Honour's judgment. 3. Firstly, it is to be noted that his Honour subsequently in Holland, supra, at [3] referred to his judgment in De La Rosa and observed that some of his remarks "… may have been misunderstood". In addition, McClellan CJ at CL there observed: "… however it would be wrong to sentence an offender by seeking out the 'category' into which they fit and imposing a sentence which is thought to be appropriate for an offence which happens to have the characteristics found in that category." 1. However, with respect, the approach taken in the submissions for the applicant sought to establish that the aggregate sentence was manifestly excessive by reference to the characteristics referred to by McClellan CJ at CL in De La Rosa including those in group 2. The submission was that the applicant's case should be categorised as below the "second group". McClellan CJ at CL in De La Rosa stated that the head sentences in the decisions in his Honour's second group ranged from 18 to 24.5 years and the non-parole periods were between 10 and 16 years. 2. His Honour's fourth category involved head sentences ranging from 8 years to 15 years with a non-parole period starting at 4 years and ending at 11 years: at [211]-[213]. 3. As the Crown observed in its written submissions at [42], the judgment of McClellan CJ at CL in De La Rosa itself stated that it was not a guideline judgment. 4. In Thuong Nguyen v R [2012] NSWCCA 184, Davies J (with whom Allsop P and Latham J agreed) observed at [38]: "The appeal to De La Rosa must be approached with caution. This Court has held on a number of occasions recently that limited assistance is to be gained by an applicant endeavouring to place himself in one or other of the categories described by McClellan CJ at CL in that case: Angus John Lindsay v R [2012] NSWCCA 124 at [7]-[8]; Kuti v R [2012] NSWCCA 43 at [45]-[48]; Remus Ritter v R [2012] NSWCCA 121 at [42]-[44]. De La Rosa was not written as a guideline judgment: De La Rosa at [196]-[200] and [203]. The judgment should only be used for general guidance and assistance: Lindsay at [18]." 1. It is, in addition, to be noted that whether or not the applicant could be categorised as being in or below group 2 in the groups referred to in De La Rosa is doubtful. McClellan CJ at CL in respect of that group referred to the fact that the majority of the offenders had played roles described as "essential" or "vital" but which were not principal roles. Accepting that the sentencing judge found that the applicant in the present case was not the overall principal of the operation, his role was nonetheless significant as he was a person trusted to coordinate the arrival and receipt of the drugs in Sydney: Remarks on Sentence at p 14. 2. I am of the opinion that descriptions such as "essential" or "vital" though relevant to this case assist only to a limited extent in identifying the applicant's criminality. Rather it is necessary to undertake, as the sentencing judge did, an analysis of the facts concerning the nature of the operations with which he was involved, the extent of planning, the overall scheme of which the subject importations were but part, the nature of the prohibited drugs, their amounts, the organisational role and other roles undertaken by the applicant. 3. I do not consider that the decision of this Court in Holland, supra, provides the applicant with support in his contention that the sentence was manifestly excessive. In Holland the respondent in a Crown appeal was also a Canadian national but who resided in the Philippines. He was aged 57 years. He had engaged accountants to assist in the establishment of an apparently legitimate business, received monies to assist him and maintained contact with his Canadian associates. 4. In that case the respondent had communicated with the customs brokerage firm as to the landing and delivery of a container. Examination of a forklift within the container revealed that hidden inside its batteries were 14 packages of white powder weighing in total 9,984.1 grams. On examination the packages were found to contain cocaine. 5. The Court had regard, of course, to the particular subjective circumstances associated with the respondent who was given the benefit of a 45% reduction in his sentence for assistance and his guilty plea. The result was that from a starting point of 12 years, a term of imprisonment of 6 years and 8 months with a non-parole period of 4 years was imposed. The non-parole period represented 60% of the overall term. 6. The applicant also relied upon a table of comparative sentence decisions which was referred to at the sentence hearing entitled "Drugs – Cocaine – Import Commercial Quantity" downloaded from the Public Defender's Office. 7. I do not consider that a comparison based on the sentences in the above material relied upon by the applicant establishes that the sentences imposed by the sentencing judge in the present case was outside what might be considered to be an applicable range of sentences. The sentencing judge, with respect, made appropriate findings as to the objective seriousness of the offences, took into account the subjective factors, addressed the issue of totality and made provision for an appropriate accumulation of sentences to reflect the applicant's overall criminality. 8. Her Honour having addressed and taken into account all relevant factors and circumstances, imposed sentences that in my opinion were appropriate and not manifestly excessive. 9. I am of the opinion that this ground of appeal should be dismissed. 10. I have accordingly concluded that the following orders should be made: 1. The application for leave to appeal be granted. 2. The appeal be dismissed. 1. WILSON J: I agree with Hall J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2015