Cressel v The Queen

[2021] NSWCCA 26

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Cressel v R [2021] NSWCCA 26

Hearing dates:

1 March 2021

Date of orders:

8 March 2021

Decision date:

08 March 2021

Before:

Gleeson JA at [1]
Harrison J at [2]
Bellew J at [3]

Decision:

1. The time in which to file an application for leave to appeal is extended to 28 September 2020.

2. Leave to appeal is granted.

3. The appeal is allowed.

4. The sentences imposed in the District Court are quashed.

5. In lieu thereof, the applicant is sentenced as follows:

(a) In respect of count 2, imprisonment for 6 years and 6 months commencing on 29 April 2016 and expiring on 28 October 2022.

(b) In respect of count 1, imprisonment for 9 years commencing on 29 April 2017 and expiring on 28 April 2026.

(c) The total effective sentence is 10 years imprisonment.

(d) I impose a single non-parole period of 6 years imprisonment commencing on 29 April 2016 and expiring on 28 April 2022.

Catchwords:

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of importing a commercial quantity of a border controlled drug and one count of importing a marketable quantity of a border controlled drug – Where sentencing judge erred by failing to take into account the utilitarian value of the applicant’s plea of guilty – Error established – Where plea was entered at the first available opportunity – Where additional discount applied to reflect the applicant’s assistance to the authorities – Genuine remorse and good prospects of rehabilitation – Where applicant’s conditions of custody rendered more onerous as a consequence of an incident in custody which was no fault of the applicant – Applicant resentenced

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code 1995 (Cth)

Cases Cited:

Cotter v R [2020] NSWCCA 299

Diaz v R [2019] NSWCCA 216

Gwardys v R [2019] NSWCCA 62

Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266

Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Okafor v R [2007] NSWCCA 147

Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238

R v Amati [2019] NSWCCA 193

R v Barrientos [1999] NSWCCA 1

R v Bimendali [1999] NSWCCA 409; (1999) 109 A Crim R 355

R v Elfar [2003] NSWCCA 358

R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106

R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451

R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524

R v Si Thanh To [2007] NSWCCA 200; (2007) 172 A Crim R 121

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Weber v R [2020] NSWCCA 103

Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Kalvin Cressel - Applicant
Regina - Respondent

Representation:

Counsel:
A Parsons – Applicant
S Flood - Respondent

Solicitors:
Ren Zhou Lawyers – Applicant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s):

2016/132189

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2017] NSWDC 272

Date of Decision:

06 October 2017

Before:

His Honour Judge Scotting

Judgment

1. GLEESON JA: I agree with Bellew J.

2. HARRISON J: I agree with Bellew J.

3. BELLEW J: Kalvin Eugene Cressel (the applicant) pleaded guilty in the Local Court to the following offences:

1. importing a commercial quantity of a border controlled drug, namely cocaine, on or about 27 April 2016 (count 1);

2. importing a marketable quantity of a border controlled drug, namely cocaine, between about 29 April 2016 and about 3 May 2016 (count 2).

4. The offending in count 1 involved the importation of 3326.3kg of pure cocaine and was contrary to s 307.1(1) of the Criminal Code 1995 (Cth) (the Code). It carried a maximum penalty of life imprisonment and/or a fine of $1,350,000.00. The offending in count two involved the importation 1423.7kg of pure cocaine and was contrary to s 307.2 of the Code. It carried a maximum penalty of 25 years imprisonment and/or a fine of $900,000.00.

5. The applicant adhered to his pleas when he appeared before the District Court for sentence on 29 September 2017. On 6 October 2017 he was sentenced as follows:

1. in respect of count 1, imprisonment for 9 years to date from 29 April 2017 and expiring on 28 April 2026;

2. in respect of count 2, imprisonment for 6 years and 6 months to date on 29 April 2016 and expiring on 28 October 2022.

6. The sentencing judge fixed a single non-parole period of 6 years and 6 months to date from 29 April 2016 and to expire on 28 October 2022. [1]

   1. AB 33.

7. The applicant now seeks leave to appeal against those sentences on the grounds more fully set out below.

8. The applicant requires an extension of time in which to bring his application and in that regard relied upon his affidavit of 16 September 2020. [2] The Crown did not oppose an extension of time.

THE FACTS OF THE OFFENDING

2. AB 6-8.

Count 1

9. The sentencing judge found the facts of the of the offending in count 1 to be as follows: [3]

   3. ROS at [4]-[10]; AB 25-26.

[4] On 27 April 2016 an air cargo assignment consisting of multi-vitamin capsules arrived in Sydney from the United States of America. The consignee was Vanessa Tsiaras. Ms Tsiaras was friends with the offender. In March 2016 he had asked her if he could have a package sent from the USA to her address. On 4 April 2016 he asked her via Facebook if he could have a package sent to her address and she agreed.

[5] On 27 and 29 April 2016 the Australian Border Force (ABF) and the Australian Federal Police (AFP) conducted an examination of the consignment. It consisted of 25 labelled bottles in a cardboard box. Each bottle was sealed with foil. The bottles contained clear capsules with a white powder inside. The white powder tested positive for cocaine. The gross weight of the powder was 4913.3 grams. The cocaine tested as 67.7% pure, giving a pure weight of 3326.3 grams.

[6] A Controlled Operation Authority was issued to facilitate the delivery of the consignment. The cocaine was substituted with reams of paper of the same weight and delivered to the address of Ms Tisaras.

[7] The package was signed for by an occupant of the premises. A short time later, AFP officers executed a search warrant at the premises. At that time Ms Tisaras told them that the offender had asked her to receive a package on his behalf because he did not have an address where it could be delivered. At the direction of the AFP officers, Ms Tisaras made contact with the offender by Facebook to come and collect the package. The offender attended the premises at about 1.10pm and was arrested by the police.

[8] The police seized a Blackberry mobile device in the offender’s possession and the keys to his residence, which was in the same building. The police then executed a search warrant at those premises. Police located $2,500 in cash, 3 mobile phones, an iPad mini, electronic scales and the offender’s passport.

[9] At about 1.58pm the offender participated in an electronically recorded interview, in which he made a number of admissions. He told the police that he received the Blackberry from a friend and was told that he could make some easy money by following the instructions of a contact on the phone known as ‘Heavy Duty’. He received instructions from Heavy Duty by email. At first he was instructed to pick up large sums of cash and to deliver it to specified locations at specified times. He was then asked to provide addresses to which consignments could be delivered. He provided addresses and was then required to collect the consignments and receive instructions to give the package to a particular person. He did not tell the consignees what was coming, just that he wanted to receive a package from his family. He received $500 for receiving a package. He gave Heavy Duty Ms Tisaras’ details for the consignment. He would usually receive the tracking details for the packages 1 or 2 days before they arrived. He had checked the tracking on the consignment received by Ms Tisaras 2 days earlier. He was expecting another package that day. All of the packages were from the US and he believed Heavy Duty to be an American. He had also corresponded with a person known as ‘Divante’ whose role was to keep him on track and to mediate between him and Heavy Duty. He had previously collected a number of packages containing vitamin bottles, similar to the ones in the consignment. He unpacked them and then delivered them. He estimated that he had collected 5 consignments for Heavy Duty, and he assumed they all contained cocaine. In his conversations with Heavy Duty they used the terms ‘molly’, ‘blow’ and ‘nose’ to refer to MDMA and cocaine. He became involved because his financial position was not good. He expected to receive about $8,000 per week but in fact received about $3,000 per week. He was in debt to Heavy Duty and was repaying that debt by delivering the drugs.

[10] The offender gave the police the PIN codes for the electronic devices seized.

Count 2

10. The sentencing judge found the facts of the offending in count 2 to be as follows: [4]

    4. ROS at [12]-[15]; AB 26-27.

[12] At about 7.30pm on 29 April 2016, police acting on the information provided by the offender attended an address at Rushcutters Bay, being the address of Timothy Lala. The police recovered a missed delivery slip for a second consignment from Mr Lala.

[13] Mr Lala was a social acquaintance of the offender. About 3 weeks earlier the offender asked if he could have a package delivered to him from the offender’s parents and Mr Lala agreed. The offender thereafter made daily calls to Mr Lala to see if the package had been delivered. On 20 April 2016 Mr Lala received a package for the offender and he delivered it to him at a hotel.

[14] On 30 April 2016 ABF officers attended Fedex and took possession of the second consignment. It consisted of a cardboard box containing 6 bottles of horse shampoo. An x-ray found anomalies in 4 of the 6 bottles, which were later found to contain a white powder that tested positive for cocaine. The gross weight of the powder was 1966.5 grams. The cocaine tested 72.4% pure, giving a pure weight of 1423.7 grams.

THE GROUNDS OF APPEAL

Ground 1 – The learned sentencing judge erred by expressly failing to take into account the utilitarian value of the plea of guilty in accordance with Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1

The reasons of the sentencing judge

11. The applicant was sentenced on 6 October 2017 prior to the judgment of this Court in Xiao v R (Xiao)[5] which was delivered on 5 February 2018. In addressing the applicant's plea of guilty, the sentencing judge said the following: [6]

The offender pleaded guilty. For Commonwealth offences the Court must consider the offender’s willingness to facilitate course [sic] of justice and not the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]–[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58]. The Crown case was a strong one. The offender’s plea has saved the need for witnesses to be called at trial and that can be taken into account: Cameron at [79]. I am satisfied that the offender’s plea was an indication of his assistance to the authorities, an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.

5. (2018) 96 NSWLR 1; [2018] NSWCCA 4.

6. ROS at [43]; AB 32.

Submissions of the applicant

12. Whilst acknowledging that the approach taken by the sentencing judge to the applicant’s plea of guilty had been entirely in accordance with the law as it then stood, counsel for the applicant submitted that the sentencing judge had failed to take into account the utilitarian value of the applicant's plea of guilty and that in light of the decision of this Court in Xiao, as well as the subsequent decision of this Court in Jinde Huang aka Wei Liu v R (Liu),[7] such an approach reflected error. It was submitted that this was so, notwithstanding the 25% discount which was applied by the sentencing judge. [8]

    7. [2018] NSWCCA 70; (2018) 272 A Crim R 266.

    8. ROS at [47]; AB 33.

Submissions of the Crown

13. Whilst submitting that the sentencing judge had given “the right discount… for the wrong reasons", the Crown conceded that this ground of appeal had been made out.

Consideration

14. At the time of the applicant’s sentence, s 16A(2)(g) of the Crimes Act 1914 (Cth) (the Act) provided that one of the matters to be taken into account on sentence was an offender’s plea of guilty. In Xiao,[9] this Court concluded that s 16A(2)(g) required a sentencing court to take into account the utilitarian value of a plea of guilty. Section 16A(2)(g) of the Act was amended following the decision in Xiao, [10] and now requires a sentencing court to take into account not only the fact of the plea, but also:

1. its timing; and

2. the degree to which the plea, and its timing, resulted in any benefit to the community, any victim or any witness.

   9. At [269]-[278].

   10. See Schedule 8 of the Crimes Legislation Amendment (Sexual Crimes against Children and Community Protection Measures) Act 2020 (Cth) which came into force on 20 July 2020.

15. Following Xiao, this Court delivered judgment in Liu in which Bathurst CJ (with whom the other members of the Court agreed) said the following in relation to the operation of s 16A(2)(g):[11]

[9] Because somewhat divergent views have been expressed on the issues raised in this appeal, it may be of assistance to specify the approach which should be taken by sentencing judges in dealing with the utilitarian value of a plea of guilty in respect of Commonwealth offences having regard to the decision in Xiao v R and the judgment handed down in the present case:

(1) Sentencing judges should take into account the utilitarian value of a plea in Commonwealth sentencing offences. Failure to do so constitutes error.

(2) It is desirable that any discount given for the utilitarian value be specified. However, a failure to do so would not of itself constitute error.

(3) It is an error to specify a range of percentage discounts as distinct from a specific percentage.

11. At [9].

16. When dealing with the fact of the applicant's plea of guilty in the present case, the sentencing judge made no reference to, and did not take into account, the utilitarian value of that plea. Whilst his Honour approached the matter in accordance with the law as it stood at the time, the subsequent decisions of this Court in Xiao and Liu make it clear that such an approach is erroneous. That is so in the present case, notwithstanding the fact that if the utilitarian value of the applicant’s plea of guilty had been taken into account, the discount would, in all likelihood, have been 25% in any event. [12]

    12. Diaz v R [2019] NSWCCA 216 at [76] and following per Button J, Gleeson JA and Lonergan J agreeing.

17. It follows that ground 1 is made out. In those circumstances, this Court must re-sentence the applicant in the fresh exercise of the sentencing discretion. It is therefore not necessary to consider ground 2, but I have had regard to the submissions of the parties in respect of that ground on the question of re-sentence.

RE-SENTENCE

The Crown case

18. The facts of the offending as found by the sentencing judge have previously been set out and are not in dispute. However, the agreed statement of facts which was before the sentencing judge made reference to a number of matters over and above those expressly referred to by the sentencing judge, which are of some significance in assessing the applicant's role in the offending.

19. Examination of a Blackberry handset found in the applicant's possession when arrested revealed numerous encrypted text messages between the applicant and a person referred to as “Heavy Duty". In the course of those messages the applicant and Heavy Duty discussed: [13]

    13. Agreed Facts at [8]; AB 42-43.

1. the methodology of bringing drugs into Australia by postal consignment, and the importance of not divulging such methodology;

2. the provision, by the applicant to Heavy Duty, of false email addresses and false phone numbers in order to facilitate receipt of the packages;

3. the necessity for the applicant to acquire a set of scales;

4. the applicant’s responsibility for weighing, cutting, portioning and delivering the cocaine; and

5. the necessity to keep “100K AUD reserve…for lawyers and emergency issues”.

20. Following the applicant's arrest, police executed a search warrant on his residence and, in addition to the Blackberry device, seized a number of other items, including: [14]

    14. Agreed Facts at [19]; AB 47.

1. AUD $2,500.00;

2. a Samsung mobile phone;

3. an Alcatel One Touch mobile phone;

4. an iPhone;

5. an iPad; and

6. a set of electronic scales.

21. When interviewed by police the applicant made a number of admissions which included the following: [15]

    15. Agreed Facts at [20]; AB 47-48.

1. he had received the Blackberry device from a friend, who had told him to get in contact with Heavy Duty;

2. that friend had told him that “it's real easy, all you have to do is follow like the instructions and you'd be able to like make some money”;

3. he received instructions via email from Heavy Duty on the Blackberry device;

4. initially, the instructions he received related to picking up large amounts of money and then holding the money until he was instructed to deliver it at a specified time to a nominated location;

5. subsequently, Heavy Duty started asking the applicant for addresses to which consignments of drugs could be delivered;

6. when he received instructions from Heavy Duty that a package was coming in, he would provide addresses and names to Heavy Duty, before collecting the package upon delivery;

7. he would then receive instructions to give the package to a particular person, for which he would receive a AUD $500.00 in cash;

8. he also corresponded with a person called “Divante' who he knew from America, whose role was to “keep him on track in Australia and mediate between him and Heavy Duty”;

9. he believed the packages contained cocaine, to which he referred in his conversations with Heavy Duty as “molly," “blow" and “nose”;

10. he became involved in the venture because of his financial situation, and assumed that he was going to make a lot of money;

11. he initially thought that he would be making approximately at AUD $8,000.00 week, but it turned out to be approximately AUD $3,000.00 week; and

12. he owed a large amount of money to Heavy Duty which he was repaying by collecting and delivering the drugs.

The applicant's subjective case

22. The applicant is a citizen of the United States of America and is African American. He born on 26 December 1986. He was 29 years of age at the time of the offending and is now 34 years of age.

23. A report of Dr Peter Ashkar, Forensic Psychologist and Clinical Neuropsychologist, was tendered before the sentencing judge. The applicant told Dr Ashkar that he was “very bad with money" [16] and that he saw the offending as “an opportunity to make quick and easy money in light of [his] unstable financial position by collecting and delivering packages". [17] Dr Ashkar formed the view that the applicant demonstrated “a sophisticated understanding of the moral and ethical issues underpinning the illegality of his offending behaviour". [18]

    16. At [6]; AB 66.

    17. At [11]; AB 67.

    18. At [12]; AB 68.

24. The applicant told Dr Ashkar that he was deeply ashamed for the disappointment that he had caused his family as a consequence of his offences. [19] He specifically acknowledged that he “should have known better" but said that his arrest had given him the opportunity to make amends and provide focus. [20] The applicant also told Dr Ashkar that he had been working as a sweeper in custody and that he provided informal counselling to other inmates about substance use. [21] A Correctional Officer to whom Dr Ashkar spoke at the conclusion of the assessment described the applicant (but for one minor violation in custody) as a “model prisoner". [22]

    19. At [5]; AB 65.

    20. At [12]; AB 68.

    21. At [13]; AB 68.

    22. At [13]; AB 68.

22. The applicant's responses to testing administered by Dr Ashkar suggested a personality style that predisposed him to poorly controlled behaviour. [23] Dr Ashkar concluded that treatment targeting the applicant’s personality functioning would be vitally important for his rehabilitation, and for his psychological well-being generally. [24] Although not specifically stated, the general tenor of Dr Ashkar's opinion was that in circumstances where the applicant has close family ties, strong support and solid vocational resources, his prospects of rehabilitation were favourable, providing that he committed to, and engaged in, any necessary treatment.

    23. At [14]; AB 69.

    24. At [16]; AB 70.

23. The applicant did not give sworn evidence in the sentence proceedings but provided a letter addressed to the sentencing judge in which he made reference to the fact that the time of his offending he was a user of cocaine and was addicted to gambling. [25]

    25. AB 73-75.

24. An affidavit of the applicant of 24 February 2020 was read on the question of re-sentence in which the applicant detailed an incident which occurred in custody on 14 November 2020. In respect of that incident, it is sufficient for present purposes to note that, in accepting the applicant's unchallenged account of what occurred, he was subjected to serious racial vilification by a group of Correctional Officers. Following that incident, the applicant sought treatment from a Psychiatrist in custody, and underwent an assessment by Dr Milic, Clinical and Forensic Psychologist. In a report tendered before this Court, [26] Dr Milic noted that as a consequence of the incident the applicant had reported a number of symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder. [27] Dr Milic concluded that the applicant's mental health had been eroded because of the incident, which had rendered his time in custody more onerous. [28]

    26. Exhibit A.

    27. At 4.

    28. At 5.

25. The applicant’s father and mother provided a joint testimonial in which they described him as a respectful and positive person. [29] They pledged their ongoing support for him, stressing that he had, prior to his arrest, been a person of good character. They also made reference to the applicant's expressions of remorse to them, along with the fact that in their observation the applicant was highly motivated and focused on his rehabilitation.

    29. AB 76-77.

26. A testimonial from Rev Peter Baines, [30] a prison Chaplain at the Long Bay Correctional Centre, made reference to the fact that the applicant had been given a position of trust in custody as a sweeper and had also taken a leadership role in the Christian community within the gaol. Other testimonials made specific reference to the applicant's prior good character, his expressions of remorse, and his unconditional acceptance of responsibility for his offending. [31]

    30. AB 78.

    31. AB 80-85.

27. At the time of the applicant’s arrest, police had detected only the offending in count 1. Having made full admissions to the police as to his involvement generally, and his involvement in the offending in count 1 in particular, the applicant also disclosed the fact that a further package had been sent to Australia. The information he provided enabled the package to be seized by police following its arrival. [32]

    32. AB 49.

28. A copy of a letter of assistance provided to the sentencing judge was made available to this Court. That document confirms that the information provided by the applicant to police led to the identification and seizure of the package which is the subject of count 2. In providing that information, the applicant prevented a marketable amount of cocaine from being dispersed into the community. Other information provided by the applicant was assessed as being of low intelligence value, and overall, the assistance provided by the applicant was assessed by the police as being of “medium value”.

Submissions of the applicant

32. In written and oral submissions, counsel described the applicant’s role in the offending as “entirely expendable and replaceable". He submitted that the applicant had “no real managerial or decision-making authority”, and that although the offending was planned and premeditated, this was a common characteristic of offending of this nature. Counsel stressed that the applicant was “not at the top of the hierarchy", and pointed out that, unlike the position in many of the cases relied upon by the Crown for comparative purposes, the applicant had not travelled to Australia for the sole purpose of becoming involved in the offending, but had in fact been lawfully employed for a period following his arrival.

33. In addressing the applicant's subjective case, which counsel described as “very attractive", emphasis was placed upon:

1. the early plea of guilty;

2. the applicant’s assistance to authorities;

3. the absence of any prior convictions;

4. the applicant’s genuine remorse and contrition; and

5. the applicant's clear insight into his offending and his excellent prospects of rehabilitation.

Submissions of the Crown

34. Counsel for the Crown stressed the necessity to have regard to principles of general deterrence and denunciation in sentencing for offending of this nature. It was submitted that such considerations would generally outweigh subjective circumstances when determining the sentence, and that stern punishment was warranted in almost every case.

35. In terms of the offending generally, the Crown emphasised:

1. the applicant's role;

2. the fact that the two importations were not isolated; and

3. the planning and premeditation involved.

36. The Crown submitted that the applicant had performed a crucial role in the venture surrounding the importation. The Crown also submitted that the applicant obviously knew the approximate weight of the drugs in each package, and had involved himself in the importation because of an expectation that he would make money.

37. The Crown took no issue with the fact that the applicant had expressed genuine remorse, that his prospects of rehabilitation were favourable, and that he was a person of no prior convictions.

Consideration

38. Section 16A(1) of the Act provides that in determining a sentence for a federal offence, the Court must impose a sentence that is of a severity appropriate in all of the circumstances of the case. Section 16A(2) sets out a number of matters which must be taken into account, to the extent that they are relevant and known to the Court. Whilst the matters in s 16A(2) do not constitute an exhaustive list of relevant considerations, a number of them are applicable in the present case.

The nature and circumstances of the offence – s 16A(2)(a)

The need for adequate punishment - s 16A(2)(k)

39. The nature and circumstances of the applicant's offending have been set out. [33] The seriousness with which the Parliament views such offending is reflected in the prescribed maximum penalties. [34] This Court has previously observed that significant punishment must be imposed upon those persons who choose to offend in this way. [35]

    33. See [9]-[10] above.

    34. R v Bimendali [1999] NSWCCA 409; (1999) 109 A Crim R 355 at 362; Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31].

    35. See for example R v Si Thanh To [2007] NSWCCA 200 at [12] per Hulme J; (2007) 172 A Crim R 121.

40. The amount of the drug, although obviously not determinative, remains a significant factor on the question of sentence. [36] That significance will be greater if an offender is aware of that amount. [37] In respect of count 1, the amount of the cocaine was more than 1½ times the commercial quantity of 2kg. In respect of count 2, the amount was more than 700 times the marketable quantity of 2g. Moreover, in light of the content of the exchanges between the applicant and Heavy Duty, [38] I am satisfied that the applicant was generally aware of the amount of cocaine which was the subject of each importation.

    36. The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [32]-[37], [45].

    37. Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 607-608; [2001] HCA 64.

    38. See for example, the conversation on 13 April 2016 set out in the Agreed Facts at [8]; AB 43.

41. Any consideration of the nature and circumstances of the offending, and the need for adequate punishment, must necessarily include an assessment of the role played by the applicant. In considering that issue, the focus must be upon what the applicant did. [39]

    39. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19].

42. Having provided Heavy Duty with the necessary (false) details of the consignee in each case, the applicant had the sole responsibility for facilitating the receipt of the packages following their arrival in Australia. In other words, he had the sole responsibility for effecting the actual importation in each case. Whether the applicant’s role was, as counsel submitted, “expendable and replaceable” is not to the point. The simple fact is that the applicant chose to perform that role for financial reward.

43. Further, the applicant’s various exchanges with Heavy Duty make it clear that in performing that role, he engaged in planning and premeditation to a significant degree. The fact that he had no decision-making responsibility himself, and took instructions from Heavy Duty, does not, of itself, lead to a conclusion that he should be regarded as having a lower level of responsibility. [40] His role which was an indispensable one which facilitated international drug trafficking on a significant scale. Whilst I accept that the applicant has strong subjective circumstances which I have discussed below and which must be taken into account, it is necessary that there be reasonable proportionality between any sentence imposed, and the serious objective gravity of the applicant’s offending. [41]

    40. R v Nguyen; R v Pham [2010] NSWCCA 238 at [72] per Johnson J (Macfarlan JA and R A Hulme J agreeing); (2010) 205 A Crim R 106.

    41. R v Amati [2019] NSWCCA 193 at [120] per Johnson J and the authorities cited therein.

The applicant’s plea of guilty - s 16A(2)(g)

44. There is no dispute that the applicant pleaded guilty when the charges were before the Local Court. Bearing in mind the decisions in Xiao and Liu, that plea carries with it significant utilitarian value. A discount of 25% is appropriate.

The applicant’s contrition – s 16A(2)(f)

45. As I have already noted, the applicant did not give sworn evidence before the sentencing judge but wrote a letter for his Honour's consideration. Such a course has consistently been the subject of disapproval by this Court. [42] In the circumstances, I place little weight on the contents of that letter. That said, there is considerable evidence of the applicant's expressions of remorse and I am satisfied that those expressions are genuine.

The applicant's cooperation with law enforcement agencies in the investigation of the offence or of other offences - s 16A(2)(h)

42. See for example R v Elfar [2003] NSWCCA 358 at [25]; Cotter v R [2020] NSWCCA 299 at [50]; Weber v R [2020] NSWCCA 103 at [63].

46. I have set out the nature and extent of the applicant’s co-operation. [43] In addition to his admissions, the applicant volunteered information which, at the time, was not known to the police and which enabled the offending in count 2 to be detected. Needless to say, the applicant was not under any obligation to disclose that information. An additional discount of 10%, over and above that allowed for the plea of guilty, is appropriate to reflect the applicant's past co-operation to the authorities.

Personal deterrence - s 16A(2)(j)

43. See [30]-[31] above.

General deterrence - s 16A(2)(ja)

47. In light of the subjective materials which I have referred to, there appears to be little need for any sentence to incorporate a measure of personal deterrence.

48. General deterrence, however, is a different matter, and is factor which has long been recognised as important when sentencing for offending of this nature. [44] The difficulty in detecting offending of this type, and the great social consequences that follow from it, means that general deterrence is to be given considerable weight on sentence. Any sentence imposed must signal to those who might be tempted to offend in this way, that the potential financial rewards to be gained are neutralised by the risk of severe punishment, and that any involvement, at any level, in a venture of this kind will necessarily result in the imposition of a significant sentence. Were it otherwise, the necessity for general deterrence would not be served. [45]

The character, antecedents, cultural background, means and physical or mental condition of the offender – s 16A(2)(m)

44. R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 at [57]-[58].

45. See Gwardys v R [2019] NSWCCA 62 at [49] per Bellew J (Payne JA and Campbell J agreeing) citing R v Nguyen; R v Pham at [72].

49. The applicant's subjective circumstances have been previously summarised. He is a person of no prior convictions, and a person of previous good character generally. His behaviour on this occasion appears to be entirely aberrant. Whilst these matters must be taken into account, it has also been consistently recognised that good character is not an unusual characteristic of persons who become involved in this type of offending. [46] As a consequence, the applicant’s prior good character is a matter to be given less weight as a mitigating factor on sentence. [47]

    46. Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238 at [49].

    47. R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221 at [20]-[25]; (2005) 153 A Crim R 451.

50. In terms of the applicant's psychological condition, the report of Dr Ashkar is in my view of limited significance. However, that is not the case in terms of the more recent report of Dr Milic. The incident to which the applicant was subjected to whilst in custody, which was not the result of any misbehaviour on his part, must have been particularly troubling for him. It has resulted in the onset of Post-Traumatic Stress Disorder. The applicant’s symptoms following the incident were of sufficient severity to cause him to seek psychiatric intervention. His conditions of custody have clearly been rendered more difficult and onerous than would otherwise have been the case. That is a factor of some significance which I have taken into account on sentence.

Prospects of rehabilitation – s 16A(2)(n)

51. It is clear from the evidence to which I have referred that the applicant has made good use of his time in custody. That is reflected in (inter alia) the fact that he occupies a position of responsibility as a sweeper. I am satisfied on the whole of the evidence of his prospects of rehabilitation are favourable, and that he is unlikely to reoffend.

ORDERS

52. The Crown referred the Court to sentences imposed in a number of other cases involving the importation of narcotics. I do not propose to address those cases in any detail as I did not find them of any real assistance. There were, as might be expected, various differences between each of those cases and that of the applicant, as to both objective and subjective circumstances.

53. I have had regard to the principle of totality, and consider that there should be some accumulation between the two sentences to be imposed.

54. I propose the following orders:

1. The time in which to file an application for leave to appeal is extended to 28 September 2020.

2. Leave to appeal is granted.

3. The appeal is allowed.

4. The sentences imposed in the District Court are quashed.

5. In lieu thereof, the applicant is sentenced as follows:

1. In respect of count 2, imprisonment for 6 years and 6 months commencing on 29 April 2016 and expiring on 28 October 2022.

2. In respect of count 1, imprisonment for 9 years commencing on 29 April 2017 and expiring on 28 April 2026.

3. The total effective sentence is 10 years imprisonment.

4. I impose a single non-parole period of 6 years imprisonment commencing on 29 April 2016 and expiring on 28 April 2022.

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Endnotes

Amendments

08 March 2021 - Correction to cover sheet

Decision last updated: 08 March 2021