DGF v The Queen
[2021] WASCA 4
•12 JANUARY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DGF -v- THE QUEEN [2021] WASCA 4
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 23 SEPTEMBER 2020
DELIVERED : 12 JANUARY 2021
FILE NO/S: CACR 72 of 2019
BETWEEN: DGF
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CORBOY J
File Number : INS XXX of XXXX
Catchwords:
Criminal law - Sentence appeal - Importation of a commercial quantity of a border controlled drug in contravention of s 307.1(1) of the Criminal Code (Cth) - Whether sentencing judge erred in assessment of combined discount afforded for appellant's guilty plea and co-operation - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Crimes Act 1914 (WA), s 16A
Criminal Code (Cth), s 307.1(1)
Result:
Leave to appeal on grounds 1 and 2
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T F Percy QC & J Byrne |
| Respondent | : | P N Bevilacqua |
Solicitors:
| Appellant | : | Butlers Lawyers & Notaries |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
A Child v The State of Western Australia [2007] WASCA 285
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Beins v The State of Western Australia (No 2) [2014] WASCA 54
Director of Public Prosecutions (Cth) v Afford [2017] VSCA 201
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Director of Public Prosecutions (Cth) v Omar [2019] VSCA 188
Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546
Gaskell v The State of Western Australia [2018] WASCA 8
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
HSV v The State of Western Australia [2020] WASCA 5
Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380
Klomfar v R [2019] NSWCCA 61
Kyuldzhiev v The Queen [2019] WASCA 162
Medan v The Queen [2011] WASCA 142
Moore v The State of Western Australia [2006] WASCA 121
MSO v The State of Western Australia [2015] WASCA 78
Ng v The Queen [2010] NSWCCA 232
Ngo v The Queen [2017] WASCA 3
R v Agboti [2014] QCA 280; (2014) 246 A Crim R 72
R v Baldock [2010] WASCA 170; (2010) 243 FLR 120
R v Banker [2016] QCA 74
R v Calis [2013] QCA 165
R v Frias [2019] NSWDC 365
R v Gallagher (1991) 23 NSWLR 220
R v Gladkowski [2000] QCA 352; (2000) 115 A Crim R 446
R v Jain [2004] VSCA 30
R v Jimson [2009] QCA 183
R v Mokoena [2009] QCA 36; [2009] 2 Qd R 351
R v Ng [2012] WASCA 180
R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Rosso Bernando [2017] QCA 6
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v Thathiah [2012] QCA 195
R v Tran [2007] QCA 221; (2007) 172 A Crim R 436
R v Zalapa [2018] NSWCCA 191
Speer v The Queen [2004] NSWCCA 118
Stipkovich v The Queen [2018] WASCA 63
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
Tang v The Queen [2020] WASCA 194
The State of Western Australia v Tran [2008] WASCA 183
Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1
JUDGMENT OF THE COURT:
Overview
This is an appeal against sentence.
In 2019 the appellant was convicted, on his plea of guilty, of one count of importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code (Cth). The maximum penalty for that offence is life imprisonment or a fine not exceeding $1,575,000 or both. In 2019 the appellant was sentenced to 6 years and 3 months' imprisonment with a non-parole period of 4 years. The sentence was backdated to the date that the appellant was arrested.
The appellant seeks leave to appeal against his sentence on three grounds. Ground 1 in effect alleges that the sentencing judge erred in the exercise of his discretion with respect to a combined discount allowed to the appellant for his plea of guilty and past co-operation. Ground 2 contends that the head sentence of 6 years and 3 months' imprisonment was manifestly excessive. Ground 3 alleges that, if not persuaded that either ground 1 or ground 2 individually led to a miscarriage of justice, the accumulation of the errors alleged in grounds 1 and 2 led to a miscarriage of justice.
For the reasons that follow we would grant leave to appeal on grounds 1 and 2 but refuse leave on ground 3. We would, however, dismiss the appeal. In respect of both the combined discount and the head sentence the sentencing disposition was not outside the range of a sound exercise of the sentencing discretion.
The circumstances of the offending
In recounting the circumstances of the offending and the appellant's personal circumstances some circumspection is required. More details are contained in a confidential schedule which will be provided to the parties but otherwise not be published. In the interests of the due administration of justice it is appropriate to outline sufficient background to allow a proper understanding of the basis for the determination of the appeal while ensuring that the identity of the appellant is not readily ascertainable.
No issue was taken with the sentencing judge's findings as to the circumstances of the offending and the appellant's personal circumstances. Accordingly, what follows in those two respects, both here and in the confidential schedule, is drawn substantially from the sentencing judge's remarks.
The appellant imported approximately 1.3 times the commercial quantity of a border controlled drug into Australia. The value of the border controlled drug was estimated to be between approximately $500,000 and $1,800,000.
The sentencing judge accepted that the appellant's role in the importation was to act as a courier. The sentencing judge also found that, while the appellant said he did not know what drug he was bringing into Australia or the quantity of the drug, the appellant must have known that it was a substantial quantity of an illegal drug with a significant value.
The sentencing judge found that, among other things, the appellant's participation in the importation was the result of drug use, impaired judgment, the offer of a substantial financial reward and fear caused by threats.
The appellant's personal circumstances
The appellant was in late middle age at the time of his offending. He has a significant medical condition that requires ongoing medication. The appellant had no prior criminal history. A number of character references were provided to the sentencing judge. The references spoke highly of the appellant's previous good character including his work ethic and the way in which he had conducted his professional and personal relationships. The appellant also provided a letter to the court in which he expressed his remorse as to the offending.
The sentencing disposition
The sentencing judge described the applicable sentencing principles for an offence of this type in orthodox terms. So too his Honour described the approach and factors relevant to fixing a non‑parole period. No complaint is made in either respect. Accordingly, it is not necessary to repeat those matters. In relation to s 16A of the Crimes Act 1914 (Cth), the sentencing judge expressly identified that the matters he considered to be relevant in sentencing the appellant were those matters referred to in s 16A(2)(a), (e), (f), (g), (h), (j), (ja), (k), (m) and (n).
In terms of the issues raised on appeal, the relevant s 16A(2) matters included:
1.The fact that the appellant had pleaded guilty to the offence (s 16A(2)(g)).
2.The degree to which the appellant had co-operated with law enforcement agencies in the investigation of the offence and other offences (s 16A(2)(h)).
The sentencing judge addressed the nature and circumstances of the appellant's offending. His Honour observed that the appellant was involved in the importation of a substantial quantity of a border controlled drug with a high level of purity. The sentencing judge accepted that the appellant's role was that of a courier but made the self-evident observation that couriers play a significant - indeed essential - role in most drug importations.
In relation to mitigating factors, the sentencing judge found that:
1.The appellant pleaded guilty at the first reasonable opportunity. However, the Crown's case was strong. The sentencing judge accepted, nonetheless, that the guilty plea saved the Crown and the community the expense of conducting a trial and freed up court resources. It also provided certainty of outcome to the Crown and the community for a very serious offence.
2.The appellant was entitled to the benefit of past good character subject to the circumstances of his offending. The sentencing judge observed, however, that the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor. The nature of the offence is such that general deterrence was the most important sentencing consideration.
3.There was no real risk of the appellant offending in this way again. Personal deterrence was not a significant factor.
4.The appellant was genuinely remorseful for his offending and the effect that it had on the community.
5.The appellant had not previously been sentenced to any term of imprisonment.
Other mitigating factors as found by the sentencing judge are recounted in the confidential schedule.
The sentencing judge referred in detail to the extent of the appellant's co-operation with law enforcement officers. This is referred to in the confidential schedule.
The sentencing judge accepted that there had been, and would continue to be, some risk to the appellant's personal safety as a result of his past co-operation.
The sentencing judge found that the appellant was entitled to a significant discount on account of his past co-operation. His Honour stated that he would discount the appellant's sentence by approximately 40% in combination for the appellant's plea of guilty and his past co‑operation. That was the reduction that, in the sentencing judge's view, appropriately recognised those two factors but also ensured that the sentence he imposed still reflected the seriousness of the appellant's offending.
The sentencing judge referred to comparable cases. In doing so his Honour referred to identification of a starting point. There is a difference between the transcript of the sentencing remarks and the published sentencing remarks. At the appeal hearing it was accepted that, inadvertently, part of what the sentencing judge had said in his oral sentencing remarks had been omitted from the published sentencing remarks. That conclusion is self-evident from the comparison of the transcript of the oral sentencing remarks and the published sentencing remarks. The sentencing judge explained that he intended to state the sentence that he would have imposed, taking into account all relevant sentencing factors other than the plea of guilty and the past co-operation, and then indicate the reduction in the sentence on account of the plea and on account of the past co-operation. The sentencing judge would then indicate the non-parole period.
The sentencing judge stated that he would have imposed a sentence of 10 years and 6 months' imprisonment (ie this was the sentence that would have been imposed absent the plea of guilty and the appellant's past co-operation). However, that was reduced on account of the plea of guilty and the past co-operation to a head sentence of 6 years and 3 months' imprisonment (a discount of slightly greater than 40%). The sentencing judge imposed a non-parole period of 4 years' imprisonment and backdated the sentence to commence from the date that the appellant was remanded in custody.
On appeal it was accepted that this court should infer that the sentencing judge must have identified an initial starting point, ignoring all mitigating factors, of around 12 years' imprisonment and then - having provided a discount for all matters of mitigation other than the plea of guilty and the past co-operation - arrived at a term of imprisonment of 10 years and 6 months. The sentencing judge then reduced the 10 years and 6 months for the remaining matters of mitigation - the discount of approximately 40% on account of the plea of guilty and the past co-operation. This resulted in the head sentence of 6 years and 3 months' imprisonment.[1]
[1] Appeal ts 6 - 11.
Grounds of appeal and the parties' contentions
The appellant's application for leave to appeal was filed 71 days out of time. The application for an extension of time within which to appeal, together with the application for leave to appeal, were referred to the hearing of the appeal. The appellant's delay in making the application for leave to appeal is adequately explained and was not suggested to cause any prejudice. We would grant the application for an extension of time. The application for leave to appeal turns on the merits of the proposed grounds of appeal.
The appellant's grounds of appeal read:
1.The learned sentencing Judge erred in the exercise of his discretion with respect to the assessment of the combined discount to be allowed in respect of the Appellant's early plea of guilty and the cooperation he provided to authorities.
2.The learned sentencing Judge erred in law by imposing a sentence that was manifestly excessive having regard to the circumstances of the case, in particular; the circumstances of the offending, the Appellant's age and ill health, the onerous conditions of the Appellant's incarceration and the sentences generally imposed for this type of offending.
3.In the event that the Court was not persuaded that either of the matters set out in Grounds 1 or 2 individually had led to a miscarriage of justice, the accumulation of the errors alleged therein has led to a miscarriage of justice.
No written submissions were directed to ground 3. Similarly, senior counsel for the appellant made no oral submissions in support of ground 3 at the appeal hearing. Senior counsel stated only that there were two difficulties with the sentence as imposed: first, the combined discount; second, whether the sentence was manifestly excessive.[2] We would read ground 2 and its reference to 'the circumstances of the case' as also including the plea of guilty and the past co-operation. In the absence of any reference to ground 3 in submissions, and in circumstances where senior counsel for the appellant only referred to 'two difficulties', it is only necessary to consider grounds 1 and 2. Ground 3 adds nothing and may be put aside. We would refuse leave to appeal on ground 3.
[2] Appeal ts 5.
The appellant contended that if ground 1 was made out it necessarily followed that the sentence imposed of 6 years and 3 months' imprisonment was manifestly excessive.
In support of ground 1 the appellant argued that the combined discount of 40% for the plea of guilty and the past co-operation was inadequate. The appellant referred to various authorities and contended, by way of general proposition, that the combined discount for a plea of guilty and past co-operation customarily ranged from 20% to 50% with some exceptional cases seeing a discount of up to 60%. Senior counsel for the appellant characterised the guilty plea as 'very valuable' and submitted that there would be nothing unreasonable in relation to a discount of 25% in respect of the plea alone. Senior counsel went on to submit that even greater weight ought to be attached to the appellant's co-operation. It was contended for the appellant that the co-operation was at the 'very highest end' and ought properly to be characterised as exceptional.
In written submissions the appellant relied on the circumstance that he was at high risk of violent retribution for his co-operation. Further or in the alternative, it was submitted that the appellant's time in custody would be more onerous than for a sentenced offender in the general prison population.
Ground 2 asserted an implied error. In substance the appellant contended that the sentencing judge imposed a sentence that was manifestly excessive when proper regard was had to the appellant's medical condition, his 'advanced age' and the potentially onerous circumstances of the imprisonment the appellant might experience by virtue of his age, medical condition and past co-operation. The appellant contended that his prior good character and personal circumstances ought to have provided further mitigation than that which had been reflected in the sentence as imposed by the sentencing judge.
Senior counsel for the appellant confirmed that ground 2 was solely directed to the head sentence of 6 years and 3 months' imprisonment. There was no independent challenge to the non-parole period.[3]
[3] Appeal ts 21.
The respondent contended that the sentence of 6 years and 3 months' imprisonment with a non-parole period of 4 years' imprisonment was appropriate taking into account all relevant sentencing factors including the plea of guilty and the past co‑operation.
Applicable legal principles
Appellate intervention in respect of sentence
On countless recent occasions, without seeing the need to recite authority given that the propositions are so well established, this court has stated to the effect that:
1.Sentencing is a discretionary exercise. That discretion is of fundamental importance. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. An appellate court can intervene only if the appellant demonstrates either an express or implied material error.
2.Express error involves acting on a wrong principle; for example, by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error.
3.In determining whether a sentence for an individual offence is manifestly excessive, the sentence should be viewed in light of: (a) the maximum penalty for the offence; (b) the standards of sentencing customarily imposed with respect to the offence; (c) the place that the criminal conduct occupies on the scale of seriousness of offences of that type; and (d) the offender's personal circumstances.
4.The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion in a particular case. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
5.When an appellate court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not, of itself, fix the upper or lower limit of the range.
The grounds advanced by the appellant allege implied error. Accordingly, the appellant must demonstrate that the sentencing outcome was not open to the sentencing judge in the proper exercise of his Honour's discretion. That applies equally to the appellant's challenge by ground 1 (as to the alleged inadequacy of the combined discount) and the challenge by ground 2 (as to the alleged excessiveness of the length of the sentence). In both cases it must be shown that the exercise of the sentencing judge's discretion resulted in an outcome that was unreasonable or plainly unjust.[4]
[4] That this is the position in respect of the discount is confirmed in MSO v The State of Western Australia [2015] WASCA 78 [67].
In considering the standards of sentencing customarily observed with respect to a federal offence, it is necessary for this court to have regard to the relevant range of sentences established across all Australian States and Territories for offending of that type.[5] In dealing with appeals against sentences passed on federal offenders it is necessary for there to be consistency of decisions throughout Australia.[6] Consistency is achieved by the proper application of the relevant statutory provisions having proper regard to what has been done in other cases, and why it was done, and the work of the intermediate courts of appeal.[7]
Offence of importation of a border controlled drug
[5] Tang v The Queen [2020] WASCA 194 [106].
[6] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [57].
[7] Hili v The Queen [18], [56].
The general sentencing principles applicable to federal offences are set out in div 2 of pt 1B of the Crimes Act. Among other things:
1.By s 16A(1), in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
2.By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court.
Subject to limited statutory exceptions, s 16A requires an instinctive synthesis of the relevant and known considerations.
Section 16A of the Crimes Act accommodates the application of common law sentencing principles. For example, the totality principle is accommodated in s 16A even though it is not specifically referred to. However, s 16A does not permit generalisations to be made across all forms of federal offences about how individual sentences are to be fixed.[8]
[8] Hili v The Queen [25].
Well-known sentencing considerations for drug offences were outlined by Buss JA (as his Honour then was) in R v Ng:
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[9]
[9] R v Ng [2012] WASCA 180 [34]. This passage has been adopted on many times subsequently. See eg Stipkovich v The Queen [2018] WASCA 63 [28]; Kyuldzhiev v The Queen [2019] WASCA 162 [64]; Tang [116].
The reference to the nature and level of the offender's participation in drug dealing within a particular organisation requires additional elaboration. The court has emphasised that it is important to recognise that the characterisation of the offender's role, where possible, must not obscure an assessment of what the offender did.[10] An offender is sentenced not for his or her role or place in a hierarchy but for a particular dealing with a particular drug at a particular time.[11]
[10] Gaskell v The State of Western Australia [2018] WASCA 8 [129]; HSV v The State of Western Australia [2020] WASCA 5 [39].
[11] Moore v The State of Western Australia [2006] WASCA 121 [17].
A fuller exposition of the relevant sentencing considerations is found in Kyuldzhiev v The Queen.[12] Kyuldzhiev also recognises that, although an offender who is a courier is not to be equated with the organiser of a drug importing enterprise, couriers are a vital link in the importation and subsequent distribution of drugs in Australia.[13]
[12] Kyuldzhiev v The Queen [33] - [36]. See also at [38], [64]. The appellant also made reference to Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 [267] and R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106 [70] - [72].
[13] Kyuldzhiev v The Queen [63].
The parties referred the court to a number of authorities that were said to be broadly comparable. Those authorities are best addressed when dealing with the grounds of appeal.
Discount for plea of guilty and past co-operation
At the material time, the factors mentioned in s 16A(2) of the Crimes Act to be taken into account where relevant and known to the sentencing court included:
(g)if the person has pleaded guilty to the charge in respect of the offence - that fact;
(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) amended s 16A(2)(g), but the amendment did not commence until 20 July 2020.
Plea of guilty (s 16A(2)(g)
When sentencing for federal offences, a sentencing judge must take into account the fact of a plea of guilty.
A plea of guilty may be seen as evincing relevant personal circumstances of the offender by way of mitigation. It will, in some cases, evidence the offender's contrition or remorse for the offending. It may also, in some cases, demonstrate the offender's acceptance of responsibility for his or her actions and a willingness to facilitate the course of justice. Those subjective circumstances of the offender may be contrasted with the objective or 'utilitarian benefit' of a plea of guilty. A plea of guilty, of itself and irrespective of whether it also reflects such subjective circumstances on the part of the offender, spares the community the expense of a trial - allowing scarce public resources to be applied to other matters - and equally spares victims and witnesses the experience of a trial. A plea of guilty assists in the administration of justice irrespective of whether it also provides evidence of contrition or remorse and other subjective matters by way of mitigation.[14]
[14] Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546 [1].
In many cases, but not all, the sentencing discount outcome will be unaffected by whether the sentencing considerations engaged by the plea of guilty are informed by one or both of the subjective and objective rationales.[15] In those cases where there is a difference, it is accepted that the objective utilitarian benefit of a plea of guilty must be taken into account pursuant to s 16A(2)(h).[16] The court is not limited to considering only the subjective motivation for the plea.[17]
[15] Director of Public Prosecutions (Cth) v Thomas [5], [7(g) - (h)], [149].
[16] Director of Public Prosecutions (Cth) v Thomas [7(b)], [44], [149]; Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1 [278].
[17] Xiao v R [269], [271] - [272].
Under the Commonwealth regime, there is no requirement to expressly quantify the discount to be allowed for a plea of guilty.
In its written submissions the Crown referred to the decision of Medan v The Queen where it was noted that an early plea of guilty routinely attracts a discount in the order of 20% - 35%, depending on the circumstances. The amount of the reduction is discretionary. However, the reduction should not be so excessive as to undermine the accusatorial aspect of the criminal justice system.[18]
[18] Medan v The Queen [2011] WASCA 142 [113]. (However, in R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 there was mention of 25% - 35%: [52].)
When considering the utilitarian value of a plea of guilty, the primary consideration is the timing of the plea. The earlier the plea the greater the discount. However, the particular circumstances must be taken into account. In some cases a late plea might have greater than usual benefits due to the likely length and complexity of the trial.
It has been said that the strength of the prosecution case has no bearing upon the discount to be allowed for the utilitarian benefit of the plea.[19] In many cases, however, the strength of the Crown case will be a relevant matter to be taken into account. It may be seen as informing the sentencing considerations so far as there is allowance for the willingness to facilitate the course of justice; and also the offender's remorse or contrition for the offending. The strength of the prosecution case may inform whether the guilty plea was a recognition of the inevitable as opposed to being motivated by contrition or remorse and willingness to facilitate the course of justice.[20]
Co-operation with law enforcement agencies (s 16A(2)(h))
[19] Director of Public Prosecutions (Cth) v Thomas [5]. However, contrast (in the context of sentencing for State offences) Beins v The State of Western Australia (No 2) [2014] WASCA 54 [58]; Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [58] - [61]; Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380 [26].
[20] Director of Public Prosecutions (Cth) v Thomas [5].
The co-operation referred to in s 16A(2)(h) is past co-operation. Section 16AC provides separately for any reduction in sentence in relation to an undertaking to provide future co-operation.
Past co-operation within s 16A(2)(h) may include one or both of self-incrimination or the incrimination of others.[21] It could extend to useful information or assistance to a law enforcement agency of any kind. Co-operation of this kind may benefit the community at large but, excluding cases of self-incrimination, may place the co-operating offender in a position of danger or hardship. The public interest served by s 16A(2)(h) is to encourage offenders to co-operate with law enforcement agencies. Thus this sentencing factor is engaged even if the co-operation does not demonstrate contrition or remorse[22] - that, in any case, being separately provided for under s 16A(2)(f).
[21] R v Gladkowski [2000] QCA 352; (2000) 115 A Crim R 446 [11].
[22] See by analogy The State of Western Australia v Tran [2008] WASCA 183 [12].
It should, however, be recognised that the benefits of the public policy evinced by s 16A(2)(h) are unlikely to ensue without substantial inducement by way of discount to the sentence that would otherwise be appropriate. A substantial discount must be given and be seen to be given where an offender provides substantial and valuable co-operation to law enforcement authorities thereby putting himself or herself at risk or causing himself or herself hardship.[23]
[23] R v Gladkowski [7]. See also The State of Western Australia v Tran [12], [75].
There is no standard percentage discount for past co-operation. The weight to be given to past co-operation must be determined in the exercise of discretion having regard to all of the circumstances of the individual case. Factors to be taken into account include:
1.The nature and extent of the co-operation - a consideration which might, in an appropriate case, encompass both quantitative and qualitative matters; for example, as to the latter, the accuracy, reliability and timeliness of any information provided by the offender.
2.Whether the co-operation is genuine; for example, information which is knowingly false could attract no discount.
3.Whether the offender discloses all that he or she knows - full and frank assistance will ordinarily result in a more substantial discount than partial assistance.
4.The benefit that has resulted or is expected to result from the co-operation - ordinarily the more useful or potentially useful the information or assistance the greater the discount.
5.The risk or danger of retributive violence to the offender or the offender's family.
6.Hardship which the offender may be placed in or may undergo as a result of co-operation; for example, whether the offender may have to serve his or her sentence in more onerous conditions than the general prison population because he or she will be in some form of protective custody.
The sentencing judge must ensure that any reduction does not result in a sentence that is an affront to community standards[24] (understood in light of the public interest that informs s 16A(2)(h)). The overriding statutory imperative is that the sentencing judge must impose a sentence that is of a severity appropriate in all the circumstances of the offence.[25] Accordingly, any discount so as to take into account a matter of past co-operation within s 16A(2)(h) cannot result in a sentence which is not of a severity appropriate in all the circumstances of the offence, in terms of s 16A(1).
[24] R v Gallagher (1991) 23 NSWLR 220, 232; R v Gladkowski [9]. See also, by analogy given that it concerns sentencing for a state offence in New South Wales, SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 [4] - [5].
[25] Crimes Act s 16A(1).
The sentencing judge is not required to quantify a specific discount for past co-operation and may simply take the extent of past co-operation into account as part of the instinctive synthesis of all relevant matters. The authorities do, however, refer to various discount ranges. In written submissions the parties referred to many of the authorities in which discount ranges have been stated. Out of deference to the parties' submissions it is appropriate that we mention the main authorities to which the court was directed.
In R v Baldock, a case involving a federal offence, Buss JA (as his Honour then was) stated:
As Keane JA (de Jersey CJ & MacKenzie J agreeing) noted in R v Sittczenko; Ex parte DPP (Cth), it is well-established that substantial discounts in sentencing should be allowed to recognise the value of an offender's cooperation with law enforcement agencies, and that these discounts may be up to a third or even a half of the otherwise appropriate sentence. His Honour then added:
However, as McPherson JA recently pointed out in R v Brady; Brindley & Shale, discounts of that size are exceptional and are usually appropriate only in those cases where co-operation places a person at personal risk of severe retribution from other criminals. When arriving at the appropriate level of discount in each case, the court must consider the value of an informer's co-operation and the risk to the personal safety of the informer, while ensuring that 'the reduction does not result in a sentence which is an affront to community standards'.
Compare the views as to the potential size of discounts for cooperation expressed in The State of Western Australia v Tran in the context of State offences.[26] (citations omitted)
[26] R v Baldock [123].
The State of Western Australia v Tran concerned a State offence. Miller JA said that there was no tariff for a discount for a plea of guilty and assistance.[27] His Honour referred to earlier authority in this court where it was said that the discount 'may be as much as 50%, or even more'.[28] Referring to A Child v The State of Western Australia,[29] Miller JA said that discounts for co-operation can be 'as high as two‑thirds'.[30]
[27] The State of Western Australia v Tran [75].
[28] The State of Western Australia v Tran [76]. See also R v Baldock [6].
[29] A Child v The State of Western Australia [2007] WASCA 285.
[30] The State of Western Australia v Tran [80].
Turning back to R v Baldock, Buss JA went on to refer to R v Sukkar[31] where the Court of Criminal Appeal in New South Wales considered cases in that State where discounts had been granted for pleas of guilty and past co-operation. R v Sukkar concerned a federal offence and is thus of present significance. The court there concluded that, while there is no fixed tariff, discounts customarily ranged between 20% and 50% and that, generally speaking, a discount of 50% was regarded as appropriate to assistance of a 'very high order' (while acknowledging the comparatively rare cases where there had been a 55% or 60% discount).[32]
[31] R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151.
[32] R v Sukkar [5], [54].
Buss JA emphasised that in R v Sukkar Howie J (McLellan CJ in CL agreeing) expressed the opinion that discounts for a plea and assistance of more than 40% should be 'very exceptionally, if at all, granted' in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population.[33] Buss JA also reproduced with apparent approval Howie J's statement that:
It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact.[34]
[33] R v Baldock [124] (referring to R v Sukkar [5]).
[34] R v Baldock [124] (referring to R v Sukkar [5]).
Shortly after R v Sukkar was SZ v The Queen. In SZ v The Queen - this time in respect of a non-federal offence - the range in R v Sukkar was referred to with approval while acknowledging that a combined discount of more than 50% might be called for in an exceptional case.[35] More recently, in Z v R, the view was again expressed that, in general, a single combined discount should be given for both a plea of guilty and assistance and that such a discount should not normally exceed 50%.[36] However, in that case the New South Wales Court of Appeal went on to emphasise that sentencing should not be conducted on the basis that there is some implied algorithm which establishes that a discount for assistance cannot exceed a particular figure.[37]
[35] SZ v The Queen [46] - [48], [52] - [53]. See also [3].
[36] Z v R [2014] NSWCCA 323 [27].
[37] Z v R [34], [46].
Even apart from the emphasis in the authorities to the circumstance that there is no fixed tariff for past co-operation - and the importance given to recognition that a sentencing judge is involved in a discretionary exercise which must be sensitive to all the circumstances of the offence and the public interest which informs s 16A(2)(h) - some care must be taken when considering or applying discount ranges.
On occasions it is suggested that the discount for co-operation reflects two underlying principles: first, as already mentioned, the benefit that thereby accrues in the investigation, detection and successful prosecution of crime; second, as an unequivocal and practical demonstration of genuine remorse and rehabilitation.[38] If the latter aspect is taken into account separately, as part of the sentencing disposition as a matter that is relevant and known in imposing a sentence of a severity appropriate in all the circumstances of the offence, any discount range requires more nuanced evaluation and potentially some adjustment. The discount range already incorporates an allowance for contrition or remorse and rehabilitation as inherent in the plea and assistance. A sentencing judge must be astute to avoid double counting.
[38] See eg The State of Western Australia v Tran [77] (referring to A Child v The State of Western Australia [12]).
As Gleeson CJ explained in R v Gallagher:
It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.[39]
[39] R v Gallagher (228). See also (233).
In New South Wales the Court of Appeal has said that it will often be appropriate that there be a single combined discount for both a plea of guilty and assistance to the authorities.[40] That view has been expressed because of the significant overlap between a plea of guilty and past co-operation in terms of the factors reflected by the plea of guilty, contrition, rehabilitation and assistance. The ranges provided for in R v Sukkar and The State of Western Australia v Tran, as discussed previously, concerned such a combined discount. Such considerations may explain, in part, the approach of the sentencing judge in the present case.
[40] SZ v The Queen [3], [44]; Z v R [27].
If, however, separate discounts are applied to reflect both a plea of guilty and past co-operation, the sentencing judge must be mindful of the combined effect of the two discounts.
Where a separate discount is provided for a guilty plea there is less scope to provide a large reduction for assisting authorities.[41] There is only 'limited room to discount a sentence without going below the bottom line'[42] - that bottom line, in the present context, being a sentence of a severity appropriate in all the circumstances of the offence. Thus the application of one discount for one purpose will impact on the extent to which another discount can be applied to achieve a different purpose.[43]
Disposition: the challenge to the combined discount of 40% for the plea of guilty and past co-operation (ground 1)
[41] See by analogy SZ v The Queen [9].
[42] SZ v The Queen [6].
[43] See by analogy SZ v The Queen [6].
In substance, the appellant's contention is that the 40% combined discount provided by the sentencing judge was not sufficient having regard to well-established principles and the substantial value of his early plea of guilty and past co-operation.
The appellant referred to three authorities said to be comparative cases. One was a New South Wales decision involving a State offence.[44] Another was a first instance sentencing decision from another jurisdiction, albeit for a federal offence.[45] In accordance with the legal principles previously referred to, those two authorities are of little assistance in identifying the standards of sentencing customarily observed with a federal offence. The final decision was R v Baldock. There, at first instance, the offender was allowed a 40% discount for co-operation. On appeal, in determining the appropriate sentence, Pullin JA and Kenneth Martin J would have allowed a discount of 25% for early pleas of guilty and 40% for future co-operation.[46] Buss JA identified that the sentencing judge made a specific error in applying a composite discount for past co-operation and promised future co-operation.[47] In resentencing, in the absence of evidence to the effect that the offender would suffer more onerous conditions than the general prison population as a result of his co-operation, Buss JA considered that a discount of 20% for the promised future co-operation would be just - inferring that half of the sentencing judge's composite discount related to past co-operation.[48]
[44] Z v R (McCallum & Garling JJ allowed a 50% discount; Hoeben CJ at CL would only have allowed a 40% discount. Unusually, however, the offender pleaded not guilty to the two most serious offences. Thus the discount was for assistance rather than a combined discount for a plea and assistance).
[45] R v Frias [2019] NSWDC 365 (40% combined discount for plea of guilty and assistance - the assistance being characterised as of 'medium value').
[46] R v Baldock [51] - [53], [67].
[47] R v Baldock [181].
[48] R v Baldock [187].
Little assistance can be derived from R v Baldock. A single case cannot establish the combined discount customarily imposed for a plea of guilty and past co-operation; and, in any case, R v Baldock was not a case where either the majority or Buss JA provided for a combined discount. Moreover, there are two distinguishing factors from the present case. First, the co-operation in R v Baldock also involved future co-operation in the form of an undertaking to give evidence against others. Second, in R v Baldock the relevant offending and co‑operation concerned white collar crime. As the appellant submitted, there might well have been a significantly lesser risk of violent retribution than in the present case.
While, for these reasons, we consider the appellant's three so‑called comparative cases to be of no real assistance to the disposition of ground 1, we accept that the authorities referred to in [55] - [60] provide useful guidance when understood in the context of the further matters we have referred to. We also accept that:
1.The appellant's plea of guilty was a valuable plea which deserved a substantial discount. It was a plea given at the first reasonable opportunity which was consistent with contrition and remorse and a willingness to facilitate the course of justice. Nevertheless, the prosecution case was - as the sentencing judge correctly observed - a strong one.
2.The past co-operation provided by the appellant was also valuable and deserved a substantial discount. In that regard the sentencing judge found, and we accept, that there had been and would continue to be some personal risk to the appellant as a result of his co-operation.
There was some debate between the parties as to the proper characterisation of the appellant's past co-operation. The appellant referred to it as 'exceptional'. The respondent pointed out that the co‑operation was in the nature of intelligence, being information rather than the giving of evidence, with the latter leading to a greater risk of identification and retribution. In our view, ground 1 ought not to turn on the adjectival description to be attributed to the appellant's past co‑operation. The sentencing judge seemingly accepted the description of the appellant's assistance as provided by the relevant law enforcement agency. We see no need to substitute some other characterisation to describe the nature of the appellant's co-operation. Nor, however, ought the appellant's co-operation be downgraded by a priori reasoning to the effect that its nature gave rise to a lesser risk of retribution: the sentencing judge accepted that there was and would be some risk to the appellant's personal safety. So far as the co-operation had led to practical results, there was a real risk of identification and possible retribution.
The respondent also argued that there was a degree of speculation on the part of the appellant as to the risk of retribution. That ignores the sentencing judge's express finding that there was some risk. There was ample basis for the sentencing judge to infer that there was some risk of retribution.
There was, however, an absence of direct evidence before the sentencing judge as to whether the appellant would suffer hardship in the sense of enduring more onerous imprisonment conditions than the general prison population. In the absence of such evidence the sentencing judge made no findings in this respect. Based on his Honour's finding that the appellant would continue to be at some risk to his personal safety due to his past co-operation - and in all the circumstances - we infer that the appellant will probably endure more onerous conditions than the general prison population while imprisoned. Beyond the most general of observations, in the form just made, on the evidence before the sentencing judge it was not and is not possible to assess the specific degree to which the appellant is likely to be subjected to more onerous conditions while imprisoned as a result of his co-operation.
One further difficulty with the appellant's submissions in support of ground 1 is that it presupposes that the appellant ought to have received a 25% discount for the plea of guilty. Viewed in that prism a further discount for the past co-operation of a mere 15% might well be seen as inadequate. However:
1.There was no entitlement to a 25% discount. The appellant's submissions assume that he ought to have received a 25% discount for the early plea of guilty. Having regard to the strength of the prosecution case it was open, in the exercise of the sentencing judge's discretion, to allow a lesser discount. The sentencing judge was not bound, in the circumstances, to reduce the sentence he would otherwise have imposed on the appellant by 25% on account of the plea of guilty.[49]
2.As the sentencing judge stated:
You [referring to the appellant] will receive a significant discount, approximately 40%, in the sentence that I shall impose for a combination of your plea of guilty and your past co-operation. That is the reduction that, in my view, appropriately recognises those factors to which I have referred, but will also ensure that the sentence that I impose still reflects the seriousness of your offending. (emphasis added)
[49] See Ngo v The Queen [2017] WASCA 3 [33].
Three further considerations arise in relation to ground 1.
First, so far as the authorities reveal a typical range for a combined discount for a plea of guilty and past co-operation, the discount of 40% as provided was within the range. This is of some, albeit limited, guidance to whether the outcome was open to the sentencing judge in the proper exercise of discretion. The range is merely a reference point and does not establish that a discount of 40% was unreasonable or plainly unjust in this particular case.
Second, there is danger in the present context in focussing too much on the percentage discount articulated by the sentencing judge. The percentages can be misconstrued or taken out of context. For example:
1.Let it be assumed that the sentencing judge applied a 20% discount for the early plea of guilty to his Honour's starting point (after allowing for all other matters of mitigation) of 10 years and 6 months' imprisonment. That 20% discount would equate to approximately 2 years and 1 month, reducing the notional sentence to 8 years and 5 months' imprisonment. The further discount for past co-operation, to result in the final sentence of 6 years and 3 months' imprisonment, would be 2 years and 2 months. In that event, the further reduction of 2 years and 2 months for past co-operation would represent approximately 25% of the sentence of 8 years and 5 months' imprisonment that would have been imposed absent that past co-operation. It is far from obvious that a 25% discount for the appellant's past co-operation was unreasonable or plainly unjust.
2.A greater combined discount may nevertheless result in a greater sentence where a sentencing judge began with a higher initial starting point or a higher starting point taking into account all relevant sentencing factors before allowing for the plea of guilty and the past co-operation. Similarly, a lenient 'starting point' in either respect may necessitate a lesser combined discount so as not to result in a sentence that is not of a severity appropriate in all the circumstances of the offence within s 16A(1) of the Crimes Act.
The instinctive synthesis that informs an appropriate sentencing disposition is not achieved by algorithm or mathematics. Ultimately, while ground 1 is a stand-alone ground of appeal, it should be appreciated that challenging the combined discount as expressed in percentage terms only goes so far. In practical terms the combined discount for the plea and past co-operation as provided by the sentencing judge resulted in what would otherwise have been a sentence of 10 years and 6 months' imprisonment being reduced to a sentence of 6 years and 3 months' imprisonment. There was a reduction of 4 years and 3 months' imprisonment. There ought to be consideration of whether this reduction was manifestly inadequate - in the sense that it was unreasonable or plainly unjust - in all the circumstances including the notional starting point of 10 years and 6 months' imprisonment after allowing for all other relevant sentencing factors.
Third, the sentencing judge's notional starting point of 10 years and 6 months' imprisonment was arrived at after allowing for all relevant sentencing factors other than the plea of guilty and the co‑operation. It was accepted that his Honour's initial starting point, ignoring all mitigating factors, was a term of imprisonment of around 12 years. In coming to the starting point of 10 years and 6 months' imprisonment there was thus a significant allowance for the other mitigating circumstances as specified in [14] above. The sentencing judge provided a substantial allowance for contrition and remorse, the appellant's prior good character and those matters which informed the assessment that the appellant presented a low risk of re-offending (other factors mentioned as mitigating circumstances not being of significant weight).
The acknowledged inter-connectedness between the sentencing considerations underpinning a plea of guilty, co-operation and contrition justifiably result in a slightly lower combined discount for the plea and co-operation where, as here, there was a separate and significant allowance for mitigating circumstances that include contrition and remorse.
Standing back, and considering all the circumstances as a whole, we are not persuaded that the reduction of 4 years and 3 months' imprisonment on account of the early plea and co-operation was unreasonable or plainly unjust. The plea and co-operation were deserving of a substantial discount. To our mind, considering the circumstances as a whole, the reduction of 4 years and 3 months was a substantial discount. It was open to the sentencing judge, in the proper exercise of his sentencing discretion, to view the reduction as an appropriate and proper recognition of the plea and co-operation (including their benefit to the community; the outward manifestation of the appellant's contrition, remorse and rehabilitation, acceptance of responsibility, and willingness to facilitate the course of justice; and the personal risk and hardship that was occasioned to the appellant by reason of the co-operation).
In all the circumstances we are satisfied that the combined discount of 40% was not manifestly inadequate. It was within the limits of a sound exercise of the sentencing discretion. We would not infer error in terms of ground 1.
Ground 1 had a reasonable prospect of succeeding. The appellant should have leave to appeal on ground 1. That said, ground 1 should be dismissed.
Disposition: the assertion that the head sentence was manifestly excessive (ground 2)
In written submissions the appellant referred to a number of authorities in support of the contention that the sentence of 6 years and 3 months' imprisonment was manifestly excessive. The appellant referred to R v Cunha; R v Rosso Bernando;[50] R v Agboti;[51] Klomfar v R[52] and R v Phelps; R v Zalapa.[53] R v Cunha; R v Rosso Bernando and R v Agboti have some comparative features with the present case. We will return to them below. The other authorities are not broadly comparable and are of little assistance.
[50] R v Cunha; R v Rosso Bernando [2017] QCA 6.
[51] R v Agboti [2014] QCA 280; (2014) 246 A Crim R 72.
[52] Klomfar v R [2019] NSWCCA 61.
[53] R v Phelps; R v Zalapa [2018] NSWCCA 191.
Klomfar v R saw a higher sentence imposed than the appellant's sentence (7 years and 8 months' imprisonment) for importing 4.653 kg of cocaine (pure weight), which is approximately 2.3 times the commercial quantity. There was a discount of 10% for a plea of guilty (the plea occurring on the first day of trial) and a further discount of 20% referable to 'medium' assistance of which 5% concerned an undertaking to give evidence against a co-offender in the future. The significantly higher quantity of border controlled drug in Klomfar v R means that it is of limited comparative value. R v Phelps; R v Zalapa was a case where the court itself cautioned that, due to the way in which the case was argued, the case was an 'inapposite' one in which to lay down any principle or guidance for judges dealing with other drug importation cases.[54] One of the offenders was also noted to have 'a powerful subjective case' insofar as he suffered from significant mental health difficulties.[55]
[54] R v Phelps; R v Zalapa [109].
[55] R v Phelps; R v Zalapa [105].
R v Agboti concerned the importation of 2.326 kg of pure methamphetamine (2.944 kg gross with a purity of 79%). This was 3.1 times the then relevant commercial quantity. It was observed, however, that the offender had no knowledge of the quantity.[56] The offender pleaded guilty, making an early plea, but provided no co-operation. There were powerful mitigating circumstances in terms of unusual personal factors, leaving the relatively youthful offender in a fragile state of mind, that made the offender desperate to leave her country. On appeal the offender was resentenced to a term of 9 years and 6 months' immediate imprisonment with a non-parole period of 4 years and 6 months. Peter Lyons J (Muir & Morrison JJA agreeing) conducted a useful survey of comparative sentencing decisions to which we have had regard.[57]
[56] R v Agboti [52].
[57] R v Agboti [20] - [44]. The cases of significance, all of which were 'courier' cases, include: R v Jain [2004] VSCA 30 (head sentence of 10 years' imprisonment for importation of heroin slightly in excess of the threshold for a commercial quantity was upheld although the non-parole period was reduced to 7 years); Speer v The Queen [2004] NSWCCA 118 (offender resentenced to head sentence of 9 years' imprisonment with non-parole period of 6 years on guilty plea in relation to importation of 1.7 commercial quantities of heroin); Ng v The Queen [2010] NSWCCA 232 (head sentence of 11.25 years' imprisonment with non-parole period of 7.25 years upheld on appeal with importation of approx. 1.6 commercial quantities of heroin. The offender entered an early plea of guilty); R v Tran [2007] QCA 221; (2007) 172 A Crim R 436 (offender resentenced on appeal to head sentence of 10 years' imprisonment with non-parole period of 5 years for importation of heroin slightly less than 1 commercial quantity following guilty plea); R v Jimson [2009] QCA 183 (the offender imported a marketable quantity of cocaine - ie an amount less than a commercial quantity - pleaded guilty and provided assistance, unsuccessfully, in attempting to identify others involved in the importation; the head sentence of 8 years' imprisonment with a non-parole period of 4 years and 6 months was upheld on appeal as not being manifestly excessive); R v Mokoena [2009] QCA 36; [2009] 2 Qd R 351 (the offender imported a marketable quantity of heroin; he entered a timely plea of guilty and co-operated with authorities; a head sentence of 9 years' imprisonment with a non-parole period of 4 years and 9 months was upheld on appeal as not being manifestly excessive); R v Thathiah [2012] QCA 195 (offender convicted after trial of importation of just under 2 commercial quantities of methamphetamine; head sentence of 10 years' imprisonment with non-parole period of 5 years upheld on appeal); R v Calis [2013] QCA 165 (offender convicted after trial of importation of approx. 1.7 commercial quantities of methamphetamine; head sentence of 10 years' imprisonment with non-parole period of 6 years upheld on appeal as not being manifestly excessive).
Both parties referred to R v Cunha; R v Rosso Bernando, as did the sentencing judge.
In R v Cunha; R v Rosso Bernando Mr Rosso Bernando, a 23‑year‑old Brazilian born in Portugal, imported 2.069 kg (pure weight) of cocaine secreted in his pants. He had a disadvantaged background but had been well educated and was a tertiary student, had no criminal history and was held to be of prior good character. The offender pleaded guilty. In terms of mitigating features the sentencing judge noted the offender's relative youth, contrition and reasonable prospects of rehabilitation. A sentence of 9 years' imprisonment with a non-parole period of 5 years and 6 months was upheld on appeal. However, the challenge was on the basis of infringement of the parity principle rather than on the ground that the sentence was manifestly excessive. That being the case, the sentence imposed on Mr Rosso Bernando is of limited usefulness in identifying the standards of sentencing customarily observed.
The co-appellant with Mr Rosso Bernando was Mr Cunha. Mr Cunha's antecedents were similar to Mr Rosso Bernando and he also had similar personal mitigatory factors. Both arrived in Australia on the same flight. Mr Cunha was carrying a lesser quantity of cocaine - a marketable quantity of 1.338 kg pure weight. Mr Cunha pleaded guilty at an early stage and provided limited co-operation with the authorities. He was sentenced to 8 years' imprisonment with a non‑parole period of 5 years. Mr Cunha's appeal was on the ground that the sentence was manifestly excessive. The appeal was dismissed. Morrison JA (Gotterson JA and Douglas J agreeing) referred to R v Jimson and observed that the outcome in that case suggested that the term of 8 years' imprisonment with a non-parole period of 5 years was not manifestly excessive. The outcome in relation to Mr Cunha provides some support, indirectly, for the sentence imposed on Mr Rosso Bernando.
The respondent referred to two further authorities, one of which post-dated the appellant's sentencing.
R v Banker[58] concerned an importation of methamphetamine which constituted more than 5.5 times the then relevant commercial quantity. The offender pleaded not guilty. There were some parallels with the present case given the personal circumstances of the offender. However, the quantity of the importation and the plea of not guilty mean that the decision is of little use in terms of identifying sentencing standards having regard to a range of broadly comparable cases.
[58] R v Banker [2016] QCA 74.
Director of Public Prosecutions (Cth) v Omar[59] is more pertinent. That involved a heroin importation amounting to 1.77 times the commercial quantity. The offender was not an incoming passenger but instead was an airline flight attendant. The offender pleaded guilty and was of prior good character. Initially a sentence of 5 years and 6 months' imprisonment was imposed. An appeal by the Commonwealth DPP was allowed on the basis that the sentence was manifestly inadequate. The Court of Appeal in Victoria substituted a sentence of 8 years' imprisonment with a non-parole period of 5 years. In so doing the court observed that, having considered a number of intermediate appellate court decisions, sentencing for offending of this scale and nature tends to approach double figures (ie 10 years' imprisonment) depending on individual circumstances - the maximum penalty for such offending being life imprisonment.[60]
[59] Director of Public Prosecutions (Cth) v Omar [2019] VSCA 188.
[60] Director of Public Prosecutions (Cth) v Omar [17] (see also the authorities cited at fn 10). In addition to the cases cited therein in support of that proposition reference should be made to R v Jain (where sentence of 10 years' imprisonment was described as within range).
In an earlier Victorian Court of Appeal decision, Priest JA identified a range of sentences for couriers who pleaded guilty to the importation of a commercial quantity of a border controlled drug of between 4 years' imprisonment and 14 years' imprisonment (the 4 year sentence reflecting a significant discount for assistance to the authorities). His Honour observed that head sentences hovering in a band between 8 and 10 years' imprisonment were common, as were sentences that were slightly lower or marginally higher.[61]
[61] Director of Public Prosecutions (Cth) v Afford [2017] VSCA 201 [63].
Apart from the comparative sentences in the authorities as nominated, the appellant referred to a number of things in support of his contention that the sentence imposed was manifestly excessive. The appellant relied on: (1) his prior good character; (2) his personal circumstances - referring to his medical condition, age and limited risk of re-offending; (3) the circumstances of duress that contributed to his offending; and (4) the suggested circumstance that his confinement would be served in onerous conditions due to the assistance he had provided to the authorities. We will deal with these in turn and then consider ground 2 more generally.
At the outset, however, it should be observed that the sentencing judge referred to all of the specific matters relied on by the appellant. It cannot be suggested - and we did not understand there to be any suggestion - that the sentencing judge overlooked any of these relevant sentencing considerations.
The appellant's prior good character was affected by a circumstance referred to in the confidential schedule. Nevertheless, the sentencing judge allowed the appellant some leniency on account of prior good character. In the circumstances of the offending the appellant's prior good character, partly blemished as it was, was a lesser sentencing consideration. General deterrence was the dominant sentencing consideration. That is all the more so where it is accepted that couriers are often persons of prior good character - having been selected based on their prior good character so as not to attract suspicion and thus being better placed to avoid detection.
We do not regard the appellant's age as meaning that he is of 'advanced age' as is contended for in the appellant's written submissions. The appellant's age was a matter properly taken into account, and assisted the sentencing judge in concluding that the appellant presented a limited risk of re-offending, but did not constitute a significant mitigatory factor in all the circumstances of the offence. There was nothing in the materials before the sentencing judge to suggest that the appellant's age, of itself, would mean that imprisonment would be more onerous. Nor could there be any suggestion that the appellant's age was such as might destroy any reasonable expectation of a useful life after the appellant was released.
Nor, as to the appellant's medical condition, was there any evidence to suggest that imprisonment would place a greater burden on the appellant by reason of the existing state of his health or additional risks as to future health. There was no basis to suggest that the appellant's medication could not be administered throughout his imprisonment or that the appellant's medical condition would require him to face more onerous conditions in serving his sentence of imprisonment. As to the final personal circumstance relied on in support of ground 2, the sentencing judge accepted that personal deterrence was not a significant factor in sentencing the appellant as there was no real risk of him re-offending in this way. The factor was properly taken into account by the sentencing judge.
The sentencing judge also referred to the circumstances of duress which contributed to the appellant's offending. Again, this factor was properly taken into account. In this case the duress exerted on the appellant was only one of a number of contributing factors to the offending. Other factors were solely attributable to the appellant - the offending was also due to drug use, impaired judgment, the prospect of receiving a substantial payment and another matter referred to in the confidential schedule.
The prospect that the appellant would endure additional hardship by reason of serving his sentence in more onerous conditions - potentially being in protective custody due to having assisted the authorities - was properly taken into account as part of the discount to be provided for the appellant's past co-operation.
Having considered the specific factors pressed by the appellant in contending that the sentence imposed was manifestly excessive, as well as the range of sentences customarily imposed in broadly comparable cases, we return to ground 2 more generally.
While, given the way ground 2 was presented, it has been necessary to deal specifically with matters such as the appellant's character, age and medical condition, the other relevant sentencing considerations must also be taken into account. The question raised by ground 2 is whether the sentence imposed was manifestly excessive having regard to all the circumstances of the case. This includes not only the specific matters referred to in the context of ground 2 but also the circumstances of the offending, the appellant's plea of guilty at the first reasonable opportunity and the appellant's past co-operation.
To find that a sentence is or is not manifestly excessive as to length is to express a conclusion. In coming to a conclusion on that question we are satisfied that the term of 6 years and 3 months' imprisonment imposed on the appellant is generally consistent with the sentencing pattern revealed by the broadly comparable cases taking into account the different facts and circumstances in the broadly comparable sentencing outcomes to which we have referred and the particular circumstances pertaining to the appellant and his offending. In considering the broadly comparable cases one must be sensitive to the sentencing variables in those cases and the present case - noting that most of the broadly comparable cases did not involve past co-operation either at all or to the extent as provided by the appellant - and give appropriate recognition to the fact that there is no single correct sentence.
In our opinion, the sentence of 6 years and 3 months' imprisonment was not unreasonable or plainly unjust when proper regard is had to the necessity to impose a sentence of a severity appropriate to all the circumstances of the offence. The sentence as imposed was within the range of a sound exercise of the sentencing discretion taking into account the relevant matters specified in s 16A(2) of the Crimes Act, including the following (together with all other relevant sentencing considerations as mentioned by the sentencing judge):
1.The maximum penalty for the offence - life imprisonment or a fine not exceeding $1,575,000 or both.
2.The nature and circumstances of the offence. The offending was objectively serious. The importation of border controlled drugs into Australia in a commercial quantity has the capacity to cause or materially contribute to serious harm within the community. While, in this case, consideration must be given to the coercion exerted on the appellant, that is to be balanced against:
(a)the reward the appellant expected to receive for his criminal activities;
(b)the essential role performed by a courier in the importation of a border controlled drug; and
(c)another matter referred to in the confidential schedule.
3.The range of sentences disclosed by broadly comparable cases, considered in the context and manner as previously discussed, and the place that the appellant's offending occupies on the scale of seriousness of offences of importing a commercial quantity of a border controlled drug.
4.The accepted importance of general deterrence and proper punishment as sentencing considerations for an offence of the type committed by the appellant.
5.The personal circumstances of the appellant - including his contrition, prior good character, age, health and there being no real risk of the appellant reoffending in this way (meaning that personal deterrence was not a significant factor).
6.The substantial allowance necessarily to be afforded to the appellant based on his plea of guilty at the first reasonable opportunity and the past co-operation he has provided.
The sentence of 6 years and 3 months' imprisonment was within a sound exercise of the sentencing discretion and is not manifestly excessive.
There should be leave to appeal on ground 2. However, the ground should be dismissed.
Conclusion and orders
The parties filed a number of affidavits after the appeal hearing. Those materials were not before the sentencing judge and were not adduced in support of the merits of the grounds of appeal. Rather, the affidavits were filed to provide additional post-sentencing information which might have been of relevance had the appeal been allowed and it was necessary for this court to re-sentence the appellant.[62]
[62] Senior counsel for the appellant accepted that the further affidavit materials would be adduced on this limited basis: Appeal ts 21.
We would dismiss the appeal. Accordingly, it is not necessary to address the further affidavit materials.
We would make orders that:
1.The time for the appellant to apply for leave to appeal against the sentence imposed on him on 13 February 2019 in proceedings INS XXX of XXXX is extended to 16 May 2019.
2.The appellant is granted leave to appeal on grounds 1 and 2.
3.Leave to appeal on ground 3 is refused.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Associate to the Honourable Justice Vaughan12 JANUARY 2021
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