Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Van Zwam v R [2017] NSWCCA 127 Hearing dates: 5 May 2017 Date of orders: 09 June 2017 Decision date: 09 June 2017 Before: Macfarlan JA at [1]; Adamson J at [8]; Campbell J at [106] Decision: (1) To the extent required, extend the time for the filing of the notice of application for leave to appeal against conviction. (2) Grant leave to appeal against conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). (3) Dismiss the appeal against conviction. (4) Grant leave to appeal against sentence. (5) Allow the appeal against sentence, quash the sentence passed in the District Court, and re-sentence the applicant as follows: (i) The offender is sentenced to imprisonment for a period of 8 years and 6 months commencing on 22 March 2013 and expiring on 21 September 2021; (ii) Fix a non-parole period of 4 years and 6 months commencing on 22 March 2013 and expiring on 21 September 2017. Catchwords: CRIMINAL LAW – appeal against conviction following plea of guilty – importing commercial quantity of border controlled drug – fault element required under section 307.1 Criminal Code Act 1995 (Cth) – recklessness – where applicant admitted his awareness of a substantial risk that substance in suitcase was a border controlled drug – where there was no suggestion that applicant had not been properly advised as to entering plea of guilty or that plea of guilty was unsound – HELD – appeal dismissed –– no miscarriage of justice established to permit withdrawal of plea of guilty and order for retrial CRIMINAL LAW – sentencing – sentencing judge found no genuine evidence of remorse in absence of applicant giving evidence on oath subject to cross-examination – applicant read an affidavit in which he expressed remorse – Crown did not cross-examine him – held by majority that sentencing judge erred in not finding remorse – difference between sworn affidavits and out of court statements recorded in a third party report referred to – applicant resentenced – sentence imposed by District Court quashed Legislation Cited: Crimes Act 1914 (Cth), ss 16A(2)(h), 21E Criminal Appeal Act 1912 (NSW), s 5(1)(b) Criminal Code Act 1995 (Cth), ss 3.1, 3.2, 5.1(1), 5.4, 307.1(1) Evidence Act 1995 (Cth), s 4(2) Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Hili v the Queen; Jones v the Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v the Queen (2015) 252 CLR 601; [2014] HCA 37 Markarian v The Queen 228 (2005) 228 CLR 357; [2005] HCA 25 Meissner v The Queen (1995) 184 CLR 132 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 O'Neil-Shaw v R [2010] NSWCCA 42 R v Elfar [2003] NSWCCA 358 R v MAK; R v MSK [2006] NSWCCA 381; A Crim R 159 R v McGourty [2002] NSWCCA 335 R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238; R v Pang (1999) 105 A Crim R 474 R v Qutami (2001) 127 A Crim R 369 R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21. Smith v The Queen; The Queen v Afford [2017] HCA 19 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Wong v the Queen (2001) 207 CLR 584 Category: Principal judgment Parties: Eric Van Zwam (Applicant) Regina (Respondent) Representation: Counsel: I McLachlan (Applicant/Conviction only) Applicant self-represented on sentence W Abraham QC/J Alderson (Respondent) Solicitors: Legal Aid Commission of NSW (Applicant/Conviction only) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2013/88684 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 18 June 2015 Before: King DCJ File Number(s): 2013/88684 Judgment 1. MACFARLAN JA: I have had the advantage of reading the judgment of Adamson J in draft form. I agree with her Honour's reasoning and proposed orders concerning Mr Van Zwam's application for leave to appeal against his conviction. I agree also with her Honour's reasons concerning his application to appeal against sentence other than her Honour's conclusions in respect of Ground 5. My views in relation to Ground 5 are as follows. 2. Apart from recording that Mr Van Zwam was in the Court's dock during the sentencing proceedings, the relevant part of the transcript is in the following terms: "JARDIM: On behalf of the offender I tender a folder of defence material on sentence. There is an index at the front of that folder. The first item is an affidavit of Eric Van Zwam, sworn this morning on 4 December 2014. HIS HONOUR: Are you calling him? JARDIM: No, your Honour. HIS HONOUR: Those documents are of not particularly great weight Ms Jardim." 1. In his Remarks on Sentence, the sentencing judge made the following observations relevant to this ground of appeal: "To make it clear, on the basis of the material before me, and despite his assertions in his affidavit that he is ashamed of himself because he has shamed his family and everybody who knows him, that he is remorseful, and acknowledges that he has become a burden on the Australian community, in the absence of evidence on oath subject to cross-examination, I am unable to find any genuine evidence of remorse or contrition." 1. Mr Van Zwam's affidavit of 4 December 2014 was of course sworn. In it, he expressed his remorse and deep shame about what he had done. The Crown had a right to cross-examine him on the affidavit but there is no indication in the transcript of the sentencing proceedings, or in any other evidence before this Court, that it sought to do so. 2. I respectfully disagree with Adamson J's inference that the confirmation of Ms Jardim, who appeared for the applicant, that the applicant would not be called to give evidence was taken by the sentencing judge (and presumably the Crown) as "an indication that the applicant was not prepared to subject himself to cross-examination on the affidavit". The transcript does not suggest that that was the position. If it had been, the logical course for the Crown to have taken would have been to object to the affidavit being read, which it apparently did not do. 3. If the Crown chose not to cross-examine Mr Van Zwam on his affidavit, Mr Van Zwam should not be prejudiced by that choice. However Mr Van Zwam was in fact prejudiced by his Honour's finding that he was "unable to find any genuine evidence of remorse or contrition" (emphasis added) when there was apparently genuine (although untested) evidence of remorse and contrition in Mr Van Zwam's affidavit. Although his Honour might have been entitled to treat this as of less weight than evidence given orally, he was not entitled to disregard it altogether. If Mr Van Zwam declined to be cross-examined on his affidavit, the Crown should have objected to the affidavit being read, or at least ensured that any such refusal to be cross-examined was recorded in the transcript. 4. For these reasons, I consider that leave to appeal against sentence should be granted and the appeal allowed on the basis of Ground 5. I agree with Campbell J's reasoning and conclusions as to resentencing. 5. ADAMSON J: The applicant seeks an extension of time to bring an application for leave to appeal against his conviction following his plea of guilty to one count of importing a commercial quantity of a border-controlled drug (methamphetamine) contrary to s 307.1(1) of the Criminal Code (Cth) (the Code). Leave is required to appeal against conviction as the appeal involves a mixed question of law and fact: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The applicant also seeks leave to appeal against the sentence of 9 years, commencing 22 March 2013, with a non-parole period of 5 years and 6 months which was imposed by King DCJ on 18 June 2015. 6. For reasons set out below, I consider that it is appropriate to grant both an extension of time and leave to appeal in respect of conviction and sentence. Application for leave to appeal against conviction 1. In order to appreciate the context in which the appeal is brought it is necessary to set out the facts and procedural history before turning to the question whether the applicant ought be granted leave to withdraw his plea of guilty, with the consequence that his conviction would be quashed and a new trial ordered. 2. Mr McLachlan, who appeared on behalf of the applicant on the conviction but not the sentence, adduced evidence in support of the application to withdraw the plea. The following narrative reflects that evidence together with the evidence in the application book, in so far as it is relevant to the entry of the plea and the application for its withdrawal. The underlying facts 1. On 22 March 2013 the applicant arrived at Sydney International Airport on a flight from Singapore. On his arrival he presented his passport and an incoming passenger card in which he indicated that his intended length of stay in Australia was 10 days; his reason for coming to Australia was "holiday"; and he was not bringing prohibited goods into the country. 2. The applicant was stopped at Customs after he had collected his luggage. His bag was taken away and examined. He was interviewed by Customs officers who informed him that they were investigating an allegation that he had imported methamphetamine. He was given a warning. He told the officers that he wanted to co-operate. He was subsequently arrested and questioned. 3. The applicant told the officers the following. A few months previously a man called Alex had contacted him and told him that he needed someone to transport gold powder to other countries. The applicant asked whether drugs were involved and was told that they were not and that there was no risk associated with the transportation. 4. A fortnight before 22 March 2013, the applicant and a friend, Niko, were asked to take something to Australia. The arrangement was that their expenses would be paid and that they would have to contact someone, who would then visit them to collect the delivery for which they would be paid. 5. On 12 March 2013 the applicant and Niko departed from Banjul in Gambia to Abidjan on the Ivory Coast. They were contacted by another man, Tony, who gave them a suitcase on 19 March 2013. When the applicant asked the man whether he could see what was in it, he was told that everything, being 1kg of gold, was already sealed. The applicant asked himself whether it was safe but as he did not have his return ticket he decided that he had to go ahead with it. He needed money as he had recently bought a compound in Gambia, where he had moved in July 2012, and wanted to build a house there. He had paid for the land but had no source of income apart from his savings. 6. After the applicant and Niko had each received a suitcase, they flew with the suitcases to Casablanca, Paris and Singapore before arriving in Sydney on the morning of 22 March 2013. The plan was that once they landed in Sydney they would go to a nominated hotel and text Alex to let him know that they were there. They expected that someone would come and give them each US$3,000 in exchange for the two suitcases. The plan was that they would stay in Sydney for one or two days, after which they would return to Gambia as soon as possible. 7. As referred to above, the applicant was arrested and charged on 22 March 2013. The full brief of evidence was served on 27 June 2013. On 11 December 2013 he waived his right to committal. On 14 February 2014 the matter was set down for trial commencing on 10 June 2014. Conference on 10 June 2014 regarding plea 1. The evidence established that, on the first day of the trial, 10 June 2014, Mr Covington, the solicitor employed by the Legal Aid Commission, who acted on behalf of the applicant, conferred with the applicant about his options. Mr Covington made a detailed file note in which he recorded what had occurred in the conference. On the left hand column he wrote what he had told the applicant and on the right, the applicant's response. The choice between the two options, a plea of guilty or a plea of not guilty, was extensively canvassed. 2. The notes record that Mr Covington identified aspects of the Crown case which created difficulties for the applicant. Mr Covington, according to the notes, asked the applicant rhetorically why, if there was no risk, the delivery needed to be concealed in a suitcase. He explained to the applicant that if he went to trial and was convicted the likely penalty would be 6-7 years, because of his health and his age, although the maximum penalty was life. The applicant was told that there was a small chance that the jury would accept what he said, which he estimated to be no less than 20%. The alternative was that he plead guilty on the basis that he thought that what he was carrying was gold powder but that he was reckless as to the possibility that it was drugs. The applicant was advised that, on this scenario (the fault element being recklessness), the best outcome would be about 4 years. Mr Covington explained to the applicant that there were two possible ways in which he could be found guilty: either that he knew that there were drugs; or that he was reckless as to whether there were drugs. 3. Mr Covington also noted that he warned the applicant that Niko could be found not guilty and the applicant could "do" (which I take to be a reference to the time required to be served as a non-parole period) 4-5 years' imprisonment. His notes of the applicant's response are: "If you say PNG [plead not guilty] chances are small, I don't want to gamble any more. If it is 5 or 10 years I die here, my body cannot stand it any more." 1. Mr Covington's notes recorded that after this exchange he said: "We will go speak to the crown and see what we can do". According to the notes, the applicant responded: "I am sorry, I am broken, 24 hours a day I have a headache, my heart also, I tried to hold on I am not a criminal" 1. On page 10 of the notes Mr Covington recorded: "We will see you again in the morning. We will see what we can sort out" Further conference on 11 June 2014 regarding plea 1. Mr Covington's notes recorded that he had a further conference with the applicant on 11 June 2014 at which Louise Jardim, the applicant's trial barrister, and an interpreter were present. Mr Covington gave the applicant two documents. One of the documents contained written instructions to his legal representatives to plead not guilty and the other contained written instructions to his legal representatives to plead guilty. According to Mr Covington's notes, he said to the applicant: "Are you happy to agree you thought it was drugs or do you want to fight, you have to make that decision. You either accept it or we go to trial. It's completely up to you, either way we will fight for you but you have to make the decision" 1. Mr Covington also recorded the following exchange: Even if guilty by jury you still get to talk I made the wrong decision About your health I don't want to put my life in the hands You seem settled about your decision of 12 people The range is 5-7 not 4 years I thought about it, can you try your best You are accepting that it was drugs For me You don't want to think about it, we can I know it's my decision come back I know 5-7 +6-7 maybe higher only We go before judge and he reads out thing if I really thought it was drugs I charge to you would have said it at the beginning Matter gets adjourned for 6 weeks, we I don't want to gamble Get a date for sentence I have thought about it last night, I have You understand you cannot get in the made my decision box and say it wasn't drugs I don't want to gamble You won't be sentenced today 1. In a subsequent entry, also on 11 June 2014, Mr Covington recorded: "I went back to see client in the cells at 1pm to get medical authorities for hospital notes. Client seemed happy with his decision and kept stating that he wants the lowest amount of time possible." Entry of the plea of guilty, correspondence with the Legal Aid Commission and the sentencing proceedings 1. The plea was entered on 11 June 2014. On 12 June 2014 the Australian Federal Police (AFP) contacted Mr Covington to ascertain whether the applicant would give evidence at the co-accused's trial. The applicant's decision not to give evidence at the co-accused's trial was communicated by Mr Covington to the AFP. 2. Mr Covington referred the applicant to Dr Katie Seidler, clinical and forensic psychologist, for the purposes of providing a report for the sentence hearing. Her report, dated 16 July 2014, contained the following passages: "3. Further to this, Mr. Van Zwam's thought processes were logical and coherent in both form and content and thus, there was no evidence of formal thought disorder, such as tangential or delusional thinking, ideas of reference, hallucinatory experiences or a loosening of associations. . . . 53. Since being incarcerated on remand here in Australia, Mr. Van Zwam has experienced a catastrophic loss of coping, which has resulted in a notable decompensation in his functioning and mental health. Specifically, he has experienced, and is continuing to experience, distressing and debilitating symptoms of both anxiety and depression. Further to this, Mr Van Zwam's health has been poor since coming in to goal and this causes him ongoing concern. In fact, much of Mr. Van Zwam's distress seems to be associated with his fear that he will die in gaol away from his family and loved ones in a foreign country where he does not have any support." 1. On 19 July 2014 the applicant wrote an 8-page handwritten letter to Ms Jardim and Mr Covington in which he purported to set out the "facts". By this time, it appears that Niko, who had also been charged, had pleaded not guilty and had been acquitted. In the letter, the applicant referred to the difficulties of standing trial and the physical requirement to be up at 4am (to catch the prison truck) and return at 10pm or 11pm. He said that he had done it for two days (presumably 10 and 11 June 2014) and that he could not have endured it for ten days. He referred to his co-accused (Niko) as follows: "I'm happy for him. No hard feelings at all." 1. He wrote that it never crossed his mind that the contents of the suitcase could have been drugs and said: "If I thought it could have been drugs, why should I continue?? For 3000 US dollars? Ridiculous!!" 1. Further in the letter he wrote: "To protect myself I pleaded guilty. The best of the most worst scenario maybe. There is no other option. Nothing between! Pleading not guilty; jury -> find guilty? Penalty around 6-7 years. 16 months gone. No discount!! Pleading guilty likely penalty 5-7 years. Maybe 10% discount. Anyway it's for me the death sentence!!. I had no choice. What could I do? In my health situation there's no option. So sign it." 1. The applicant wrote another letter to Ms Jardim and Mr Covington on 14 August 2014, most of which concerned his family. However, it did contain the following: "I'm innocent. People took advantage from [sic] me and have set me up." 1. On 28 August 2014 Helen Shaw, another Legal Aid solicitor, who was covering for Mr Covington while he was on leave, sought approval to have the applicant examined by Dr Samuels, psychiatrist, on the question of fitness on the following basis: "[the applicant] has written a very bizarre letter, which makes us think he may be UNFIT." 1. On 23 September 2014 the applicant wrote another letter to Mr Covington, Ms Jardim and Ms Shaw. Much of the letter concerned matters to do with the applicant's family but it also included the following passage: "As I told you I pleaded guilty because the suitcase was in my possession." 1. The Legal Aid Commission made arrangements for the applicant to be examined by Dr Samuels in October 2014. In an email to Dr Samuels, Ms Shaw referred to the letter "which causes us great concern about his fitness". She continued: "The client has already pleaded guilty to importation of drugs, and the sentence date is 4 December. The letter he wrote makes us worry that his mental state has deteriorated and that he may not be fit." 1. Mr McLachlan informed the Court that no report from Dr Samuels was on the Legal Aid file. On 2 November 2014 the applicant wrote again to Ms Jardim and Mr Covington. He referred to an Audio Visual Link (AVL) conversation with them on 28 October 2014. In the letter of 2 November 2014, the applicant appears to have conducted a question and answer session with himself by posing a question and answering it immediately afterwards. The following passage is an example of this: "I did think at the time that the items in the suitcase may have been drugs? I then ignored this thought and proceeded to bring the suitcase to Australia. No, I didn't think that I did not ignore this thought. Why? If I thought it may have been drugs. Why continue? For 3000 US dollars? Never. I was never involved with drugs!!! . . . I had (have) a loop around my neck. I had no choice!! I choose the most worse scenario. Even so I'm not guilty yes, for possession. I was not willingly importing drugs." 1. On 4 December 2014 the applicant swore an affidavit for the sentence hearing in which he deposed as to his plea of guilty. Although he raised various physical concerns about his health and deposed as to his anxiety at being in custody and not obtaining adequate health care, he did not raise any matter in the affidavit which would undermine the soundness of his plea. 2. The sentence hearing was listed for 20 February 2015. It was adjourned to 8 May 2015 because the applicant had indicated that he wished to assist the authorities. The applicant spoke to the AFP to provide assistance on 13 April 2015 and 23 April 2015. He made a statement on 23 April 2015. 3. On 8 May 2015, the sentence hearing commenced. The sentencing judge was provided with a letter from the AFP which described the assistance which the applicant had given as of "medium value". His Honour adjourned the proceedings to 15 May 2015 in order to find out what was meant by that expression. On 15 May 2015 the matter was adjourned again to 18 June 2015. Another affidavit was prepared relating to the issue of the assistance which the applicant had provided to authorities, which was read on 18 June 2015, the date on which the applicant was sentenced. 4. Of the plea of guilty, the sentencing judge said in the remarks on sentence: "It was not until the first day of the trial that he was arraigned and entered the plea of guilty. The plea was accordingly entered at a very belated stage, and it was in the circumstances of what was detected, how it was detected, the content of the incoming passenger card and his assertions in relation to his luggage given to Customs officers, a strong Crown case. In respect of Commonwealth matters a discount for the plea is on the basis of the extent to which it facilitates the course of justice. In respect of this offender, not only was the plea a very belated one, it was also a recognition of the inevitable. Nonetheless, some discount for the facilitation of justice must be allowed." [Emphasis added.] 1. The sentence hearing proceeded on 18 June 2015, following which King DCJ imposed a sentence of 9 years with a non-parole period of 5 years and 6 months. The sentence is also the subject of an application for leave to appeal (as to which see below). 2. On 26 June 2015 the applicant lodged a notice of intention to seek leave to appeal against sentence only. He obtained various extensions of time from the Registrar of this Court to lodge his grounds of appeal, which were ultimately lodged on 18 July 2016. 3. On 19 April 2016 the applicant gave evidence on a voir dire in the Crown case against Andrew Smith. Mr Smith was an unrelated offender who was apparently involved with the same overseas-based persons as the applicant had been. The applicant was examined by the Crown about being interviewed at Sydney International Airport on 22 March 2013 and making a statement on 23 April 2015. The applicant swore that what he had said in his interview on 22 March 2013 and his statement on 23 April 2015 was true. He was cross-examined by Ms Orman-Halles, who appeared for Mr Smith. The applicant agreed with the propositions that he did not think he was going to be bringing drugs into the country and that he had always thought that he was transporting gold. Ms Orman-Halles directed the applicant's attention to 19 March 2013 when he and Niko had each received a suitcase, money for expenses and a visa for Australia. She put to him that at that point he was not suspicious of what was going on. The applicant responded: "A. I – I was suspicious. I asked him, "I want to see the gold", and then he said, 'No. You can't see it. It's sealed. You have to speed up because your plane is leaving." 1. On 28 June 2016 the Commonwealth Director of Public Prosecutions (CDPP) wrote to the applicant in respect of the evidence he had given in the trial of Mr Smith. He said: "A review of the evidence you gave on that occasion [19 April 2016] discloses that you gave an account which is potentially inconsistent with your previous plea of guilty. In the circumstances, you may wish to seek independent legal advice on your current position." 1. On 13 July 2016, the applicant filled out a notice of application for an extension of time to appeal against sentence in which he set out the reasons for not filing the notice of appeal earlier. He referred to, and attached, the letter from the CDPP in support of his application. It is not clear when, or whether, this document was filed. 2. On 18 July 2016 the applicant filed a handwritten document setting out his grounds of appeal in support of his application for leave to appeal against sentence. 3. On 5 September 2016 the applicant filed a document entitled "amended notice of appeal" which was said to be an appeal against his conviction as well as his sentence. 4. On 4 January 2017 the applicant swore a further affidavit. He deposed that he had always instructed his lawyers that he was not guilty of the offence and that he had no knowledge that the suitcase in his possession contained drugs. He deposed as to his health problems in custody leading up to the trial and that, at the time of the trial, he felt "broken and confused mentally". He deposed as follows: "8. I was given two documents. One was an Authority to plead guilty on the basis that I was reckless at the time I brought the bag into Australia as to whether it contained drugs. The other authority was to plead not guilty. I read them both. 9. I was crying. I said words to the effect "I must plead guilty for something I didn't do – it is very hard for me.' My legal representatives then left and I was taken up to the Court and entered a plea of guilty." 1. The applicant also deposed that the evidence he had given in the Crown case in Mr Smith's trial was true. He annexed the letter from the CDPP referred to above. He also deposed: "I had no knowledge that the suitcase contained drugs and wish to defend the charge against me at trial." The applicant's submissions 1. Mr McLachlan, who appeared on behalf of the applicant in this Court on the challenge to the conviction, accepted that there was no suggestion that the applicant had not been properly and adequately advised on the relative advantages and disadvantages, risks and rewards of pleading guilty or not guilty. He also accepted that there was no suggestion that there was anything which could reasonably have led Mr Covington or Ms Jardim to believe that the applicant was not in a fit state to make a decision whether to plead guilty or that the plea of guilty was in any way unsound. 2. Mr McLachlan did, however, submit that the applicant's subjective mental state at the time of the plea, as revealed subsequently, was such that it was appropriate to allow him to withdraw the plea and quash the conviction so that he could be tried by jury. He relied on [53] of Dr Seidler's report set out above in support of this submission. 3. It was submitted on behalf of the applicant that he entered his guilty plea in circumstances that gave rise to a miscarriage of justice, since he did not ever evince a true consciousness of guilt. Mr McLachlan submitted that it could not be concluded that the plea was one of "convenience" since the proposition that he entered the plea for some advantage could not be accepted. Mr McLachlan also contended that there was a real issue for trial and relied on Niko's acquittal. Consideration Relevant legislative provisions 1. The Code relevantly provides: "307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for life or 7,500 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c)." 1. The Code relevantly provides that an offence consists of physical elements and fault elements (s 3.1). Section 3.2 provides that in order for a person to be found guilty of committing an offence the following must be proved: "(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element." 1. Section 5.1(1) provides that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. Section 5.4 relevantly provides: "Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. . . . (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element." 1. It follows from the plea of guilty that the applicant relevantly admitted that he was aware of a substantial risk that the substance in his suitcase was a border-controlled drug; and that, having regard to the circumstances known to him, it was unjustifiable to take the risk. Applicable principles with respect to a challenge to conviction on the basis of a plea of guilty 1. The principles to be applied when there is a challenge on appeal to a conviction following a plea of guilty were summarised in R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 by Johnson J (Young JA and Latham J agreeing) as follows: "[32] This Court may quash a conviction entered upon a plea of guilty in thesentencing court if it is demonstrated that a miscarriage of justice will occur ifthe appellant is not permitted to withdraw the plea: R v Boag (1994) 73A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v The Queen[2009] NSWCCA 22 at [33] and following. [33] The onus lies upon the appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536 [16]–[23]. The appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 55 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. [34] The plea of guilty itself is a cogent admission of the ingredients of theoffence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v TheQueen [2009] NSWCCA 27 at [25]. [35] A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such groundsnevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions (NSW) (at 45–46)." Whether miscarriage of justice has been established 1. For the reasons set out below, I am not persuaded that the applicant has established that there would be any miscarriage of justice if he were not permitted to withdraw his plea. 2. The facts set out above show that the applicant pleaded guilty on the basis that he did not know that drugs were in the suitcase but that he was reckless as to their presence there. This was in accordance with the admissions made at Sydney International Airport when he arrived in Australia with the suitcase on 22 March 2013 to the effect that he was suspicious about drugs and asked to be shown the "gold dust" but was told that it was in sealed containers. His plea was also consistent with his evidence in the trial of Mr Smith, in which he adhered to the truth of his admissions; and his evidence under cross-examination that he was suspicious about the presence of drugs when he received the suitcase in the Ivory Coast. Although he later maintained his innocence, his insistence that he did not know that there were drugs in the suitcase was not inconsistent with his plea, which was entered on the basis that his mental state was recklessness (which was sufficient under the Code for guilt of the offence charged). 3. The benefit to the applicant of having the Crown accept the plea on the basis of recklessness rather than knowledge or intention was significant in the circumstances. In Smith v The Queen; The Queen v Afford [2017] HCA 19, the High Court considered the relative rarity of a mental state of recklessness in cases such as the present in the following passage from the joint judgment (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ): "[58] It may be accepted that, where a person takes an object into Australia, despite being aware of a real or significant chance that the object has a substance in it, the person cannot be regarded as meaning to take the substance into Australia unless the person's state of mind at the time of taking the object into Australia is that: "even if the substance is in the object, I am prepared to take the object into Australia". By contrast, if at the time of taking the object into Australia, the person's state of mind were: "although there is a real or significant chance of the presence of the substance in the object, I would not be prepared to take the object into Australia if I knew or believed that the substance is in the object", the person's mental state in terms of the Code would rise no higher than recklessness. But it must be emphasised that, although the latter is a theoretical possibility, in most cases it is most unlikely to occur. [59] Recklessness may be the right conclusion, for example, in the case of an honest tourist who, although being aware of the risk known to us all that strangers may sometimes slip a foreign substance into a tourist's luggage, does not have any particular reason to be concerned about the chance of the presence of a substance in his or her luggage, and, in that state of mind, brings his or her luggage into Australia without declaring any concerns. But, in cases like those the subject of these appeals, a mental state short of intent is highly unlikely because, if someone is aware of a real or significant chance that there is an extraneous substance in his or her luggage, and the person's state of mind is truly that he or she would not be prepared to take the substance into Australia if it were within the luggage, it is to be expected that the person would inspect the luggage to ensure that there is no substance in it, or at the very least declare his or her concerns to Customs upon arrival. Where, therefore, as in these appeals, a person is aware of a real or significant chance of the presence of an extraneous substance in an object which the person brings into Australia, and does nothing by way of inspection or declaration to avoid the risk of its presence, the circumstances of the case strongly suggest that the person's state of mind is, in truth, that he or she is prepared to proceed with bringing the object into Australia even if the substance is in the object; and thus that the person means and intends to import the substance. [60] Consequently, as was determined in Saengsai-Or and Cao, and accepted in Luong and Weng, where it is established in cases like this that an accused perceived there to be a real or significant chance of a substance being present in an object which the accused brought into Australia, it is open to infer on the basis of all the facts and circumstances of the case that the accused intended to import the substance." 1. There is evidence before the Court from the applicant as to his mental state at the time he instructed his lawyers that he wanted to plead guilty. I refer, in particular, to his affidavit of 4 January 2017 that he was "broken" and he was "crying" at the time. I do not accept this evidence as being consistent with the concession made on his behalf by Mr McLachlan that there was no outward indication to his legal advisers on 11 June 2014 that he was not fit to plead guilty. Moreover, his subsequent conduct in providing assistance to the Crown in Mr Smith's trial, in order to retain the discount on sentence, and the substance of his evidence on that occasion are not only consistent with the plea, but inconsistent with the suggestion that there has been a substantial miscarriage of justice. 2. One can glean from the applicant's correspondence with his lawyers extracted above that the applicant felt very aggrieved that he was regarded as a criminal, and incarcerated for many years, when his co-accused walked free after having pleaded not guilty. However Mr Covington foreshadowed this very scenario when he conferred with the applicant before receiving instructions to plead guilty. The sense of grievance must have been heightened when he was eventually sentenced, although the non-parole period was approximately what was predicted by his lawyers before the plea was entered. I am satisfied from the careful notes of Mr Covington that the applicant's decision to plead guilty was a considered one, and one which accorded with the admitted facts. I note that the sentencing judge, in the remarks on sentence, regarded the plea as "a recognition of the inevitable". 3. The letter from the CDPP dated 28 June 2016 appears to have engendered hope in the applicant that he would be permitted by this Court to withdraw his plea and appears to have been the reason for his application for leave to appeal against sentence. I am not satisfied that the statement contained in the letter that the applicant gave an account in R v Smith that was "potentially inconsistent" with his plea was correct. The evidence the applicant gave in R v Smith, which is set out above, was, in my view, consistent with his plea, which was entered on the basis that he was reckless as to the presence of drugs in the suitcase. 4. The evidence summarised above established that the applicant was carefully and comprehensively advised by Mr Covington and Ms Jardim about the relative advantages of pleading guilty and not guilty and the possible consequences of either course. His responses, as recorded by Mr Covington in his detailed file notes, showed that the applicant made a rational and conscious decision on 11 June 2014 not to "gamble". He was told that the difference between the sentence that would be imposed following a plea would be less, but not much less, than one were he to be convicted after trial. As was said in Meissner v The Queen (1995) 184 CLR 132 at 157: "It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud." [Footnotes omitted.] 1. In my view, the evidence establishes that the applicant's prime motivation for pleading guilty was to spend as little time as possible in custody in Australia so that he could return home to the Netherlands. He was, however, not prepared to "gamble" by subjecting himself to trial by jury and thereby losing the relatively small discount that could be expected for a plea at such a late stage. His subsequent conduct in providing assistance to the Crown in R v Smith was a further indication of his primary motivation. Mr McLachlan's concession on behalf of the applicant that there was nothing obvious to the applicant's then legal advisers (Mr Covington and Ms Jardim) that he was not capable of making a rational decision to plead guilty is also of significance. 2. Although there are indications that the applicant did not accept his guilt in later correspondence, I consider that these ought properly be understood as a refusal on the applicant's part to accept in his own mind that recklessness was a sufficient mental element to establish his guilt of the crime and that actual knowledge of the presence of drugs in the suitcase was not required. His refusal was understandable but does not, in my view, undermine the decision he made, on advice, to plead guilty. The expression of further grievances in correspondence can be explained by his dismay not only that the sentence ultimately imposed was greater than the "best case" predicted by Mr Covington, but also that Niko, who had pleaded not guilty, was acquitted. The letter from the CDPP, which ultimately led him to challenge the plea, appears to have been the last straw. 3. The applicant has failed to persuade me that the appeal against his conviction ought be allowed. Application for leave to appeal against sentence The applicant's grounds of appeal 1. The applicant was self-represented on his application for leave to appeal against sentence. He relied on the following grounds, which I have paraphrased: 1. the sentence was manifestly excessive; 2. the applicant's case had been incorrectly assessed by the sentencing judge; 3. he had been given inadequate credit for the assistance which he had provided to authorities; 4. insufficient regard had been paid to his mental and physical health; 5. insufficient weight had been given to the applicant's remorse and contrition; 6. the applicant's time in custody was made more onerous by his being in protective custody; 7. relevant material from Corrective Services had not been before the Court; 8. his co-accused, Niko, had been acquitted. 1. The applicant also relied on the role of his wife and submitted that his offending had amounted to a cri de coeur. He emphasised that he continued to study the Bible. The sentence hearing 1. As set out above, the sentence hearing was adjourned on several occasions. On each occasion, the applicant was represented by either Mr Covington or Ms Jardim. The Crown tendered the statement of agreed facts, which summarised the admissions made by the applicant to the AFP at Sydney International Airport on 22 March 2013. It also set out the following facts: "DRUG ANALYSIS 10. When AFP forensic scientists subsequently examined the suitcase in detail they discovered: a. three rectangular shaped packages were affixed with an adhesive glue to the interior of each half of the suitcase shell; b. the total six packages measured approximately 390mm in length, 110 to 230mm in height and 20 to 25mm in width. Each package was constructed with brown adhesive tape affixed around a clear plastic heat sealed bag; and c. Each package contained a bulk amount of an off-white crystalline material. 11. The total impure weight of the substance was 3971.7 grams. Subsequent tests on the crystalline material revealed that it contained between 78.7% and 80.3% pure methamphetamine. Applying those percentages to the gross amount of crystalline substance establishes that the total amount of methamphetamine concealed inside the suitcase equated to 3166.1 grams of pure methamphetamine. DRUG VALUE 12. As at March 2013, the wholesale value of this amount of impure methamphetamine [is estimated] to be between $794,340 and $992,925 and the street value of the impure amount of methamphetamine is estimated to be between about $2,383,020 and $2,780,190." 1. The Crown also tendered confidential material relating to the assistance which the applicant had given to authorities. 2. The applicant relied on the following documentary evidence which was tendered on 4 December 2014 in a folder, which included an index: his affidavit sworn 4 December 2014; a letter from the applicant's brother, Christian Van Zwam; the report of Dr Seidler dated 16 July 2014 (referred to above); an affidavit of Mr Covington sworn 3 December 2014 deposing as to the applicant's health problems in gaol and his need for cardiac treatment; the report of Associate Professor Holloway, the applicant's cardiologist; a letter from Emmaus Correspondence School, listing the courses completed by the applicant; a letter from the Chaplain at Parklea Gaol; and the hospital notes from Blacktown Hospital relating to the applicant's admissions. 3. The applicant did not give oral evidence at the sentence hearing and was not cross-examined on his affidavit. In his affidavit of 4 December 2014 he deposed: "112 I am ashamed of myself about what has happened. I was stupid and naïve. 113 I have shamed my family and everybody who knows me. I have remorse. I shame myself very deep. I am a burden on the Australian community. I'm very sorry for that. My behaviour has cost the Australian community a lot of money. I am very sorry for that." 1. When Ms Jardim referred to the applicant's affidavit of 4 December 2014, his Honour asked whether she was calling him, to which she responded in the negative. The sentencing judge said: "Those documents are of not particularly great weight." The remarks on sentence 1. The sentencing judge set out the facts from the statement of facts (which are reflected in the narrative above). His Honour noted that the applicant has no criminal record in Australia or in a number of other countries where he has resided: China, the Netherlands, Turkey or Gambia. 2. The sentencing judge described the quantity of the drug as "significant" and noted that it was four times the minimum commercial quantity and that its purity was high. His Honour described the role of the applicant as "physical importer" and "trusted courier". 3. His Honour emphasised the importance of specific and general deterrence in light of the fact that Customs cannot detect every importation and that importers adjudge the rewards to be gained to exceed the risk of detection. His Honour observed that the sentence imposed on the applicant was required to be sufficiently severe to have a genuine deterrent effect despite the financial incentives available to importers. He also referred to the "significant personal and social damage" caused by the distribution of illicit drugs in the community. 4. The sentencing judge referred to the applicant's plea of guilty and indicated that a discount for the facilitation of justice would be allowed. His Honour considered the confidential document prepared by Federal Agent Whelan dated 4 May 2015 and an affidavit affirmed on 15 June 2015 (which have been provided to this Court) regarding the assistance which the applicant provided to authorities. On the basis of the material tendered his Honour accepted Ms Whelan's description of the value of the applicant's assistance as "medium" was appropriate. The sentencing judge differentiated, as required, between past co-operation (s 16A(2)(h) of the Crimes Act 1914 (Cth)) and future assistance (s 21E of the Crimes Act). His Honour indicated that, without the plea and the assistance the sentence would have been 12 years and that, as to future assistance, he had reduced the sentence by one year. 5. When the sentencing judge came to referring to subjective matters, his Honour said: "In respect of the offender's affidavit, I note that the offender did not give evidence on sentence, and that documents of this nature tendered to the Court in the absence of sworn evidence are of little weight, just as are matters raised in psychological or psychiatric reports where the information relied on comes from the offender and is not independently verified by the author, as referred in particular in Qualtieri v R [2006] NSWCCA 95 and subsequent cases which have citied it with approval." 1. His Honour accepted much of the material tendered at the sentence hearing and recounted it in the remarks on sentence. The sentencing judge referred to the applicant's birth in the Netherlands in 1956; his education and work history. He noted that the applicant was first married in 1996, moved to Turkey and returned to the Netherlands in 2004 after his divorce in 2002. He subsequently moved to China. He worked at a university there and re-married. He established a language school with his wife but, after their divorce, he returned to the Netherlands. He subsequently moved to Gambia to marry for the third time. Although he intended to set up a bed and breakfast business and a hairdresser service with his wife, this did not eventuate. He exhausted his savings on the acquisition of property and other expenses. He was unable to find work in Gambia. 2. The sentencing judge recounted the applicant's health problems, which had been treated while he was in custody. His Honour accepted that the applicant has been in protective custody but noted that there was no evidence as to any particular hardships that had arisen from that form of custody. The sentencing judge referred to the evidence of complaints made by the applicant about the medical treatment which had been provided to him. His Honour concluded: "I have no doubt that if the offender has any further difficulty with his heart appropriate steps will be taken by Justice Health to deal with it. The repetition and reiteration of his claims to particular problems do not assist in being able to assess whether he has not been treated adequately or appropriately." 1. The sentencing judge referred to the material which established the applicant's religious studies while in custody. His Honour said: "Hopefully, his turning to religion will assist him in coping with his time in custody, and rehabilitation when released." 1. His Honour found that there were good prospects of rehabilitation and a low risk of re-offending. Of remorse and contrition, the sentencing judge said: "As to remorse and contrition, they are not evident from his failure to enter a plea until the first day of trial, nor are they evident from the circumstances where only after the commencement of the sentence hearing he finally elected to provide some assistance to the prosecution authorities. . . . To make it clear, on the basis of the material before me, and despite his assertions in his affidavit that he is ashamed of himself because he had shamed his family and everybody who knows him, that he is remorseful, and acknowledges that he has become a burden on the Australian community, in the absence of evidence on oath subject to cross-examination, I am unable to find any genuine evidence of remorse or contrition." The submissions on appeal 1. I propose to deal with grounds 1 and 2 last because they depend, in part, on matters raised in respect of other grounds. Ground 3: alleged inadequate credit for assistance to authorities 1. It appears from the remarks, that the applicant received a combined discount of 25% for the plea and assistance to authorities. His Honour referred to the correct statutory provisions and there is no indication that the assessment, which was pre-eminently one for his Honour, was erroneous. I am not persuaded that there was any error in this assessment in circumstances where the plea was late and the assistance was "medium". Ground 4: alleged insufficient regard to the applicant's mental and physical health 1. The sentencing judge devoted a substantial part of the remarks on sentence to the applicant's mental and physical health and his complaints about the treatment he received. The applicant has not identified any respect in which the sentencing judge failed to appreciate problems associated with his mental and physical health. Moreover, the weight to be attributed to any given sentencing consideration is part of the so-called "instinctive synthesis" required by the sentencing process: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 384-388 per McHugh J. Ground 5: failure to have regard to remorse and contrition 1. As submitted by the Crown, it is difficult to reconcile this ground with the applicant's challenge to his conviction on the basis that he ought be permitted to withdraw his plea of guilty. Nonetheless, as referred to above, his Honour expressly took account of the applicant's plea and included it in a combined discount with assistance to authorities. 2. Moreover, his Honour specifically referred to the applicant's affidavit before noting "the absence of evidence on oath subject to cross-examination". Although an affidavit is "evidence on oath", I do not apprehend any error in his Honour's description since, when the affidavit was tendered as part of a bundle of documents, Ms Jardim, who appeared for the applicant, confirmed that the applicant would not be called to give evidence, which his Honour, and presumably the Crown, appear to have taken to be an indication that the applicant was not prepared to subject himself to cross-examination on the affidavit. His Honour warned Ms Jardim that this course would affect its weight. 3. This Court has often criticised the use of untested self-serving statements by an offender in sentencing hearings. In R v McGourty [2002] NSWCCA 335 Wood CJ at CL said, at [24]-[25]: "So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to the psychologist. Recently this court has criticised the practice of placing material of this kind before sentencing judges, in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of the record: Regina v Qutami [2001] NSWCCA 353, at para 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ. I wholeheartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested." 1. This passage was cited with approval in R v Elfar [2003] NSWCCA 358 at [24]. The Court added at [25]: "The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports – (R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so." [Emphasis added.] 1. In the present case, the transcript does not reveal the Crown's attitude to the applicant's affidavit material. However, the sentencing judge, at the time of the tender, alerted Ms Jardim for the consequences for the applicant of his not being made available for cross-examination. Although there is a distinction between an affidavit, which, being sworn, can be evidence, and an unsworn statement, the distinction is irrelevant for present purposes. In my view, there is no material difference on a sentence hearing between the weight to be given to an affidavit where the deponent is unwilling to subject himself to cross-examination and the weight to be given to an unsworn statement or a statement to the author of a pre-sentence report. 2. However, the remarks on sentence show that the sentencing judge took into account the statements in the affidavit about the applicant's remorse and shame but was not satisfied that there was genuine remorse or contrition, having regard to all the evidence. No error has been shown in this finding, which, in my view, was open to his Honour. As remorse and contrition are mitigating factors in sentence, it was for the applicant to establish them on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. The sentencing judge was not obliged to accept the applicant's affidavit evidence, even in circumstances where he was not cross-examined by the Crown. 3. Since writing these reasons I have had the benefit of reading the reasons of Campbell J in draft and note Macfarlan JA's concurrence. The applicant is to be re-sentenced as at the date of the re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [44]. I have difficulty in accepting that it is open to this Court to find that the applicant was genuinely remorseful or contrite in circumstances where he sought to withdraw his plea of guilty in this Court; or to re-sentence him on that basis, whatever may have been the position before the sentencing judge, who sentenced the applicant following his plea of guilty. However, as mine is a minority view, it is neither necessary nor desirable to say anything further. Grounds 6: alleged failure to take into account protective custody and 1. The sentencing judge accepted that the applicant had been in protective custody, although the evidence tendered at the sentence hearing did not reveal the reasons for such custody. His Honour accepted, by way of judicial notice, that being in protection is a "more limited form of custody". This ground has not been made out. Ground 7: alleged absence of material from Corrective Services 1. The report referred to by the applicant in his written submissions is a report signed by the applicant on 10 September 2015 entitled Inmate Program Participation Advice. It advised the applicant as follows: "This Service has completed an assessment of your circumstances and has determined that there are no outstanding criminogenic factors in need of addressing. However, it is very important that you make positive use of the remainder of your time in custody, taking the opportunity to engage in educational courses and employment when available to you. Please note that when considering your release to parole, your institutional behaviour is reviewed and any institutional misconduct offences can impact on your release to parole." 1. As this material post-dated the sentence and is plainly relevant to parole, it cannot have been erroneous for the sentencing judge not to take it into account. In so far as the first paragraph extracted above is in the applicant's favour, it would appear to accord with the sentencing judge's finding that the applicant had good prospects of rehabilitation. Ground 8: the release of the co-accused, Niko 1. The acquittal and consequential release of Niko cannot bear on the applicant's sentence. No error has been shown. Ground 9: the role of the applicant's wife 1. If I have correctly discerned the applicant's grievance on this ground, it is that the sentencing judge ought to have taken into account his wife's materialistic demands as a mitigating factor on sentence. I am not persuaded that there was any error in the sentencing judge's approach. Ground 10: cri de coeur 1. It is not clear what the applicant meant by the expression cri de coeur as a ground of appeal. The literal meaning is "cry from the heart" but its usual meaning is an urgent, passionate request for help from someone in a dire situation. One possibility is that the applicant contended that his offending behaviour should be regarded as his own attempt to help himself extricate himself from a bad financial situation. The other is that his application for leave to appeal ought be regarded as a request for help, or leniency, from this Court on re-sentence. On either interpretation, the applicant has failed to identify error in the sentencing judge's approach. Ground 11: continuing Bible study 1. In the passage extracted above, the sentencing judge referred to the applicant's religious studies in the context, both of his time in custody and with respect to rehabilitation. His Honour had regard to this matter in sentencing the applicant. Grounds 1 and 2: alleged manifest excess and failure to assess the applicant's situation 1. The finding that a sentence is manifestly excessive is a conclusion which does not require the identification of a specific error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] per Gleeson CJ and Hayne J. It was not suggested by the applicant that his sentence ought not to have been a term of imprisonment. He contended that the sentence was too long. 2. The maximum penalty for an offence is a relevant guidepost as to the seriousness with which Parliament regards the offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The maximum penalty for the offence of importing a commercial quantity of a border controlled drug is life: s 307.1. This Court has repeatedly emphasised the importance of general deterrence; the relevance of the quantity of the drug; and the relative unimportance of prior good character, when sentencing drug offenders: R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72] per Johnson J (Macfarlan JA and R A Hulme J agreeing). 3. The courts of New South Wales and elsewhere see, in the cases that come before them, the terrible toll taken on individuals and the society as a whole by methamphetamine, also known as ice. Users who would not otherwise be violent commit horrendous assaults and homicides under the influence of the drug. Addicts break and enter the homes of others to gain access to readily saleable items to raise cash for its purchase to feed their addiction. Employees who work at consoles in service stations and late night convenience stores live in fear of those whose addiction to methamphetamine compromises their judgment to such an extent that they will commit armed robbery to obtain the next hit. Lives are lost; relationships are destroyed. The facilities available for rehabilitation are too few to accommodate those many members of the community who are in the thrall of this drug. But for the supply, there would be no demand. 4. Whatever subjective circumstances call out for leniency in a particular case, including the present, they are not to be given such weight as to overwhelm the need to deter those, such as the applicant, from deciding, through some misguided assessment of risks and rewards, to commit the crime of importation of this drug. The applicant's clean record, age and circumstances may well have been the reason he was selected for the task of importation. In all the circumstances, I am not persuaded that the sentence imposed on the applicant was manifestly excessive. Proposed orders 1. I propose the following orders: 1. To the extent required, extend the time for the filing of the notice of application for leave to appeal against conviction. 2. Grant leave to appeal against conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). 3. Dismiss the appeal against conviction. 4. Grant leave to appeal against sentence. 5. Dismiss the appeal against sentence. 1. CAMPBELL J: Like Macfarlan JA, I agree with Adamson J's reasons and proposed orders disposing of Mr Van Zwam's application for leave to appeal against his conviction. I agree with her Honour's reasons on sentence other than in respect of Ground 5. I agree with Macfarlan JA on Ground 5. 2. I would wish to add some comments of my own to what Macfarlan JA has written. There is a very significant difference between an affidavit, like the sworn statement read in these proceedings, and out of court statements by an offender, provided as history to a psychiatrist or other expert whose report is tendered in the offender's case in mitigation as a vehicle for providing the offender's account, which may be disputed. 3. This judgment does not provide the occasion to dwell upon the history of affidavit evidence. Suffice it to say that historically an affidavit was accepted as witness testimony in courts of equity, while common law courts took perhaps a more jaundiced view, declining to treat an affidavit as the equivalent of viva voce evidence: The King and Queen v Rachel Taylor (1691) Skin 403; 90 ER 179. Accordingly, the rule was that an affidavit could not be read in evidence in a common law court, although it could be used to contradict the witness as a prior inconsistent statement. 4. Times have changed of course, and evidence-in-chief not only in suits in equity or in commercial litigation, but also in civil proceedings in the Common Law Division, is very frequently directed to be given by affidavit or witness statement: r 2.3 Uniform Civil Procedure Rules 2005 (NSW). Affidavit evidence is very commonly received in the Court of Criminal Appeal often as, but not limited to, evidence of an offender's progress in custody in the event that it is necessary to resentence him or her. Even if the old common law rule inures in criminal proceedings, the proceedings below were sentence proceedings and no direction had been made under s 4(2) Evidence Act 1995 (NSW). 5. The important point for present purposes is that the affidavit was sworn testimony upon which the Crown was entitled to cross-examine once it was read in the proceedings, if the prosecutor so chose. I agree with Macfarlan JA that the learned sentencing judge was in error in the passage set out at [3] of Macfarlan JA's judgment. 6. None of this means that the sentencing judge was bound to accept the evidence contained in the affidavit any more than he would have been bound to accept oral testimony from Mr Van Zwam. But His Honour's failure to appreciate that the affidavit was evidence lead him into the error of acting on a wrong principle. In O'Neil-Shaw v R [2010] NSWCCA 42 Basten JA said (at [26] – [27]): Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course. It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response: R v SWC [2007] VSCA 201 ; 175 A Crim R 71 at [12]–[15] (Maxwell P, Kellam JA and Kaye AJA). Where there has been no cross-examination of witnesses to contest their evidence, "judges should in general abstain from making adverse findings about parties and witnesses": MWJ v R [2005] HCA 74 ; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ). 1. In written submissions dated 8 May 2015, that is, prepared after Mr Van Zwam's affidavit had been read in the proceedings, by reference to, inter alia R v Qutami (2001) 127 A Crim R 369 at [58] – [59], the Crown argued that "in the absence of evidence from the offender, limited weight should be given to self-serving statements made by the offender to probation and parole officers, psychologists and psychiatrists": WB p 243. No reference was made to the affidavit. The argument, of course, overlooked the consideration that there was evidence from the offender and the Crown failed to cross-examine on it. 2. In my opinion, in the absence of challenge or dispute by way of cross-examination, the learned sentencing judge was not entitled to reject the evidence of Mr Van Zwam, his Honour not having said he found it inherently implausible. I would not regard his Honour's comment at the point that the affidavit was read (WB p 94; Macfarlan JA at [2]) as "proper notice" of the type referred to by Basten JA in O'Neil-Shaw. At that point his Honour had not even read the material, and could make no assessment, with respect, of what weight should be attribute, in particular to the sworn statement contained in the affidavit without evaluating it in the light of all the evidence admitted on the tender of both parties in the proceedings on sentence. Resentencing 1. Error having been identified, it is incumbent upon the Court to exercise the sentencing discretion afresh: Kentwell v The Queen at 617-8 [42]. It is not necessary that the error identified be shown to be operative in the sense that, but for the error, a different sentence might have been passed below. Even so, it is clear from the passage identified by Macfarlan JA at [3] above, for what it's worth, that the error did affect the outcome. The necessary effect of House v The King (1936) 55 CLR 499; [1936] HCA 40 error is that the sentencing discretion has miscarried and it's the "duty" of the Court of Criminal Appeal to "exercise the discretion afresh" (Kentwell at 618 [42]). This is because the offender is entitled to be sentenced according to law (Kentwell 619 [44]). 2. The relevant facts, matters and circumstances relevant to the appropriate sentence in this case have been set out in the decision of Adamson J at [70] – [83] above and need not be restated here. 3. The applicant's offending was contrary to s 307.1 Criminal Code Act 1995 (Cth) and consisted of importing a commercial quantity of methylamphetamine into Australia. The relevant fault element was "recklessness". This offending carries a maximum penalty of imprisonment for life and/or a fine equivalent to 7,500 penalty units. A penalty unit was $170 at the date of sentencing and currently is $180. The amount is subject to indexation every 4 years. When Mr Van Zwam was sentenced the maximum fine was therefore $1,275,000. Currently it is $1,350,000. These maximum penalties are important guideposts for sentencing. 4. As the offender has been in custody since his arrest on 22 March 2013 in respect of this matter alone any sentence should be backdated until then. 5. It's relevant to record for the purpose of assessing the objective seriousness of the offending that the role of the offender in this drug importation was as a courier or trusted importer. The amount imported was 3.97 kilograms, having a purity of around 79 per cent, a wholesale value of around $900,000 and a street value of around $2.5 million. The amount was around five times the threshold for the commercial quantity. For his part in the operation, the offender was to be paid US$3,000 and expenses were met by the syndicate. As the learned sentencing judge observed (WB 119) "involvement at any level in the importation of drugs" is regarded as a serious offence: R v Pang (1999) 105 A Crim R 474 at 76. 6. The offender's motivation for his involvement was financial gain. However, on the evidence before the sentencing judge about the applicant's personal circumstances at the time he was drawn into the offending, I would characterise his motivation more as desperation than pure greed. 7. Given the damage done in our community by the insidious drug "ice", so well expressed by Adamson J at [103] above, the objective seriousness of the offender's offending cannot be regarded as insignificant. However, in my judgment it certainly falls well below the mid-range. I wish to say in this regard that the illicit drug trade and its consequences are not entirely governed by "supply side economics"; there are doubtless complex market forces at work. 8. As the learned sentencing judge also recognised, Mr Van Zwam's subjective case enjoyed some strength. Although his plea was late, he did provide assistance to the authorities which the learned sentencing judge assessed to be of medium value. By necessary implication, his Honour allowed a combined discount of 25 per cent for the assistance and the plea without expressing this proportion. Part of the allowance was in respect of future assistance and I record that on the evidence before this Court, the applicant complied with his undertaking to provide future assistance in another related trial. I would make the same allowances for these matters as the learned sentencing judge. 9. The sentencing judge also accepted that the offender had no prior criminal record in any of the countries in which he had formerly resided and was prepared to accept that otherwise than as indicated by this offending he was of good character. However, conventionally, his Honour thought that of limited value, given that apparent good character facilitated a courier obtaining entry to a foreign country for the purpose of the drug importation operation. I also agree with this analysis but emphasise that the offender's "otherwise good character' remains relevant: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21. 10. The learned sentencing judge referred to the applicant's medical health and in particular that he suffers from a cardiac condition. His Honour was satisfied, however, that appropriate treatment would be afforded to the applicant by Justice Health. There is no reason to disagree with that assessment. However doubtless specialist treatment is accessed easier in the community. 11. His Honour assessed the applicant's prospects of rehabilitation to be good and considered him to present a low risk of re-offending. These assessments were based upon his previous good character and his age. I interpolate it was somewhat odd then that his Honour felt unable to find any genuine evidence of remorse or contrition, leaving aside the error identified by Macfarlan JA. Normally "true remorse" is integral to "good prospects of rehabilitation": R v M.A.K., R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [41]. 12. For my own part, I accept the genuineness of the expressions of remorse or contrition, made at [112] – [113] of the offender's affidavit of 4 December 2014 (WB 144). In making this finding, I have borne in mind that there was no challenge to the affidavit by the Crown by cross-examination or otherwise. Given his prior good character and the circumstances in which he was drawn into this offending, I do not find those statements to be in any way inherently implausible. Indeed it strikes me as entirely plausible that a man of Mr Van Zwam's education and antecedents would be genuinely remorseful about his involvement in serious offending of this type. It is for this reason that his prospects of rehabilitation are good and his risk of reoffending is low. 13. I am satisfied that a lesser sentence than that imposed by the learned sentencing judge is warranted in law. 14. In approaching resentence, I have had regard, inter alia, to s 16A Crimes Act 1914 (Cth). I have borne in mind the principle that the sentence must be proportionate not only to the circumstances of the offender, but primarily to the seriousness of the offending. Proportionality for federal offences finds expression in s 16A(2)(k) by reference to "the need to ensure that the person is adequately punished for the offence". I have taken into account the plea of guilty to the extent to which it demonstrated a willingness to facilitate the administration of justice: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6; and the offender's co-operation with law enforcement agencies in accordance with s 16A(2)(h). 15. I accept that in sentencing for crimes of this nature, general deterrence must always be given due weight for the reasons expressed by Adamson J at [103] – [104] above. 16. In fixing the sentence I have had regard to the comparative sentences provided to the learned sentencing judge by counsel for the parties below (see WB 246 – 248; and WB 264 -265). I have borne in mind that at best they provide a yardstick against which the sentence I may impose can be measured. Reference to such a yardstick helps to promote consistency and in that regard, I have borne in mind that it is consistency of principle that the criminal law seeks to promote, not numerical equivalence: Hili v the Queen; Jones v the Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] – [49], [56]; Tak Fat Wong v the Queen (2001) 207 CLR 584 at 591 [6]. 17. Having regard to all of the facts, matters and circumstances relevant to this offending and this offender, I would have selected a starting point of 11 years, prior to discounting for his willingness to facilitate the course of justice and assistance to authorities. I would take the same approach as His Honour, "reducing" the sentence I would have imposed otherwise by a combined 25 per cent for these matters and imposing a term of imprisonment of 8 years and 3 months. Under s 19AB(1), as I have fixed a sentence which exceeds 3 years, I am required to specify a non-parole period which according to the general law is the minimum period that the offender must serve in custody which justice requires in the circumstances of the case. In my judgment, that period is 4 years and 6 months. The learned sentencing judge made a parole order for the offender's release "at the end of the non-parole period". With respect, this was beyond power. Under s 19AL Crimes Act it is for the Attorney-General to "either make or refuse to make, an order directing that the person be released from prison on parole". The sentence should commence on 22 March 2013 when the offender was taken into custody upon his arrest. 18. For these reasons, I agree with orders 1 to 4 of the orders proposed by Adamson J. In addition, I propose that these orders be made: 1. 5. Allow the appeal against sentence, quash the sentence passed in the District Court, and re-sentence the applicant as follows: 1. The offender is sentenced to imprisonment for a period of 8 years and 6 months commencing on 22 March 2013 and expiring on 21 September 2021; 2. Fix a non-parole period of 4 years and 6 months commencing on 22 March 2013 and expiring on 21 September 2017. ********** Amendments 09 June 2017 - Appeal book references deleted 13 June 2017 - Correction to coversheet 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: 13 June 2017