Director of Public Prosecutions (Cth) v Blackman; Director of Public Prosecutions (Cth) v Jomaa

[2014] NSWCCA 90

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Director of Public Prosecutions (Cth) v Blackman Director of Public Prosecutions (Cth) v Jomaa [2014] NSWCCA 90
Hearing dates:	17 April 2014
Decision date:	27 May 2014
Before:	Beazley P at [1] RA Hulme J at [2] Bellew J at [3]
Decision:	In each case, the Crown appeal is dismissed.
Catchwords:	CRIMINAL LAW - appeal - Crown appeal against asserted manifest inadequacy of sentences imposed following pleas of guilty to offences of attempting to possess a commercial quantity of cocaine - where Crown did not assert error of principle - where Crown did not assert error in findings of the sentencing judge - where Crown relied upon maximum penalty, weight of drug, role of the offenders and sentences imposed in other cases in support of asserted manifest inadequacy - manifest inadequacy not made out - appeal dismissed in each case CRIMINAL LAW - appeal - Crown appeal against asserted manifest inadequacy of sentences imposed following pleas of guilty of offences of attempting to possess a commercial quantity of cocaine - where Crown asserted that discount for assistance was manifestly excessive - where amount of discount generally consistent with the finding of the sentencing judge as to the value of assistance - manifestly excessive discount not established
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
Cases Cited:	DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208 Everett v R (1994) 181 CLR 295; Garcia v R [2013] NSWCCA 241 Griffiths v R (1977) 137 CLR 293 Markarian v R (2005) 228 CLR 357 R v Considine [2013] NSWCCA 97 R v Hong; R v Lee [2012] NSWDC 267 R v Karan [2013] NSWCCA 53 R v Nguyen and Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Tran and ors [2013] NSWCCA 136
Category:	Principal judgment
Parties:	Regina - Appellant Brian Blackman - Respondent Regina - Appellant Mohamad Jomaa - Respondent
Representation:	Counsel: Ms P McDonald SC - Appellant Mr D Stewart - Respondent Blackman Mr T Game SC and Ms K Edwards - Respondent Jomaa Solicitors: Commonwealth Director of Public Prosecutions - Appellant Legal Aid New South Wales - Respondent Blackman Criminal Defence Group - Respondent Jomaa
File Number(s):	2010 / 315937 2010 / 315977
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2013-08-20 00:00:00 Before: Acting Judge Phegan

Judgment

1. BEAZLEY P: I agree with Bellew J.

1. RA HULME J: I agree with Bellew J.

1. BELLEW J: On 20 August 2013, the respondents Brian Blackman and Mohamad Jomaa each appeared for sentence before Acting Judge Phegan in the District Court, having previously pleaded guilty to a charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine, contrary to sections 307.5(1) and 11.1 of the Criminal Code 1995 (Cth) ("the Code"). Each offence was alleged to have occurred on or about 22 September 2010. The maximum penalty for such an offence is life imprisonment, or a fine not exceeding $825,000.00, or both.

1. The respondent Blackman was sentenced to imprisonment for a period of 9 years and 9 months, with a non-parole period of 5 years and 6 months. The respondent Jomaa was sentenced to imprisonment for 11 years and 3 months with a non-parole period of 7 years.

1. On 19 September 2013 the Commonwealth Director of Public Prosecutions gave notice of an appeal against the sentence imposed on each of the respondents, on the basis that each sentence was manifestly inadequate. In the case of the respondent Blackman, the Director relied upon an additional ground, namely that the discount of 5% given on account of past assistance to the authorities was manifestly excessive.

THE FACTS

1. The facts as found by the sentencing judge were set out in the following terms (commencing at ROS 1):

"The relevant facts are contained in what is a very lengthy and detailed agreed statement of facts subject to one qualification, which I will come to in due course. They begin on 19 August 2010 when container MSKU1322985, which will be referred to in the course of the judgment simply as "the container", was loaded onto the ship MV Maersk Rotterdam at a port in Colombia. The vessel proceeded, after loading, to a destination in Panama. The bill of lading recording the movement of the container was number 552057893. The container was sealed with seal number C25356. The shipper was Colombiana Kimberley Colpapel SA and the consignee was Kimberley-Clark Australia, Milsons Point. On 28 August 2010 the container was loaded onto another vessel, this time by the name of MV Maersk Jackson at the Balboa Port in Panama, for the purpose of its voyage to Sydney.

At about 10pm on 17 September the vessel berthed at the wharves of P&O Ports, known as DP World, located at Port Botany. On that same date Australian Customs and Border Protection Service, which will be referred to simply as Customs from this point, boarded the vessel and examined the container using a video imaging and scope camera. Customs detected a blue bag contained within the container independently of the material which was the subject of the shipment.

On 18 September 2010 Customs notified the Australian Federal Police who attended the Customs examination facility where the container was physically examined. Forensic examination of the container revealed that the seal had been broken and resealed prior to the container arriving in Australia. The container was opened to reveal two columns of stacked cardboard boxes

printed in part "Depend undergarments, four packs of sixteen". These cardboard boxes contained incontinence pads which were the subject of legitimate importation by Kimberley-Clark Australia. In front of these boxes Customs located two blue Adidas sports bags - which will be referred to from this point on as "the consignment" - inside the door of the container. The first bag contained twenty-seven blocks of what appeared to be compressed white powder. The second bag contained twenty-two blocks of what appeared to be compressed white powder. In the second bag a replacement container seal was affixed to one of the rectangular blocks.

Forensic analysis subsequently revealed the presence of cocaine in forty-eight of the forty-nine blocks. The remaining block was wrapped in a similar way to the others but contained a piece of wood. The net weight of the powder was 48.22 kilograms. According to the National Measurement Institute the purity of the cocaine ranged from 52.1 per cent to 78.2 per cent. The calculated pure weight of the cocaine was accordingly 31.92 kilograms. Its street value was estimated at between $22,806,250 and $25,453,200. The wholesale value of the cocaine is about $9,930,122, calculated on a per kilogram price of $194,753 for impure cocaine of this quality in New South Wales in June 2010.

On 19 September 2010, the day following the examination of the contents of the container, a controlled operation authority was issued in relation to the matter, and the Australian Federal Police installed listening and tracking devices on the container and on the substituted material within the two blue Adidas sports bags. Australian Federal Police Crime Scene members completed a substitution of the original forty-eight blocks of cocaine with blocks containing an inert substitute material and the replacement container seal was affixed to one of the substitute blocks. The bags were returned to the container which was transported back to the wharves of DP World. The container was then placed under physical and electronic surveillance by the Australian Federal Police and Customs.

On 21 September 2010 at about 5 am the container was transported by rail from DP World to Macarthur Intermodal Shipping Terminal Pty Limited, known as MIST, and located at 7-9 Stoney Batter Road, Minto, New South Wales. It arrived at MIST at about 2.40pm and the container was then placed under further physical and electronic surveillance.

There are then a number of facts recording the movements and activities of the two co-offenders beginning on 14 September 2010, that is some three days before the ship containing the consignment berthed in Sydney.

On the afternoon of 14 September, some time around 4.30 to 4.45, a black Nissan Maxima bearing registration number BNF08S stopped in the vicinity of a BP Service Station at Cumberland Highway, Cabramatta. The offender Jomaa was the driver of the vehicle as revealed in CCTV footage obtained from the service station. The vehicle itself was registered to a company by the name of 4 Star Pty Limited, a director of which was Abbas

Jomaa, who is the brother of the offender. A previous place of business of that company was at 120 Turrella Street, Arncliffe, and that address in turn is the location of the Jomaa family business, Sydney Freezers, a company for which, prior to his arrest, Jomaa worked in a number of capacities including as delivery driver. Shortly after the vehicle had stopped near the BP Service

Station both Blackman and Jomaa made telephone calls through cell sites in the Liverpool area which are consistent with the two having met up at that time.

At about 5pm the vehicle stopped at an address at Bungaree Place, Miller, the premises of a person by the name of Wesley Parkes. It stayed at that address for about three minutes. Parkes is an employee of MIST who was introduced to Blackman by a co-accused William Long. In about February 2010 the offender had provided Parkes with a list of container numbers to check which containers were routed through MIST.

In September of that year Blackman visited Parkes at his premises and requested him to arrange for a container to be dropped down as he needed some car parts out of the container. Parkes noticed a black vehicle when the offender Blackman visited his house but he was unable to identify the vehicle in any more detail.

Later on 14 September 2010 the black Nissan Maxima stopped at Pendergast Avenue, Minto which is near number 12 Bigge Way, Minto, the premises of an ex-partner of the co-accused Long. Close to 6pm that same afternoon the vehicle stopped near the car park of Hungry Jack's in Pembroke Road, Minto Mall and the vehicle remained there for approximately ten minutes. Again this location is close to MIST and to 12 Bigge Way, Minto. Shortly after that the vehicle travelled back to Bigge Way, Minto, stopped and then left the Minto area. These movements are consistent with the co-accused Long being picked up from his premises and then dropped home after meeting at Hungry Jack's.

There is a record of Blackman making some telephone calls from the Minto area, and further calls made by Jomaa between 6.30 and 7pm indicating that he was travelling from the Minto area to the Hurstville area. The vehicle he was driving was recorded as having stopped in the vicinity of Waitara Parade, Hurstville Grove. Blackman's address at the time was 43 Waitara Parade. These movements are consistent with Jomaa and Blackman returning together from the Minto area and Blackman being dropped off at his home.

I turn now to events recorded on the next day, 15 September 2010. On that day at about 7.30pm the same vehicle, the black Maxima, stopped at Blackman's premises in Hurstville Grove and at about 7.56 stopped at the Parkes' premises and moved off after another stop of about three minutes. The vehicle then returned to Blackman's home at 8.36 pm, stopped momentarily and then left the Hurstville Grove area.

I now come to the events more immediately leading up to the commission of the offence over the period from 17 to 21 September 2010, particularly involving Blackman.

On 17 September an internet booking was made with Virgin Blue for Blackman to leave the next day from Sydney to the Gold Coast. On the same reservation Blackman was scheduled to leave the Gold Coast and return to Sydney on 19 September. The flights were paid for by a Visa card in Blackman's name.

On 18 September 2010 at a little after 7 am a booking was made at the Virgin Blue terminal at the Sydney Domestic Airport for "Bill Long" to depart from the Gold Coast on 19 September on the same flight on which Blackman was booked to return to Sydney. Blackman duly travelled to the Gold Coast, and on 19 September at about 10 am an internet booking was made with Virgin Blue for a Neil Todorovski to depart on the same flight as Blackman and Long were travelling to Sydney.

At about 1.58pm that day, that is 19 September, Blackman was recorded as using telephone number 0417696169 to (call) Jomaa on number 0406622274. The first of those numbers is subscribed under Blackman's name, the second under a name Mul Lai, which is a false identity. At about five past five on that afternoon the offender Blackman, co-accused Long and Mr Todoroski (sic) boarded the Virgin Blue flight from the Gold Coast to Sydney. They travelled separately on the flight. At about 6.46 on arrival at Sydney Domestic Terminal Blackman used a public telephone to call Jomaa on the 0406 number.

On 20 September 2010 at about 12.47 am Long, using a telephone service 0415366563 subscribed in the name of Helen Harris, another false identity, made a telephone call to Blackman on his 0417 number.

On 21 September at about 4.24 the Black Nissan Maxima which had been referred to earlier stopped at Blackman's premises in Hurstville Grove and at about 5pm on that same afternoon the vehicle stopped at the premises of Wesley Parkes and remained in the Miller area for about seven minutes. The vehicle then returned to the offender Blackman's premises in Hurstville Grove at 5.45pm, stopping momentarily and then left the Hurstville area.

I should explain that I have, while omitting some of the detail in the agreed facts, recorded nonetheless in some detail the events over that period of time. The reason for that is to demonstrate the extent to which there was continuing and regular contact between the co-offenders at addresses and in areas which have a very direct relevance to the commission of the offence.

I turn now to the events of 21 September 2010, that is the day immediately preceding the commission of the offence. At about 9.32pm Jomaa's vehicle, the black Nissan Maxima, stopped in the vicinity of his brother Abbas Jomaa's premises in Wollongong Road, Arncliffe. At about 11.22pm on that evening a Silver Service branded taxi bearing the registration number T4980 with Ali Arbid as the recorded driver arrived at the Wollongong Road, Arncliffe address. At the time the taxi's meter was set and engaged while it was in close proximity to the black Nissan Maxima which had been driven on a number of previous occasions by Jomaa. The taxi was directly booked by Jomaa. Ali Arbid, the driver, was a friend of Abbas Jomaa and was known to the offender. The taxi, after collecting Jomaa at the Arncliffe address, then went to the Penshurst area where it collected Blackman. Blackman on the record of the taxi provided directions to the driver towards the Campbelltown area, and at about 11.54 the tag number registered in Mr Arbid's name was used on the westbound lane of the M5 motorway through the Hammondville Toll Plaza in the direction of Minto.

On that same night, but now in the very early hours of the morning of 22 September, at about 12.58 am closed-circuit television footage from MIST captured a white Holden Commodore utility driving into MIST with the driver as the sole occupant of the vehicle. At about two minutes past one on that morning two sports bags containing the substituted blocks were removed from the container by the driver of the Holden Commodore utility. Three minutes later the utility, registration number AR83KK, again with the driver as the sole occupant, left the driveway of MIST and travelled towards Pembroke Road and at that stage went out of sight. Another three minutes later the vehicle was observed parked on Pendergast Avenue, Minto with its headlights off outside 12 Bigge Way, Minto. At this time the consignment was located in close vicinity to this vehicle. The vehicle itself from RTA records is shown to be registered in the name of Lesley John Long, who is the father of the co-offender Long.

At about ten past one on that same morning a taxi driven by Ali Arbid approached along Pendergast Avenue and parked behind the white Commodore utility. Blackman left the rear driver's side door of the taxi and walked towards the median strip in front of the premises, that is 12 Bigge Way. Long walked from the premises and met up with Blackman on the median strip. They appeared to have a conversation near the passenger side door of the white Commodore utility, and during their conversation both men appeared to look in the direction of the Australian Federal Police surveillance vehicle parked some sixty metres away. A minute later Blackman returned to the taxi and Long returned to the premises. At 1.30 am approximately the e-TAG registered in the taxi driver Ali Arbid's name was used on the eastbound lane of the M5 motorway and at about 2 am Mr Arbid's taxi was found to have reached Wollongong Road, Arncliffe with the meter set at vacant. The taxi fare for the whole of the arranged trip was somewhere between $200 and $300 and was paid for by Jomaa.

At five minutes past two that morning Jomaa's vehicle, the black Nissan Maxima, left the address at Wollongong Road, Arncliffe and stopped at Jomaa's own residential premises, 14 Yarren Avenue, Bright-Le-Sands, and remained there for almost five hours.

I should interrupt the record of the agreed facts to make some comment on the events involving the taxi and what appeared to have been a trip that produced no tangible result in any way associated with the consignment of drugs. The position taken by the Crown, and I have to say I see some merit in the argument, although it is a matter of inference, is that the events recorded support the conclusion that the taxi had originally been engaged for the purpose of being involved in the collection of the consignment from Mr Long, but that had been frustrated by the apparent sighting of the Federal Police vehicle which had led to the abandonment of the original plan.

I would emphasise that that is a matter of inference, but in my view certainly a particularly strong inference in view of all that previously and subsequently happened.

I turn then to the actual collection of the assignment (sic) by the co-offenders Blackman and Jomaa on 22 September 2010 which constituted the actual offence. At 7.15am and again at 9.36am Bronwyn Josephine Reely was observed to walk from the premises in Bigge Way and go to the rear of the white Commodore utility and look under the tarpaulin on the back of the vehicle where the two sports bags were located. On both occasions Reely was observed returning to the premises without the bags. Ms Reely was identified as the former partner of the co-offender Long, who lived at the address in 12 Bigge Way, Minto.

At 7.58am Steven Christodoulou made a telephone call through a cell site in Earlwood which put him in the vicinity of the premises where Jomaa worked at 120 Turrella Street, Turrella. At 8.27am the offender Blackman made a telephone call through a cell site in Arncliffe, which is also in the vicinity of Jomaa's work premises in Turrella. Between 8.43 and 9.16 telephone calls made by Christodoulou revealed that he was moving from the Turrella area towards Minto.

At 9.46 and again at 10.06, Blackman and Christodoulou made calls from cell sites in the Campbelltown and Varroville area, which, put them in the vicinity of the Minto area where the consignment was now located in the rear of the Commodore utility.

Between 10.12 and 11.03 telephone calls were made by Blackman and Christodoulou indicating that they were at that stage moving back from Minto towards Turrella. At about 11.39 and again at 11.47 Blackman and Jomaa made telephone calls through the same cell site in Earlwood which put them again near Jomaa's work premises in Turrella.

At 11.47 Jomaa was recorded making a telephone call to a number in Lebanon under the name of Khodor Jomaa, believed to be a substitute for the actual name of Jomaa's brother Koder. What this established was that around the time of the commission of the offence Jomaa was in contact by telephone with his brother in Lebanon.

At 12.36 Blackman made a telephone call from a cell site in Blakehurst which is consistent with him at that stage having returned to his home in Hurstville Grove. At 1.26 Long made a telephone call to Blackman through a cell site in Raby, which is consistent with the call being made from Reely's premises in Minto.

There was another telephone call from Blackman to Jomaa about 1.27 and between six minutes past two and 2.38pm a number of calls were made by either Jomaa or Christodoulou which indicated that they were at that time travelling from the Turrella area towards Minto.

At about 2.58 Australian Federal Police observed a grey Holden Calais sedan drive into Pendergast Avenue, Minto and park in front of the white Commodore utility. That vehicle was registered in the name of Steven Christodoulou.

A short time later Blackman and Jomaa left the vehicle and walked to the front yard of the premises in 12 Bigge Way. The driver, Christodoulou, remained in the vehicle.

Jomaa then left the front of the premises and walked to the passenger side of the white Commodore utility, lifted up the tarpaulin and removed one of the sports bags containing the cocaine substitute. Subsequent fingerprint analysis identified Jomaa's left palm print on the passenger side tray of the vehicle.

Jomaa then placed the sports bag in the boot of Christodoulou's vehicle and while Jomaa was moving the first sports bag Blackman walked from the front yard of the premises to the rear of the vehicle and retrieved the second bag which he then handed to Jomaa. At this time Long was seen walking from the front of the premises towards Jomaa and Blackman. Jomaa placed the second bag in the boot of the vehicle, that is of Christodoulou's vehicle. There was a short conversation between the three co-offenders Jomaa, Blackman and Long before Jomaa closed the boot of the vehicle and re-entered the vehicle from the rear passenger side door. In the meantime Blackman had also re-entered the vehicle through the front passenger door.

At about 3pm the vehicle, still driven by Christodoulou, with the offenders Blackman and Jomaa respectively in the front and rear of the vehicle, left the premises. Long closed up the tarpaulin on the utility and walked out of sight towards the premises.

It is important at this stage to note that although the bags were seen to be placed in the boot of the vehicle belonging to Mr Christodoulou it was possible to fold down the rear seat, or part of the rear seat for the purpose of access to the boot. This becomes relevant, because at about one minute past three while the vehicle was in transit a listening device which had been placed by the Australian Federal Police in the vehicle revealed the sound one of the sports bags being moved and a zipper being activated on the bag. This was possible, because of the arrangement in the vehicle which I have just described and because Jomaa was sitting in the rear seat. The sounds were consistent with the bag being moved into the back seat and the zipper opened by Jomaa.

I come now to one part of the agreed facts on which, as it turned out there was some disagreement, and I will deal with that at this point. According to the police version Blackman said shortly after the bag was heard to be zipped open, "Fucking yes that's (something indistinct) it". Then at three minutes past three the listening device revealed the sound of the zipper bag being activated and seconds later Jomaa was recorded as saying "Oh fuck there's a tape recorder down here, there's a fucking tape recorder na na stop it." This was followed by some apparent laughter. The Crown case was that this indicated that Mr Jomaa was having a joke with Blackman about the contents of the bag.

An expert report was tendered in Jomaa's case indicating that the words used by Jomaa did not refer to a tape recorder at all. I have to say that I have listened to a number of recordings of conversations in which Jomaa was involved and, from my relatively inexpert position, I found it extremely difficult to understand much of which Mr Jomaa was saying. I acknowledge having said that, that the expert opinions on which both the Crown case and the case for Mr Jomaa were based were appropriately qualified. In particular Mr Herbert, who had interpreted the conversations on behalf of the Australian Federal Police, was particularly familiar from a number of other recordings of Mr Jomaa's voice. However, exactly what was said by Mr Jomaa, and, indeed, by Mr Blackman, is of no particular consequence at all. What matters, and, as I understand it, this was not disputed, is that there was a recording of the sound of a bag being unzipped and of something being said as a consequence.

The reason exactly what was said becomes of no consequence is the guilty plea, which includes an admission that both parties knew what was meant to be in the bags and that any comment, whatever it was, and whether it was made as a joke or whether it was said seriously, merely reflects some observation made once the bag was opened. That it was being opened to check the contents. In my view, therefore, a great deal of time - I have to say with respect to both parties - was spent agonising over exactly what was said in that conversation, to the extent that there was a conversation.

Continuing with the relevant events of that day, at about eight minutes past three Jomaa was recorded as making another call to his brother in Lebanon. In this case the conversation was in Arabic, but there appears to be no serious dispute about the words that were used. At one point Jomaa was recorded as saying to his brother "Praise to God there is no one like her. Go sit on the mountain, have a smell and be happy.... It went through." That was, the Crown submitted, a reference to the apparent success of the importation and delivery of the cocaine and that it implicated in some way Jomaa's brother having, certainly knowledge of, if not some involvement in, the importation and delivery of the drugs.

Again there is, I have to acknowledge, some ambiguity in exactly what was being said in that conversation and to what it referred, but given the earlier conversation on the telephone between the two brothers in the context of the events leading up to the commission of the offence and the words "It went through", they certainly support a conclusion that Jomaa's brother was aware of what was going on and Jomaa thought is (sic) sufficiently important to make a telephone call to report the apparent success of the venture.

Returning then to the record of the progress of Mr Christodoulou's

vehicle. It was traced travelling from Minto to Riverwood where the vehicle was intercepted at about 3.32pm by Australian Federal Police, who conducted a vehicle stop on Hannans Road at the intersection of Bonds Road, Riverwood. Blackman, Jomaa and Christodoulou were arrested and at the time of the vehicle stop were found occupying the same seats in the vehicle which they have (sic) been observed to have taken up at the start of the trip. The two bags were found in the boot of the vehicle and various telephone handsets were located in the vehicle, including one belonging to Jomaa in the rear of the vehicle where he had been sitting, one belonging to Christodoulou and one belonging to Blackman located in the front passenger foot well.

There are then some further facts recorded regarding Mr Christodoulou and the co-offender Long, which it is not necessary to place on record for the purpose of these proceedings. It is sufficient to note that Blackman was escorted to the Australian Federal Police Office in Sydney where he declined to participate in a recorded interview. He was later taken to Surry Hills Police Station where he was charged with the offence now before me for sentence. Similarly, Jomaa was taken first to the Australian Federal Police Office and after declining to participate in a recorded interview was then taken to Surry Hills Police Station where he also was charged".

THE FINDINGS OF THE SENTENCING JUDGE

1. Having set out the facts, his Honour made reference to various cases to which he had been referred, in which sentences had been imposed for similar offending. He expressed the view (at ROS 18) that those cases provided limited assistance, pointing out that no two cases are factually the same. He concluded (at ROS 19) that they were helpful only to the extent that they provided an indication of the matters that were important to take into account in determining an appropriate sentence for a matter of this nature. His Honour made a similar observation in respect of the sentencing statistics with which he had been provided by counsel for each of the respondents.

1. In terms of the objective seriousness of the offending, his Honour concluded (at ROS 19-20) that at certain stages each respondent had individually exercised a degree of independent judgment and initiative, but that there was nothing to distinguish between them in relation to their overall involvement. His Honour also noted the amount of the cocaine, its street value, and the potential effect of its ultimate distribution in the community.

1. His Honour then made reference (commencing at ROS 20) to the conduct of each of the respondents in the period leading up to the commission of the offence. He concluded that such conduct was indicative of their "substantial and continuing involvement".

1. His Honour observed that the use of the term "courier" to describe the role of each respondent was "misleadingly simplistic" before saying (at ROS 22):

"...the point that needs to be made is that neither man could be said to have simply been enlisted for the purposes of picking up the drug from a pre-determined address and taking it to another address without more. Their involvement was certainly more substantial than that."

1. His Honour then said (at ROS 25):

"...There is no evidence that either Jomaa or Blackman were

the "kingpins" or the brains of the enterprise and in fact there is no evidence of any involvement of either of them in the enterprise before 14 September 2010, that is, just over a week before the commission of the offence. There is no evidence that they were directly involved in the process of the shipping and import of the drugs. However, what is important to note is that while it is necessary to take into account the evidence of their limited involvement in the enterprise in a chronological sense, that does not necessarily mean that either or both had no connection of any kind with the importation of the illicit drug prior to 14 September 2010."

1. His Honour then turned to the evidence of a conversation which had occurred between the two respondents some 12 months prior to the commission of the offence. He concluded that such conversation indicated that both respondents had some interest in the importation of prohibited drugs before saying (at ROS 26):

"I stress in drawing attention to that evidence that it cannot be connected in any direct way with the offence in this case. There is nothing in that conversation to suggest that they were talking about the consignment which became the subject of this offence but it is nonetheless evidence of an earlier interest in illicit drug importation, and perhaps importantly how much money could be made out of it. It is inconsistent with any suggestion that their involvement in this offence was entirely spontaneous and a response to an offer unconnected with any earlier knowledge or interest in the illicit drug trade."

1. Ultimately, in terms of the role played by the respondents, his Honour said (commencing at ROS 38):

"I noted earlier that there is in any case no evidence of any direct role on the part of either offender in the process of importation. There is certainly is (sic) no evidence that either was the principal in the process, that is the architect of the whole process of importation and delivery. But that does not relieve their involvement in the offence of its grave seriousness, evidenced by the quantity of drugs involved and the substantial payment which each of the offenders expected to obtain for their involvement. In particular, the quantity of the drug carried with it the prospect of a very substantial personal, social and financial cost to a significant number of potential users, had the drug found its way, as

was intended, into their hands. That is a matter (of) which, in this case, both offenders must have been well aware, given their own association with and the impact of the particular drug, cocaine, on their own personal lives. But that unfortunately seems to have no affect (sic) in averting their decision to become involved in this offence."

1. His Honour considered the respective subjective cases (commencing at ROS 29 in the case of Jomaa and ROS 33 in the case of Blackman). He identified one distinguishing feature between those subjective cases, namely the psychological condition of the respondent Jomaa. He described the need for the respondent Jomaa to have appropriate psychiatric treatment (at ROS 48) as "very serious" and concluded that there was no doubt that the respondent had psychological problems which needed to be addressed.

1. His Honour noted that both respondents had indicated that they were in difficult financial circumstances, partly as a consequence of their involvement in drug abuse. However, he found that this was not a matter of mitigation and concluded (at ROS 38) that the imposition of a substantial period of full-time imprisonment was warranted.

1. His Honour then considered the provisions of s. 16A of the Crimes Act 1914 (Cth) ("the Act"). He found (at ROS 39) that in letters sent to the Court both respondents had expressed contrition and remorse, but that such expressions were of limited weight in circumstances where neither respondent had given evidence.

1. In considering the pleas of guilty, his Honour set out (commencing at ROS 40) the history of the proceedings, before concluding that the plea entered by the respondent Blackman was forthcoming at committal and thus entered at the earliest opportunity. He found that this was not the case with the respondent Jomaa, his plea having been entered only after there had been proceedings in which requests had been made to the Crown to call a number of witnesses. His Honour concluded that whilst those requests were a legitimate use of court process, they nonetheless reflected a reluctance on the part of the respondent Jomaa to fully facilitate the course of justice. Ultimately, his Honour allowed a discount of 25% in the case of the respondent Blackman, and 20% in the case of the respondent Jomaa, to reflect the utilitarian value of the respective pleas.

1. His Honour then considered the assistance given by the respondent Blackman to the authorities (commencing at ROS 42). He made reference to confidential information provided by the Australian Federal Police on sentence before finding (at ROS 42):

"... there was some assistance, but ... in the end it was ranked as of very little value in a practical sense and therefore a matter to which only limited weight can be given. However, I am satisfied that some weight should be given to it, even though it might be of a modest degree."

1. He proceeded to allow an additional discount of 5% on account of the respondent Blackman's assistance.

1. Although not the subject of a specific finding, his Honour appears to have been generally of the view (at ROS 44-46) that the prospects of rehabilitation of each of the respondents were favourable. In terms of s. 16A(2)(p) of the Act his Honour found (at ROS 46) that whilst the effect of the sentences that he proposed would be profound on the family and close associates of the respective respondents, such effect was not exceptional. His Honour also noted (at ROS 47) that the respondent Jomaa had no criminal record and that the respondent Blackman's criminal record was of limited significance.

1. Ultimately, his Honour concluded (at ROS 51) that the appropriate starting point in each case was a period of 14 years imprisonment. He then proceeded to impose the sentences I have previously outlined.

THE SUBMISSIONS OF THE CROWN

1. The Crown did not assert that the sentencing judge had erred in principle, nor did the Crown assert that there was any error arising from any of his Honour's findings. The Crown submitted, by reference to five particular matters, that the sentence imposed in each case was manifestly inadequate, and that this Court should intervene in order to perform its function of establishing principles for the governance and guidance of courts having the duty of sentencing convicted persons (see Everett v R (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ, citing Griffiths v R (1977) 137 CLR 293 at 310).

1. The five matters relied upon by the Crown as supporting the conclusion that the sentences were manifestly inadequate were:

(i)   the maximum penalty prescribed for the offence;

(ii)   the weight of the drug;

(iii)   the serious nature of the offending;

(iv)   the subjective circumstances of each respondent; and

(v)   a consideration of sentences imposed in what were said to be comparable cases.

1. In the case of the respondent Blackman, the Crown advanced the additional submission that the discount allowed by the sentencing judge for assistance was manifestly excessive.

The maximum penalty

1. The Crown pointed to the fact that the applicable maximum penalty was life imprisonment, or a fine not exceeding $825,000.00, or both. It was submitted that the maximum penalty was not to be regarded as a mere formality, but rather as a sentencing yardstick to which careful attention needed to be paid when determining an appropriate sentence. Although not specifically put, inherent in the Crown's submission was the proposition that the sentencing judge had failed to give the maximum penalty appropriate consideration.

The weight of the drug

1. The Crown pointed to the fact that the commercial quantity applicable to cocaine was 2 kilograms, and emphasised that the amount of the drug in the present case was almost 16 times that quantity. The Crown also pointed to the fact that the cocaine had a wholesale value in excess of $9.9 million, and a street value in excess of $22.8 million.

1. The Crown further submitted that the evidence supported a finding that both of the respondents knew of the weight of the drug prior to their collection of the bags. I have dealt with this submission in more detail below but it should be noted that the sentencing judge made no such finding.

The nature of the offending

1. The Crown submitted that the respondents had engaged in significant planning as evidenced by their activities in the week prior to the commission of the offence. The Crown pointed, in particular, to the fact that because the narcotics had been secreted in an otherwise legitimate importation of commercial goods, the respondents had been required to obtain information about the container, the date of its transportation and its location. The Crown submitted that once armed with that information, the respondents were then required to access the container and remove what they thought to be the drug. In these circumstances, the Crown argued in written submissions that the respondents were "senior operators in the criminal enterprise" such that "every other person referred to in the facts was subordinate to (them)". The latter submission cannot stand in light of the Crown's abandonment, in oral argument, of the proposition that the respondents were responsible for the "conscription" or "recruitment" of others, most notably Mr Long.

1. Finally, the Crown emphasised a number of the findings made by the sentencing judge, including the finding that the respondents exercised a degree of independent judgment and initiative, as well as the finding that their involvement was a substantial and continuing one.

The subjective cases of the respondents

1. The Crown submitted that there was nothing remarkable about the subjective case of either respondent. In particular, the Crown submitted that the evidence of the mental state of the respondent Jomaa was of no particular significance.

1. The Crown further submitted that the discount which was allowed by the sentencing judge to reflect the past assistance of the respondent Blackman was manifestly excessive. The Crown pointed, in particular, to the fact that such assistance was unrelated to this offending and was found by his Honour to have been of little practical value. In submitting that a discount of 5% (which equated to 8 months) was manifestly excessive, the Crown declined to advance any specific submission as to the appropriate discount.

Sentences imposed in other cases

1. Finally, the Crown provided the Court with a schedule containing details of sentences imposed in 33 other cases of similar offending. Ten of those cases were extracted and set out in a separate table in the Crown's submissions. The Crown submitted that the manifest inadequacy of the sentences imposed upon the respondents was evident from a consideration of the sentences imposed in those other cases. In particular, the Crown argued that the circumstances of the cases contained in the table set out in the written submissions were "broadly comparable" to the cases of each of the respondents.

SUBMISSIONS ON BEHALF OF THE RESPONDENT JOMAA

1. Senior counsel for the respondent Jomaa commenced by emphasising that neither he nor the Crown took any issue with any of the findings made by the sentencing judge. He then proceeded to address the five factors relied upon by the Crown.

1. Senior counsel submitted that the sentencing judge was obviously well aware of the maximum penalty, that he appropriately took it into account, and that in sentencing the respondents he did not diminish the seriousness of the offending. Senior counsel submitted that offending of this nature encompassed a wide range of culpability, and that focussing upon the maximum penalty was particularly inapposite in the present case in light of the respondent Jomaa's subjective case (which is discussed further below).

1. Senior counsel acknowledged that the weight of the drug was an obviously important consideration on sentence. However, he submitted that it was not determinative of the objective seriousness of the offending. He emphasised that there was nothing to suggest that the respondent Jomaa was aware of the quantity of the drug at any time before the bags were collected, and submitted that the Crown had failed to identify any aspect of the sentencing judge's approach to this issue which indicated error.

1. As to the objective seriousness of the offending, senior counsel emphasised that the sentencing judge had not found that there was any evidence of either respondent having played a direct role in the process of importation. He also pointed out that the sentencing judge had effectively found that the role of the respondent Jomaa was limited to involvement in arrangements for the collection and transportation of the drugs, and some "casing" of the Minto area in the week leading up to the commission of the offence.

1. It was further submitted that the Crown's proposition that each respondent was a "senior operator in the criminal enterprise" was not supported by the evidence and in any event was not a finding made by the sentencing judge. Senior counsel also submitted that the Crown's reliance upon what was said to be the significant role played by the respondents was undermined by their direct involvement in the collection and transportation of the bags, and their arrest whilst in possession of them.

1. Senior counsel submitted that the respondent Jomaa's subjective case was compelling, particularly in light of the unchallenged findings of the sentencing judge regarding the respondent's intellectual limitations and psychiatric condition. Indeed, he submitted that in light of those matters, it would have been open to the sentencing judge to place even greater weight on the respondent's subjective case than he ultimately did.

1. Finally, in terms of the Crown's reliance upon sentences imposed in other cases, senior counsel submitted that the cases relied upon by the Crown were not comparable, even in a broad sense. In particular, he submitted that on the limited information available, none of the offenders in the cases relied upon by the Crown had any intellectual or similar problems of the kind suffered by the respondent Jomaa.

SUBMISSIONS ON BEHALF OF THE RESPONDENT BLACKMAN

1. Counsel for the respondent Blackman similarly emphasised that no issue was taken with any of the findings reached by the sentencing judge. He too acknowledged that the weight of the drug was a significant factor in determining the objective seriousness of the offence but submitted that there was no indication that the sentencing judge had erred in considering the importance to be attached to that circumstance.

1. Counsel submitted that Blackman's involvement in the enterprise surrounding the importation was limited to his activities during the week prior to the commission of the offence, and his actions in collecting the bags. He submitted, in particular, that there was no evidence that the respondent Blackman was directly involved in the actual importation or that he was connected to those involved in it. Emphasis was placed upon the fact that his Honour had not found that the respondent Blackman had occupied any managerial role.

1. Counsel submitted that the discount allowed by the sentencing judge on account of past assistance was completely consistent with his finding as to the value of the assistance which was provided. It was submitted that the discount was neither excessive nor disproportionate.

1. In terms of the Crown's reliance upon sentences imposed in other cases, counsel pointed out that the Crown had adopted a similar position on sentence, and that the sentencing judge had concluded (at ROS 18-19) that the cases to which he had been referred provided only limited assistance. Counsel submitted, in effect, that the same could be said of the material now provided by the Crown and that the sentencing judge had applied the correct legal principles when considering the relevance of so called comparative sentences, as well as the relevance of the sentencing statistics which were made available to him.

CONSIDERATION

1. As I have noted, the Crown has not pointed to any specific error on the part of the sentencing judge, but has submitted that by reference to the five matters in [23] above, this Court should conclude that the sentence imposed upon each of the respondents was manifestly inadequate. In these circumstances, the Crown must establish such sentences were unreasonable or plainly unjust (see Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 370-371; [25]).

1. In my view, for the reasons that follow, the Crown has failed to make good its submission that the sentences were manifestly inadequate and the appeal in each case should be dismissed.

1. I turn firstly to the Crown's reliance on the applicable maximum penalty.

1. In Markarian v R (2005) 228 CLR 357 Gleeson CJ, along with Gummow, Hayne and Callinan JJ said (at 372):

"[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observed that:

'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century...or because it has more recently been set at a high catch-all level... At other times the maximum may be highly relevant and sometimes may create real difficulties...

A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].'

[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."

1. In the present case, the sentencing judge was plainly aware of, and paid careful attention to, the maximum penalty. So much is evident from the fact that he expressly referred to it on two separate occasions (at ROS 1 and ROS 37). His Honour said nothing which diminished the objective seriousness of the offending and his reasons were comprehensive. In these circumstances, the fact of the maximum penalty, either of itself or in combination with the other factors relied upon by the Crown, does not support a conclusion that the sentences imposed were manifestly inadequate.

1. There is no doubt that the weight of the drug in the present case was significant, and that this was a relevant factor in determining an appropriate sentence (see R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72] per Johnson J, Macfarlan JA and R A Hulme J agreeing). It is also clear that the weight of an imported drug has added significance where an offender is aware of it (see Nguyen and Pham (supra) at [72]; Garcia v R [2013] NSWCCA 241 at [74]). Equally however, weight is not determinative, be it of the sentence itself or the range into which a sentence should fall (see DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [68] per Allsop P (as his Honour then was)).

1. In the present case, the sentencing judge said (at ROS 20):

"Forty-eight kilograms of cocaine with a street value between twenty-two and twenty-six million dollars is a very substantial amount of that drug, well in excess of a commercial quantity for the purposes of this offence. The potential effect therefore of the ultimate distribution of this drug was profound in terms of the very large number of potential users who would have access to a share of the consignment".

1. His Honour then returned to this issue (at ROS 38) and said:

"In particular, the quantity of the drug carried with it the prospect of a very substantial personal, social and financial cost to a significant number of potential users, had the drug found its way, as was intended, into their hands."

1. It is evident from these passages that the sentencing judge was aware of the weight of the drug, and its significance in the determination of an appropriate sentence. If the Crown wished to argue, on sentence, that either or both of the respondents knew of the weight of the drug, it bore the onus of establishing that fact beyond reasonable doubt (see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]; 281). The sentencing judge made no such finding.

1. Before this Court, the Crown submitted that the respondents must have known that the cocaine was capable of being collected with the aid of a utility, as opposed to a larger vehicle such as a truck, and that this sustained an inference of knowledge of the weight. That evidence was, of course, entirely circumstantial, and in my view was equally consistent with each respondent holding a belief that the amount of drug was capable of being secreted in two relatively small bags, and therefore the amount was at the lower end of the scale.

1. In any event there were other, more fundamental, difficulties with the submission advanced by the Crown before this Court. Firstly the Crown did not challenge any finding reached by the sentencing judge. Secondly the Crown did not assert that the sentencing judge had erred in failing to reach any particular finding. In particular, the Crown did not assert that the sentencing judge had erred in failing to conclude that the respondents knew of the weight of the drug. In these circumstances, it was not open to the Crown, in support of the proposition that the sentences imposed were manifestly inadequate, to submit that this Court should find that each respondent had such knowledge.

1. A similar observation may be made in relation to the Crown's submission that the respondents were "senior operators in the enterprise". The sentencing judge did not make such a finding and the Crown did not argue before this Court that his Honour had erred in failing to do so.

1. It has been recognised that the circumstances leading to the commission of this particular offence can encompass a wide range of moral culpability. In particular, the circumstances in which a person might obtain possession of such material, and what it was that the person intended to do with it, can be relevant to determining the degree of moral culpability (see El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208 per Spigelman CJ at [33], James and Simpson JJ agreeing). It follows, as senior counsel for the respondent Jomaa pointed out, that the sentencing range will be similarly wide. I have already set out the findings which were made by the sentencing judge in relation to the circumstances of the respondents' offending, which are not the subject of any challenge. His Honour's reasons were comprehensive and he took all relevant factors into account.

1. The Crown argued that much of the evidence in support of the subjective case of each respondent had been placed before the sentencing judge in a hearsay form and that as a result, such evidence remained untested in the absence of sworn evidence. Be that as it may, the Crown has not challenged the findings of the sentencing judge based upon that evidence. In the absence of such a challenge, the form in which the evidence was placed before the sentencing judge is immaterial.

1. One of the important aspects of the subjective case of the respondent Jomaa concerned his mental health. In this regard, the sentencing judge made the following findings (commencing at ROS 47):

"A matter which distinguishes the two offenders is not only Jomaa's intellectual limitations but his psychiatric and/or psychological condition. This was another matter which was commented on and indeed was the subject of diagnoses by a number of the authors of expert reports which are in evidence. Dr Roberts, for example, diagnosed major depression which required extensive psychological treatment which, according to Dr Roberts, would not be available as long as Mr Jomaa remained in custody. There was a similar expression of concern from Professor Woods, that is, that whatever was needed to address Mr Jomaa's psychological problems or psychiatric diagnoses was unlikely to be adequately available as long as he remained in full time custody. I just make one comment about that before I deal in more detail with his psychological condition. I am not satisfied that at least some appropriate psychiatric treatment would not be available and I do draw attention to the very serious need identified in the reports. I therefore recommend that when Mr Jomaa returns to full time custody that appropriate psychiatric treatment be made available. There is in my view no doubt that Mr Jomaa does have psychological problems which need to be addressed."

1. The Crown's submission that the respondent Jomaa's subjective case was unremarkable ignores these unchallenged findings.

1. In terms of the discount allowed in respect of the assistance of the respondent Blackman, the sentencing judge found that it was of "very little value in a practical sense". Whilst a discount of 5% might be viewed as generous, it could not be regarded as manifestly excessive. The discount was generally consistent with the finding reached by the sentencing judge as to the value of the assistance.

1. The final matter for consideration is the Crown's reliance upon sentences imposed in other cases which were said to be comparative. Before dealing with the substance of that matter, it is appropriate to make some preliminary observations.

1. Firstly, in R v Todoroski [2010] NSWCCA 75 the adoption of a similar approach by the Crown in support of a submission that the sentence imposed was manifestly inadequate gave rise to the following observations by Grove J (with whom Allsop P (as his Honour then was) and Hislop J agreed) at [26]:

"The manifest inadequacy of the sentence was sought to be demonstrated by reference to a selection of other cases which were said to be comparable, and in some of which observations were made about appropriate ranges of sentence. It is not to criticise this approach that I note that every offence and every offender is different and the essential aim of all sentencing is to render individual justice. Comparable cases and statistics can be useful guides and departure from established sentencing patterns would require justification, but the exercise of sentencing discretion must be directed to fulfilment of the stated aim".

1. Such observations are directly apposite to the present case.

1. Secondly, it follows from Grove J's observations that in order to render the individual justice to which his Honour referred, care must be taken when the Court is asked to compare the sentence imposed in one case with the sentence imposed in another (see RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing; see also Nguyen and Pham (supra) at [106] per Johnson J, Macfarlan JA and R A Hulme J agreeing).

1. Thirdly, particular care must be adopted when the Court is asked to engage in such a comparative exercise in cases of attempted possession of illicit drugs. This is because of the broad range of moral culpability which is encompassed by such offending (see Nguyen and Pham (supra) at [110] citing El-Ghourani (supra) at 218; [41]-[44]).

1. Fourthly, the schedule provided by the Crown contained references to 33 separate cases, 10 of which were extracted from the schedule and set out in a separate table contained in the Crown's written submissions. It was submitted by the Crown that those latter 10 cases were "broadly comparable to the facts underlying the objective seriousness of the offences committed by Blackman and Jomaa". The Crown's use of the term "broadly comparable" tends to acknowledge the fact that cases differ, and that there is a need for care in engaging in comparisons.

1. Finally, the Crown did not approach this aspect of the matter by exhaustively analysing, in detail, each and every case. However, I understood that by extracting 10 of the 33 cases in its written submissions, the Crown was arguing that those 10 cases were the most useful for comparative purposes.

1. With all of that in mind, the first observation to be made is that in a number of the 33 cases set out in the Crown's schedule, the amount of the drug was less, as was the role played by the particular offender when compared with the present case. In some cases, those differences were substantial (see for example R v Tran and ors [2013] NSWCCA 136; R v Considine [2013] NSWCCA 97; R v Karan [2013] NSWCCA 53). In each of those three cases, the sentences imposed upon the respective offenders were, as one might expect, less than the sentences imposed upon the present respondents. In my view those cases, and others like them, provide little or no assistance and do not support the Crown's submission that the present sentences are manifestly inadequate. The differentiating features to which I have referred are such that those cases are not properly regarded as comparable, even in the broadest possible sense.

1. Of the 10 cases set out in the Crown's written submissions, 8 involved amounts of drug which were less (and, in the majority of cases, substantially less) than the amount in the present case. The amount of the drug is, as I have pointed out, not determinative of sentence. That said, the amounts in some of those 8 cases are so far removed from the circumstances of the present case that they are immediately distinguishable.

1. The first of the two remaining cases referred to in the table set out in the Crown's written submissions is that of Nguyen and Pham (supra). The Crown cited that case as one in which the criminality of one of the offenders (Pham) was comparable to that of the present respondents.

1. Pham had pleaded guilty to an offence of attempting to possess a quantity of approximately 27 kgs of cocaine which had been imported into Australia. A charge of attempting to possess approximately 13.4 kgs of methamphetamine was taken into account on sentence. At first instance the offender was sentenced to 11 years imprisonment, with a non-parole period of 7 years. That sentence was set aside by this Court and a sentence of 15 years imprisonment, with a non-parole period of 10 years, was imposed. Such sentence took into account a discount of 10% to reflect the utilitarian value of the plea of guilty.

1. The findings reached by the sentencing judge regarding Pham's role were not the subject of challenge on the Crown appeal. That role included (as set out at [36]):

(i)   supervising the co-offender;

(ii)   travelling from Canada to Australia for the specific purpose of engaging in the offending;

(iii)   physically removing what were thought to be drugs from storage, and liaising with persons in Canada;

(iv)   providing instructions to the co-offender, and physically transporting some of what she thought were drugs to another person; and

(v)   engaging in such activities in full awareness of being involved in an enterprise which had, as its object, the distribution of a large quantity of drug.

1. On any view, Pham's criminality was greater than that of either of the respondents in this case. Given that, it is unsurprising that the sentence imposed by this Court upon Pham was greater. In these circumstances, the decision in Pham and Nguyen provides no assistance to the Crown.

1. The second of the two remaining cases in the Crown's table was that of R v Hong; R v Lee [2012] NSWDC 267. In that case, the offenders had come to Australia for the specific purpose of facilitating an importation of approximately 24 kgs of heroin. They were aware not only of the importation, but also of the method by which it was to be effected.

1. The sentencing judge found (at [27]) that both offenders were "critical participants in the enterprise of importing drugs into Australia as well as the initial stages of its intended distribution". He also found (at [29]) that the offenders were "entrusted with the responsibility of managing a consignment of a very large amount of heroin which had arrived in Australia" and were "responsible for its collection, transit to temporary storage and passing on to somebody else in Australia, no doubt for ultimate distribution ...". The activities of the offenders extended over a period of 3 weeks between their arrival in Australia and their apprehension.

1. The offender Hong was sentenced to imprisonment for 15 years with a non-parole period of 10 years, and the offender Lee to imprisonment for 13 years and 6 months, with a non-parole period of 9 years. Each sentence was imposed after applying a discount of 25% to reflect the pleas of guilty which had been entered.

1. I am unable to accept the Crown's submission that the roles of Hong and Lee were comparable to those of the respondents. Their roles are distinguishable on several bases, including the fact that Hong and Lee specifically travelled to Australia to manage the consignment, along with the fact that the activities in which they engaged, and which were directed to the importation, were carried out over a substantially longer period of time than either of the present respondents. That the sentences imposed upon Hong and Lee were greater than those imposed upon the respondents is completely consistent with those circumstances.

1. Senior counsel for Jomaa submitted, in my view with some considerable force, that the following propositions emerged from the 33 cases in the Crown's schedule:

(i)   almost half of the offenders in those cases received sentences which were less than that imposed upon one or both of the respondents;

(ii)   the head sentences ranged from 1 year and 8 months to 18 years;

(iii)   in terms of cocaine, the amounts ranged from 3.173 kgs to 27,153 kgs;

(iv)   some offenders who received lesser sentences than either or both of the respondents occupied roles which were greater;

(v)   in a number of instances where offenders had occupied greater roles, the sentences imposed had been less than those imposed in the present case.

1. All of those matters simply confirm, if any confirmation were needed, that facts of cases obviously differ, and that this will necessarily result in the imposition of different sentences.

1. The sentences imposed upon each of the respondents could well be described as lenient. They fell at the very bottom of what might be regarded as the appropriate sentencing range. However for the reasons outlined, I am not satisfied that either sentence is manifestly inadequate.

1. In particular, reference to the schedule of cases relied upon by the Crown does not support a conclusion that the sentencing judge departed from any established sentencing pattern or range in a way which warrants the intervention of this Court.

ORDERS

1. I would propose the following order in each case:

(i)   The Crown appeal is dismissed.

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Decision last updated: 28 May 2014