DPP (Cth) v Brown

[2017] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0094

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
V
JARED SAMUEL BROWN	Respondent

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JUDGES:	MAXWELL P, SANTAMARIA JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2016
DATE OF JUDGMENT:	23 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 162
JUDGMENT APPEALED FROM:	[2016] VCC 511 (Judge Smith)

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CRIMINAL LAW – Sentence – Crown appeal – Plea of not guilty – Importation of commercial quantity of methamphetamine – Two importations – First importation 4.5 times commercial quantity – Sentence of seven years’ imprisonment – Second importation almost 60 times commercial quantity – Sentence of 10 years’ imprisonment – Total effective sentence of 12 years’ imprisonment with non-parole period of seven years – Whether sentence manifestly inadequate – Offence committed for financial gain – Need for general deterrence – Comparable cases – Sentence manifestly inadequate – Respondent resentenced to 11 years’ imprisonment on the first charge and 16 years’ imprisonment on the second charge – Total effective sentence of 20 years’ imprisonment with non-parole period of 15 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Doyle	Ms A Pavleka, Commonwealth Solicitor for Public Prosecutions
For the Respondent	Ms C A Boston	Melasecca, Kelly & Zayler

MAXWELL P

SANTAMARIA JA

BEALE AJA:

Summary

1  Importing a border controlled drug is a Commonwealth offence.  As is the case for State offences of drug trafficking, the sentencing regime for Commonwealth importation offences is quantity-based.[1]  If the quantity imported is less than a commercial quantity of the drug in question (but greater than a marketable quantity), the maximum penalty is 25 years’ imprisonment.  If the quantity imported is greater than a commercial quantity (as in the present case), the penalty is life imprisonment.[2]

[1]Adams v The Queen (2008) 234 CLR 143.

[2]Criminal Code Act 1995 (Cth) s 307.1(1).The same applies to the Commonwealth offence of trafficking in a commercial quantity of a drug:  Sergi v DPP (Cth) [2015] VSCA 181.

2  There is an important distinction between the two regimes, however.  The sentencing framework for importation offences does not draw the distinction between ‘commercial quantity’ (‘CQ’) and ‘large commercial quantity’ (‘LCQ’) which has been part of the State scheme since 2001.[3]  Thus, as the present case illustrates, the offence of importing a commercial quantity of a drug (‘CQ importation’) can involve very large quantities indeed.

[3]See Drugs, Poisons and Controlled Substances Act 1981 ss 71, 71AA.

3  The respondent (‘Brown’) was convicted after a trial of two separate charges of CQ importation.  On both occasions, the drug was methamphetamine.  The commercial quantity threshold for that drug is 750 grams.  On the first occasion, 3.4 kilograms of pure methamphetamine was imported, representing 4.5 times the CQ threshold (4.5 CQ); on the second occasion, 44.7 kilograms was imported, representing 60 times the CQ threshold (60 CQ).

4  For the reasons given by this Court in Director of Public Prosecutions (Cth) v KMD,[4] expressing the quantity imported as a multiple of the CQ threshold gives a much clearer picture of the (relative) scale of an importation and provides an important guide to the (relative) seriousness of the offence.[5]  As the Court affirmed in that case, comparisons between sentences by reference to the quantity imported will usually be illuminating.  Use of CQ multiples enables meaningful comparisons to be drawn between cases involving different drugs. 

[4][2015] VSCA 255.

[5]Ibid [54]–[57].

5  Such comparisons are indispensable when, as here, the Director of Public Prosecutions (Cth) (‘the Director’) argues that the sentence imposed is out of step with the sentences imposed in comparable cases.  As will appear, the Director relied — on the plea and again in this Court — on a number of decisions of this Court and of the New South Wales Court of Criminal Appeal.  The table of cases provided by the Director is attached to these reasons.

6  For reasons which follow, we would uphold the Director’s appeal.  This was offending of the utmost seriousness, given the scale of the importations and the profit motive which drove Brown’s involvement.  This is especially true of the second, much larger, importation in respect of which Brown’s culpability is much greater, given his calculated decision to persist in offending, and on a vastly greater scale.  While not the mastermind, Brown played a key role in effectuating the importations.  He pleaded not guilty and has shown no remorse.

7  As the High Court emphasised in R v Pham,[6] the search for consistency in sentencing for federal offences ‘requires that sentencing judges have regard to what has been done in comparable cases throughout the Commonwealth’.[7]  In the present case, counsel for the Director demonstrated convincingly that the sentences on both charge 1 and charge 2 were well below what was required, proper regard being had to the comparable cases.

[6](2015) 256 CLR 550 (‘Pham’).

[7]Ibid 558 [24].

8  We would resentence Brown to 11 years on the smaller importation charge and to 16 years on the larger charge.  With cumulation, we would fix a total effective sentence of 20 years, and set a non-parole period of 15 years.

9  As the Director submitted, general deterrence was a sentencing consideration of great importance in this case.[8]  There needed to be a clear signal to would-be offenders, motivated by the potential financial rewards of drug importation, that detection will inevitably lead to very lengthy terms of imprisonment.

[8]See DPP (Cth) v Thomas (2016) 315 FLR 31, 94 [193] (‘Thomas’).

10  As this Court pointed out in Director of Public Prosecutions (Vic) v Russell,[9] however, a prison sentence can only have that wider deterrent effect if it is publicised across the community.  What the Court said there, in relation to sentencing for an offence of violence, applies with equal force to drug offences:

Courts have neither the expertise nor the resources to engage in the kind of sustained community education which is necessary if general deterrence is to be a reality.  That is a task for government.

After all, it is the responsibility of government to ensure public safety.  And government must therefore take responsibility for communicating the deterrent message to those who need to hear it.  That requires sustained effort and the commitment of substantial resources …[10] 

[9](2014) 44 VR 471.

[10]Ibid [5]–[6] (Maxwell, Weinberg and Santamaria JJA).

Circumstances of the offending

11  On 24 March 2013, a vessel arrived in Melbourne from Long Beach, California.  A shipping container was unloaded from that vessel in which was located, amongst other goods, four motor vehicle engines.  Concealed within the car engines were packages containing approximately 4.4 kilograms of bulk methamphetamine.  The shipment had been arranged by a Californian resident, Dennis McAndrew, who operated a business in Los Angeles called JT Core Buyers.

12  The engines were collected from the docks area and taken to premises in Thomastown.  McAndrew flew from Los Angeles to Melbourne, where he collected the engines from the Thomastown premises and, initially, drove the engines to Sydney.  He later returned with them to Melbourne.  On 8 April 2013, Brown made contact with McAndrew and arranged to meet him.

13  On 9 April 2013, Brown and McAndrew took the engines to premises in Altona, which were being occupied by a friend of Brown.  There, with some minor assistance from Brown, McAndrew dismantled the engines and removed the packages of methamphetamine from them.  Brown then took the packages and stored them in a cubby house at his parents’ home in Warragul.

14  On 18 April 2013, Brown arranged to meet a man in the car park at Chadstone shopping centre.  There, Brown handed over the drugs to him.  These events constituted the conduct giving rise to the first charge of CQ importation (charge 1).

15  On 21 July 2013, another vessel arrived in Melbourne from Long Beach containing a shipping container.  Inside the shipping container were a further nine motor vehicle engines.  Secreted within those engines were 102 packages containing 44.667 kilograms of pure methamphetamine.  Customs officials detected abnormalities concerning those engines and Australian Federal Police officers attended and dismantled them.  The packages were located and the methamphetamine substituted with salt.  The packages were then placed back into the engines, which were reassembled and made available for collection from the wharf.

16  In due course, the nine engines were collected and taken to the Thomastown premises.  McAndrew again flew from Los Angeles to Melbourne and collected the engines from the Thomastown premises with a rental truck.

17  Soon after, Brown contacted McAndrew and agreed to meet him.  The pair took the engines to Brown’s parents’ home.  Over the following two days, the nine engines were dismantled by McAndrew, with some assistance from Brown.  The packages, now containing salt, were removed. 

18  Brown then took the packages back to his apartment in Richmond.  McAndrew returned to a motel in Reservoir where he had been staying, intending to fly back to Los Angeles.  Unbeknown to Brown and McAndrew, Australian Federal Police officers had the pair under surveillance.  Brown’s mobile phone had been tapped and listening devices had been installed in the rental truck used by McAndrew.

19  Brown and McAndrew were arrested on 3 August 2013.  The substituted packages were seized.  These events constituted the conduct giving rise to the second charge of CQ importation (charge 2).

20  The Australian Federal Police had not been aware of the first importation until after Brown’s arrest following the second importation.  At that time, Brown’s mobile phone was seized and details of his earlier messaging with a man known as Ricardo Vacca were obtained from it.  Brown had met Vacca in Mexico whilst he was studying there in 2006 and the two of them had stayed in contact.  The messages contained extensive details concerning Brown’s involvement in the first and second importations.

21  Brown’s defence at trial in respect of both charges was that he had carried out the conduct constituting the offences under duress.  The basis of the defence was alleged threats from Vacca and his associates, who had advised Brown in January 2013 that they intended to import drugs into Australia and needed someone who they trusted to facilitate this.  Brown gave evidence that threats of violence were made in respect of his girlfriend and her family, who resided in Mexico, and in respect of Brown and his family in Victoria, if he did not agree to cooperate with them.

22  In the event, the prosecution successfully negated the defence of duress.  The sentencing judge said that the verdicts of the jury reflected their finding that the prosecution had established, beyond reasonable doubt, one or more of the following propositions, namely that Brown did not reasonably believe that:

(a)     a threat had been made to him that would be carried out unless the offences in question were committed by him;

(b)     there was no reasonable way that the threats could have been rendered ineffective;  or

(c)     his conduct in committing the offences was a reasonable response by him to the threats.[11]

[11]DPP (Cth) v Brown [2016] VCC 511 [41] (‘Sentencing remarks’).

23  The sentencing judge said that he was to sentence Brown on the basis that he was not acting under duress at the time when he committed the offences in question.[12]  Brown was sentenced as follows:

[12]Ibid [42].

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Importing a commercial quantity of a border controlled drug	Life imprisonment and/or 7,500 penalty units	7 years[13]	2 years
2	Importing a commercial quantity of a border controlled drug	Life imprisonment and/or 7,500 penalty units	10 years	Base
Total Effective Sentence:		12 years
Non-Parole Period:		7 years
Pre-sentence Detention Declared:		262 days

[13]No commencement date for the sentence imposed on charge 1 was set by the sentencing judge pursuant to s 19 of the Crimes Act1914 (Cth). Both parties agree that the setting of a commencement date is necessary and the Court of Appeal is empowered by s 104A(5A) of the Sentencing Act1991 to correct the form of the order made.

24  The Director filed a notice of appeal which contains one ground of appeal:

1The individual sentences, total effective sentence and non-parole period imposed on Brown are manifestly inadequate.

Particulars

(1)In imposing sentence, the learned sentencing judge failed to give sufficient weight to:

(a)       the need for general deterrence;

(b)       the need for consistency in sentencing;

(c)       the maximum penalties for the offences;

(d)      the nature and circumstances of the offences;  and

(e)the need to ensure Brown was adequately punished.

(2)In imposing sentence, the learned sentencing judge gave too much weight to:

(a)Brown’s prospects for rehabilitation and prior character; and

(b)the delay in the resolution of the charges against Brown.

Sentencing remarks

25  Brown was 33 at the time of sentence and 31 at the time of the offending.  He was born and raised in Warragul and had enjoyed a happy upbringing.  He was single at the time of sentence.[14]

[14]Ibid [24]–[27].

26  In 2006, as part of a tertiary course, Brown spent a year attending university in Guadalajara, Mexico.  Upon returning to Australia, he discontinued his tertiary studies and commenced full-time employment.  By 2012, he was working for a company operating in Papua New Guinea, on a ‘28 days on, 28 days off’ basis.  During his ‘off’ days, he would visit his girlfriend, Marisela, in Mexico.  It was during these times that he also met with Vacca and his associates.[15]

[15]Ibid [30]–[34].

27  In Nguyen & Phommalysack v The Queen,[16] Maxwell P said that sentencing judges dealing with drug importation offences would derive great assistance from a series of propositions distilled from the authorities by the New South Wales Court of Criminal Appeal in R v Nguyen & Pham.[17]  It was common ground on the plea in the present case that those propositions were applicable.  They were set out in full by the sentencing judge. 

[16](2011) 31 VR 673, 681 [33] (‘Nguyen & Phommalysack’).

[17](2010) 205 A Crim R 106, 126–8 [72].

28  His Honour made the following findings:

(a)     the offences were serious and involved a large quantity of methamphetamine — the first importation involved a quantity six times CQ,[18] the second involved approximately 60 times CQ;

[18]This was an error.  The Crown’s sentencing submission stated that the quantity of pure methamphetamine was 3.4 kilograms, which represented 4.5 times CQ.

(b)     the drug involved, methamphetamine, had a number of negative effects when taken and was often associated with violent behaviour;

(c)     crystal methamphetamine, the form in which the drug was imported, was the purest and most potent form of the drug and involved many dangers of physical injury;

(d)     the wholesale value of the drugs the subject of the first importation was between approximately $660,000 and $968,000.  The street value was between $3.3 million and $4.4 million.  The wholesale value of the drugs the subject of the second importation was between approximately $8.4 million and $12.3 million.  The street value was between $42 million and $56 million.  The sums of money involved and potential profits were large;

(e)     the offending was motivated by greed;

(f)      although there was little evidence as to what financial gain Brown stood to make, it was inferred that the returns to Brown would have been significant;

(g)     Brown did not plead guilty and no remorse was apparent;

(h)     although Brown had provided the name of Ricardo Vacca to police following his arrest, the sentencing judge considered there to be many aspects of his involvement where Brown had provided little to no cooperation;

(i)      Brown had no prior convictions of relevance;

(j)      Brown had committed offences of possessing amphetamine and cannabis, as well as possession of diazepam without a prescription, whilst on bail for the current offences;

(k)     Brown had no mental health issues and was in good health;  and

(l)      the maximum penalty for the offence was life imprisonment, which indicated the seriousness with which Federal Parliament viewed the offences in question.[19]

[19]Sentencing remarks [47].

29  The prosecutor and counsel for Brown had made differing submissions as to the role played by Brown in the offending.  Brown’s counsel submitted that he was ‘a mere warehouse man and not much more’, whereas the prosecutor submitted that Brown’s role was a significantly greater one.[20]

[20]Ibid [50]–[51].

30  The judge concluded that Brown was not a co-ordinator, principal or mastermind.  But he had played an important and essential role.[21]  He was responsible for dismantling and unloading the engines at a private location;  storing the drugs pending delivery to a buyer;  and delivering the drugs to the buyer.[22]  The sentencing judge did not accept that Brown was involved in actively selling the drugs, receiving money or remitting money back to somewhere overseas.  Brown had, however, admitted to playing a role in the importation, and the evidence made it clear that he was a party to the importation, or was well aware of it in the months or weeks leading up to it.

[21]Ibid [64].

[22]Ibid [53].

31  It was wrong, therefore, to think of Brown’s role as merely that of a warehouse man.[23]  Brown’s role was to make contact with McAndrew and facilitate the unloading of the drugs from the engines.[24]  Brown decided where to unload the engines, and provided McAndrew with the necessary tools and a suitable place to dismantle the engines with adequate privacy.[25] 

[23]Ibid [54].

[24]Ibid [55].

[25]Ibid.

32  The sentencing judge found that, in view of the jury’s verdict, Brown was to be sentenced on the basis that he was a willing participant in the importations.[26]

[26]Ibid [57].

33  The evidence showed that Brown anticipated profiting from his role, at least to some degree.  The second importation, involving as it did 44 kilograms of pure methamphetamine, meant that Brown would have anticipated sharing in a significant commission or profit.[27]

[27]Ibid [59].

34  The sentencing judge found that Brown did not have knowledge as to the identity of the border controlled drug involved in the first importation.  However, it was clear that he was aware that the second importation involved methamphetamine before its arrival.[28]  The judge also found that Brown did not know the quantity of drug involved in respect of the second importation.[29]

[28]Ibid [62].

[29]Ibid [63].

35  Brown had good prospects for rehabilitation, notwithstanding his involvement in drugs of dependence whilst on bail.[30]  A delay of more than two-and-a-half-years occurred between charges being laid and the trial coming to an end through no fault of any party.  This delay was taken into account.[31]

[30]Ibid [66].

[31]Ibid [70]–[71].

36  The judge referred to Pham[32] as having signalled ‘the caution required in referring to tables and charts and statistics concerning other sentences imposed in other cases’.[33]  Nevertheless, his Honour said, it was clear from the cases referred to by both counsel that persons convicted of offences such as this were ‘generally sentenced to a significant period of imprisonment’.[34]

[32](2015) 256 CLR 550.

[33]Sentencing remarks [75].

[34]Ibid.

The Director’s contentions

37  In her written submissions, the Director contended that the inherent seriousness of Brown’s offending was underscored by the fact that the offence of importing a CQ of a drug carried a maximum penalty of life imprisonment.  The Director contended that there was little to mitigate Brown’s sentence.  He could not rely on a plea of guilty and had shown no remorse.  His offending was not driven by addiction or any form of socio-economic disadvantage.  Rather, he was motivated by greed.  Brown had advance knowledge of the importations and had played an essential role in effecting them.

38  The Director pointed to various features of Brown’s offending.  The first was its sheer scale and the duration of the offending.  After the first importation, Brown returned to Mexico and had discussions with the syndicate.  Brown had the opportunity to calculate the risks that he was running and to accept them as the price of the rewards promised.  He was a well-educated person who was a party to bringing drugs into Australia.  Brown played an executive and autonomous role.  He took the drugs to various locations and delivered them to the designated recipient.  According to the Director, Brown’s moral culpability was not diminished on the basis of threats, and he had not asked the sentencing judge to make a finding of diminished moral culpability.

39  The Director said that the sentence did not reflect the gravity of Brown’s offending, or the need to deter others from pursuing the substantial profits which drug trafficking can realise.  The demands of general deterrence were high.  The sentence was said to be inconsistent with those imposed for similar offending within the Commonwealth.  The imperatives of general deterrence and consistency in sentencing had particular significance for this appeal.

40  Referring to Pham,[35] the Director submitted that the pursuit of consistency in sentencing required consideration of comparable cases.[36]  The Director referred to Thomas,[37] OPQ v The Queen[38] and R v Harrington[39] and to the tables attached to the reports of those cases.  She also referred to Nguyen & Phommalysack.[40]  The Director contended that the Court should take into account decisions where the circumstances made the case relevantly comparable or ‘instructively different’.[41]  The Director drew particular attention:

[35](2015) 256 CLR 550.

[36]Ibid [24].

[37](2016) 315 FLR 31, 106–7 [254]–[259].

[38](2012) 221 A Crim R 424.

[39](2016) 11 ACTLR 215.

[40](2011) 31 VR 673.

[41]She referred to DPP v Frewstal Pty Ltd (2015) 47 VR 660, 671 [49] (Maxwell P) and Pham (2015) 256 CLR 550.

(a)     in relation to the sentence on charge 1 — to R v Banker[42] and Thomas;[43] and

(b)     in relation to the sentence on charge 2 — to R v Yuan,[44] Director of Public Prosecutions (Cth) v Peng[45] and McCraw  v The Queen.[46]

[42][2016] QCA 74 (‘Banker’).

[43](2016) 315 FLR 31. The offenders in this case were Thomas and Wu.

[44](2015) 252 A Crim R 422.

[45][2014] VSCA 128.

[46][2011] NSWCCA 162.

We consider these decisions below.

Brown’s contentions

41  The submission for Brown was that the Director had failed to satisfy the stringent test for establishing manifest inadequacy set out in Director of Public Prosecutions v Karazisis.[47]  According to Brown, the sentencing judge had a particular advantage in having seen him give evidence at two trials (the first jury being discharged after they were unable to reach a verdict).  That advantage was said to be particularly important given his testimony that he became involved in the offending due to threats he received regarding the safety of his girlfriend and her family in Mexico.  Brown’s submission was that, although the verdict meant that the jury had rejected his defence of duress, the sentencing judge recognised that there were a number of possible bases for the jury’s verdict, including the possibility that Brown had received threats regarding the safety of his girlfriend and her family.

[47](2010) 31 VR 634, 662–3 [127] (‘Karazisis’).

42  It was not disputed that Brown was aware of the planned importations in the months or weeks leading up to them.  At the same time, the sentencing judge found that he did not know the identity of the drug involved in the first importation, or the quantity involved in the second importation, until after their arrival in Australia.  This was said to be highly relevant to assessing his position within the hierarchy of the enterprise.

43  According to the submission, the nature of importation offences was such that almost all of the persons involved — from couriers to syndicate operators — played an essential and important role in the enterprise.  Brown accepted the sentencing judge’s description of his role but emphasised the finding that he was not a coordinator, principal or mastermind.  His offending was said to be unsophisticated and showed the marks of naivety.  He had used his own car and had used the houses of friends and family for storage.

44  Accepting that the second importation involved a large quantity of drugs, Brown contended that quantity was not the principal sentencing factor, even where the accused was aware of the quantity involved.[48]  In the present case, the sentencing judge found that Brown was not aware of the quantity of drugs imported in respect of the second charge.  Accordingly, so it was said, quantity was of even less significance.  According to Brown, this was an important factor distinguishing this case from those cases upon which the Director relied.  The High Court has recognised, he argued, that the size of the importation has increased significance when the offender is aware of the amount of drugs imported.[49]

[48]Brown referred to Nguyen & Phommalysack (2011) 31 VR 673, 681–3 [34].

[49]Brown referred to Wong v The Queen (2001) 207 CLR 584, 607–8 [64] (‘Wong’); R v Nguyen (2010) 205 A Crim R 106, 126–8 [72] (adopted by this Court in Nguyen & Phommalysack (2011) 31 VR 673, 681 [33]).

45 In the present case, the prosecution provided the sentencing judge with a folder containing relevant cases, together with a table summarising them and a written submission detailing how the sentences imposed in other cases should be taken into account. Counsel for Brown drew attention to the judge’s observation that ‘caution [is] required in referring to tables and charts and statistics concerning other sentences imposed in other cases’,[50] and submitted that the judge was simply making clear that he did not rely solely on the table of cases provided. His Honour had obviously considered the cases, as he concluded:

[I]t is clear from the cases to which I was referred by both counsel that persons convicted of offences such as these are generally sentenced to a significant period of imprisonment.[51]

[50]Sentencing remarks [75].

[51]Ibid.

46  According to Brown, the cases said by the Director to be ‘comparable’ were provided to the sentencing judge before he had rejected the majority of the Director’s submissions as to Brown’s role.  According to Brown, the following factors in the present case distinguished it from the ‘comparable’ cases:

(a)       the fact that Brown was not aware of the drug involved in the first importation, or the quantity involved in the second, until after their arrival in Australia;

(b)      evidence of threats to Brown’s girlfriend;

(c)       the delay in the matter being finalised;[52]

(d)      his lack of relevant prior convictions;  and

(e)       the likelihood that he will never offend in such a manner again.[53]

[52]Brown said that the sentences imposed take into account the considerable delay between the commission of the offences (in early 2013) and sentence (on 27 April 2016).

[53]Brown relied on the fact that he had no relevant prior convictions, despite being 33 years old; he has the support of a good family; and his work history was excellent.  According to Brown, the sentencing judge also had the considerable advantage of seeing several witnesses testify as to his good character: (a) Albert George Jackson, former high school teacher and football and soccer coach; (b) William Albert Crotty, his occasional employer; and (c) Colin Arthur Brown, his father.

Residual discretion

47  Brown contended that, even if the Director were to establish manifest inadequacy, the Court should exercise its residual discretion to decline to interfere with the sentence imposed.  Several matters were said to enliven the Court’s discretion in the present case:

(a)       the alleged sentencing error related only to the particular case;

(b)      although defence counsel on the plea disavowed reliance on R v Verdins[54] (and, accordingly, the sentencing judge did not take any of those considerations into account), the prosecutor had quite properly conceded that Brown was entitled to rely on principle 5 as set out in that case, because, according to Dr Lester Walton, the existence of ‘clinically significant levels of anxiety and depression’ at the time of sentencing did ‘imply that he will endure imprisonment as somewhat more onerous than others’;

[54](2007) 16 VR 269, 276 [32].

(c)       there had been a significant delay in the finalisation of these matters since the offending occurred in early 2013, including the discharge of a jury one year before Brown’s conviction; and

(d)      Brown posed no risk to the community, with the sentencing judge finding it ‘most unlikely’ that he will commit such an offence in the future.

48  In oral submissions, counsel for Brown said that the sentence imposed was not ‘clearly outside’ the appropriate range.  In addition, counsel advanced five contentions which, it was said, should result in the sentence remaining undisturbed.

49  First, the sentencing judge had presided over two trials and had a very good opportunity to form an accurate understanding of Brown.  The judge heard Brown give evidence at both trials, including of the threats that had been made and of the role he performed in the two importations.  The presence of those threats was a relevant mitigating factor.

50  Second, there was the objective seriousness of the criminality.  Brown was not the mastermind behind the importation; nor did he coordinate the roles of other people.  He was not aware of the quantities (or type, in respect of the first importation) of drugs imported.  He was naïve and unsophisticated in his offending.  Accordingly, Brown should have been sentenced on the basis of his lower moral culpability. 

51  Third, the sentencing judge was right to assess Brown as having excellent prospects of rehabilitation.   

52  Fourth, Brown had suffered as a result of the delay in his prosecution.  He had been arrested on 3 August 2013.  His trial had commenced in March 2015, and he had not been sentenced until April 2016.  In that time, the charges were hanging over his head and his rehabilitation had commenced.

53  Fifth, while the sentences in other cases were relevant, close attention had to be given to the particular circumstances of each case.  Unlike the cases that the Director had referred to, in the present case Brown (a) did not know the type or quantity of drugs being imported; (b) had suffered from a significant delay between arrest and conviction; and (c) had been the subject of threats.

Analysis

54  Every sentence involves the exercise of discretion; each should be the product of an instinctive synthesis.[55]  In Hudson v The Queen,[56] this Court said:

The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender.  It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.  The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ.  For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.[57]

[55]R v Williscroft [1975] VR 292, 300 (Adam, Starke and Crockett JJ). See Markarian v The Queen (2005) 228 CLR 357, 384–90 [66]–[84] for McHugh J’s explanation of the origin of the phrase ‘instinctive synthesis’ in Williscroft and of its proper meaning.  See also R v Kenny (Unreported, Court of Criminal Appeal, Melbourne, Young CJ, Starke and Marks JJ, 2 October 1978) 2–3; Thomas (2016) 315 FLR 31, 89–90 [176].

[56](2010) 30 VR 610.

[57]Ibid 616 [27].

55  Given the discretionary nature of sentencing, the grounds of manifest excess and manifest inadequacy are difficult to establish.  In Karazisis,[58] Ashley, Redlich and Weinberg JJA said:

As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good.  Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.  Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[59] 

[58](2010) 31 VR 634.

[59]Ibid 662–3 [127] (citation omitted). See also DPP v Daing [2016] VSCA 58 [42]; DPP (Cth) v Watson [2016] VSCA 73.

56  Sentencing is a discretionary power confided to the sentencing judge and reasonable minds will differ as to what is the appropriate sentence in a particular case.  There is no ‘correct’ sentence.  Consideration of current sentencing practices assists in promoting consistency of approach.  But sentences in other cases of the same offence are not precedents.[60]  Where those sentences can be seen to fall within a range, that range informs, but cannot determine, the appropriate sentence in a particular case.[61]

[60]See, eg, DPP v Zhuang (2015) 250 A Crim R 282, 292 [30].

[61]R v Kilic (2016) 339 ALR 229, 235–6 [21]–[22]. In this case, the Court was considering s 5(2)(b) of the Sentencing Act 1991. The present case falls under s 16A of the Crimes Act 1914 (Cth). Section 16A makes no reference to ‘current sentencing practices’. However, the same considerations apply as those mandated by s 5(2)(b).

57  Fairness demands that there should be reasonable consistency in sentencing.[62]  Further, in the absence of such reasonable consistency, the administration of justice is brought into disrepute.  It is for the Court to determine what sentences should be considered in order to satisfy the norm of reasonable consistency.  In practice, a court is assisted in fulfilling this obligation when the parties bring to the court’s attention cases which are said to be comparable to the case in hand.  Usually, this is done by the preparation of tables of comparable cases.  The utility of such tables will depend on how informative they are.  Bare sentencing statistics may suggest a range in respect of sentences for a particular offence.  But such statistics will not reveal the circumstances peculiar to a particular case.

[62]Wong (2001) 207 CLR 584, 591 [6]; DPP (Cth) v Peng [2014] VSCA 128 [31].

58  Sentencing requires consideration of comparable cases:  ‘Equal justice requires identity of outcome in cases that are relevantly identical.  It requires different outcomes in cases that are different in some relevant respect.’[63]  In Pham,[64] the High Court identified the twofold purpose in the use of comparable cases:

[63]Wong (2001) 207 CLR 584, 591 [6] (Gleeson CJ), 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis in original); Thomas (2016) 315 FLR 31, 88–9 [173].

[64](2015) 256 CLR 550.

(a)     they ‘provide guidance as to the identification and application of relevant sentencing principles’;[65]  and

(b)     analysis of them ‘may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence’.[66] 

[65]Ibid 558 [26], following Hiliv The Queen (2010) 242 CLR 520, 535. See also Thomas (2016) 315 FLR 31, 89 [174].

[66]Pham (2015) 256 CLR 550, 558 [26] (French CJ, Keane and Nettle JJ), following Hili v The Queen (2010) 242 CLR 520, 537 [54]. See also Thomas (2016) 315 FLR 31, 89 [174].

59  In Nguyen v The Queen,[67] Redlich JA (with whom Tate and Whelan JJA agreed) said:

[67](2016) 311 FLR 289.

These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles. By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.

…

Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with ‘relevant comparators’.[68]

Objective gravity of offence

[68]Ibid 311–2 [69]–[72] (citations omitted). See also Thomas (2016) 315 FLR 31, 89 [175]; Elmaghraby v The Queen [2016] VSCA 326 [59].

60  First, it is necessary to consider the objective gravity of the offending.  In Nguyen & Phommalysack,[69] Maxwell P said:

Where a commercial quantity of a drug is imported, the maximum penalty for importation and for possession is life imprisonment.  Self-evidently, therefore, the offence is to be viewed as being of the utmost seriousness. The sentencing regime being quantity-based, the scale of the importation will be a very significant factor in sentencing.  Ordinarily, the larger the quantity imported, the more serious will be the offence (other things being equal).[70]

[69](2011) 31 VR 673.

[70]Ibid 676 [2] (citations omitted). In that case, Maxwell P referred to and adopted the analyses of sentencing principles in drug importation cases contained in R v Nguyen (2010) 205 A Crim R 106, 126–8 [72] and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 62 [255], 63–4 [261], 64–6 [267].

61  In the present case, the objective seriousness of the offending is very great.  Although Brown was not the principal, he played a major role and his place in the hierarchy of the enterprise was important.  The quantities of drugs involved were very large.  As noted earlier, the first importation involved nearly 4.5 times CQ.  The second involved approximately 60 times CQ, which represented importation ‘on a massive scale’.[71]  Other things being equal, the greater the quantity involved the more serious is the offence.[72]  Counsel for Brown properly conceded that the logic of this proposition was irresistible.

[71]Cf Nguyen & Phommalysack (2011) 31 VR 673, 692 [70].

[72]DPP (Cth) v KMD [2015] VSCA 255 [52].

62  In total, the drugs had a ‘street’ value of between $45.3 million and $60.4 million.  The offending was also motivated by greed; Brown anticipated profiting from his role.  After the first importation, Brown returned to Mexico and had discussions with the syndicate.  As the Director submitted, he had the opportunity at that time to consider the risks he was running.  He chose to accept the risks in return for the rewards he was promised.  

Circumstances of the offending and the offender

63  Next, it is necessary to consider ‘the circumstances in which the offence was committed and the character, antecedents and conditions of the offender’.[73]  We agree with the Director that there was little to mitigate Brown’s sentence.  He could not rely on a plea of guilty, and was unremorseful.  His offending was not driven by addiction, or any form of socio-economic disadvantage;  he was motivated by greed.  He had advance knowledge of the importations and played an essential role in effecting them. 

[73]Hudson v The Queen (2010) 30 VR 610, 616 [27].

64  The offending took place over the course of at least four months.  Brown agreed to participate in January 2013; the first importation was in March 2013; the first delivery to a buyer was in April 2013; and the second importation took place in July-August 2013.  After the first importation, Brown returned to Mexico and had discussions with the syndicate.  The syndicate knew that it had a person it could trust.  The duration was significant as it showed that this was purposeful offending with time to reflect; it was not spontaneous. 

65  As noted earlier, Brown relied on the finding that he was neither a mastermind, nor a principal, nor the coordinator of other people.  The role played by an offender is a highly relevant factor but the assessment of the degree of involvement depends upon the substance of the matter, not the label that might be attached to it. 

66  While it is true that Brown did not sit at the top of the hierarchy, it is clear, given the quantity of drugs that he had been commissioned to handle, that he had been entrusted with considerable responsibility.  While he might not have known, at the point of importation, the quantities being imported, he soon learnt of the relevant quantities and did not withdraw from the enterprise in which he had become involved.  In the second importation, for example, he had participated in the extraction of 102 packages of the drug before delivering them to Richmond.

67  Brown played an executive role in each of the importations.  He was not just a person who moved drugs from one point to another who was readily replaceable.  Within his designated sphere of operations, he was an autonomous operative.  He made decisions as to what to do with the drugs when they were brought into Australia.  At the time of the first importation, he took the drugs to Altona and then to his parents’ house in Warragul.  At the time of the second importation, he was recorded as saying to his co-offender, ‘I’m supposed to be running this side of it’.  In August 2013, he took the drugs to Warragul where he assisted McAndrew in the process of extracting the 102 packages.  He then took the packages to Richmond.  There could be no doubt that he understood what he was handling and its quantity.

68  As has been said repeatedly in relation to drug importation and trafficking, the demands of general deterrence are high.  Sentences must signal to would-be importers ‘that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment’.[74]

[74]R v Nguyen & Pham (2010) 205 A Crim R 106, 127 [72], cited in Nguyen & Phommalysack (2011) 31 VR 673, 682 [34].

Comparable cases

69  In the present case, the Director provided the Court with the schedule of comparable cases provided to the sentencing judge.  That schedule is attached to these reasons.  In Thomas,[75] this Court considered the use of tables of comparable cases:

[75](2016) 315 FLR 31.

Something then should be said about the production of schedules or tables of cases on a plea, particularly by the prosecution. The joint judgment in Barbaro stated that ‘[i]f a sentencing judge is properly informed about ... the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range’.  Conversely, if the judge is not sufficiently informed about such matters the judge will not have been assisted in carrying out the sentencing task in accordance with proper principle.  In Matthews v The Queen, Warren CJ, Nettle and Redlich JJA confirmed that nothing said in Barbaro changed any pre-existing duty of the prosecutor to assist the court by the making of submissions as to comparable and relevant cases.  Similarly in R v Ogden, the Queensland Court of Appeal said it was part of the prosecutor’s duty to assist the sentencing judge by supplying comparable sentencing decisions in order that the sentencing judge take them into account for guidance or as a ‘yardstick’ against which to examine the proposed sentence.

The identification of ‘like’ or comparable cases, and their importance to the instinctive synthesis, is clear enough, but if a table or schedule is to be employed to that end, it is essential that the content of the table or schedule offer considerably more than numerical information about those sentences in past cases. The point being made by the joint judgment in Hili is that numerical equivalence has no utility when it says nothing about why sentences were fixed as they were. Quoting De La Rosa, which in turn cited Wong, the joint judgment further said that a table recording sentences imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal.

In addition to providing sufficient information about the features of each case to enable a judge to determine the degree to which it may be viewed as comparable, the prosecution must make plain the purpose for which each particular case is relied upon.  Is it a comparable case or is its relevance that it is so different that the sentence there imposed would not lie within a sound exercise of the discretion in the present case? We shall return to the importance of parties distinguishing between those cases set out in a table that are said to be comparable and those which are not.

In Director of Public Prosecutions (Cth) v Pham, the Court of Appeal (and County Court below) had received a table which contained a number of inaccuracies. Ashley JA, with whom Tate and Santamaria JJA agreed, noted that tables should be in a readily accessible form. His Honour said:

counsel for the Crown initially seemed to suggest that it was for defence counsel or the judge to work out what criticism could be made of the schedule; something which could be done by reading the decisions. But I do not accept that this is so. The Commonwealth Crown ought be a model litigant. It is not satisfactory that a busy sentencing judge should be provided with a schedule which is inaccurate in part and unhelpful in part.

Comparable cases, presented in a tabulated form or schedule, can be of great assistance to judges, but only if they contain that necessary information. Their function is to provide a sound basis from which the judge may determine whether there is a relevant sentencing pattern to be discerned from the history of sentences available. Where, as in the present case, the table does not on its face illuminate the relevance of the cases listed, the table will be of limited assistance. This is precisely what Maxwell P had in mind in Director of Public Prosecutions v Frewstal Pty Ltd when stating that information about comparable cases

must be confined to cases which are properly described as relevant comparators (whether because they are materially the same or because they are instructively different), and sufficient information must be provided to enable the judge to make meaningful comparisons.

None of this is to suggest that the sentencing judge is confined to the material furnished by the parties in discharging the responsibility of striving for reasonable consistency when fixing a sentence. In order to achieve systematic fairness, a sentencing judge, with or without the assistance of the parties, must inform themselves as to any relevant history of sentencing patterns within which a sound exercise of the sentencing discretion may be made.[76]

[76]Ibid 90–1 [178]–[183] (citations omitted). See also Lieu v The Queen [2016] VSCA 277.

70  In the present case, the sentencing judge said:

I have had regard to a number of sentences passed upon other persons convicted of similar offences. Counsel referred me to a number of them. I have noted the comments of the High Court in the decisions of The Queen v Pham that each case will depend on its own facts and circumstances. I also note the comments of the Court relating to the caution required in referring to tables and charts and statistics concerning other sentences imposed in other cases. Notwithstanding, it is clear from the cases to which I was referred by both counsel that persons convicted of offences such as these are generally sentenced to a significant period of imprisonment.[77]

[77]Sentencing remarks [75] (citation omitted).

71  In our respectful view, nothing said in Pham precluded reliance on the Director’s table.  As the Director submitted on the appeal, the sentencing information was presented not in the form of ‘numerical tables, bar charts [or] graphs’ but as a summary of intermediate appellate court decisions on sentencing for importation of (or the attempt to import and possess) a commercial quantity of a border controlled drug.  Consistently with what this Court said in Thomas,[78] the table provided ‘sufficient information about the features of each case’ to enable useful comparisons to be drawn.  Information in this form was essential to assist the sentencing judge in ‘the search for consistency’.[79]

[78](2016) 315 FLR 31, 91 [180].

[79]Pham (2015) 256 CLR 550, 557–8 [24].

72  Turning to the cases relied on by the Director, the sentence on charge 1 can be compared to those imposed by this Court in Thomas.[80] In that case, one offender (Thomas) had pleaded guilty to attempting to possess a commercial quantity of a border controlled drug (a little over 3.6 kilograms of pure methamphetamine, or 4.8 times CQ).  His role was found to be ‘above that of a courier as he was at the lower end of the distribution chain’.[81]  This Court resentenced the offender to imprisonment for nine years with a non-parole period of six years and three months. 

[80](2016) 315 FLR 31.

[81]Ibid 88 [170].

73  The second offender (Wu) had pleaded guilty to importing a commercial quantity of a border controlled drug, namely 3.965 kilograms of methamphetamine (or 5.3 times CQ).  His role was to facilitate the arrival or delivery of two imported consignments over a 2–3 week period.  His role ‘had considerable value to the overall operation’.[82]  He was resentenced to 10 years and six months’ imprisonment with a non-parole period of seven years and six months.

[82]Ibid 99 [220].

74  In relation to charge 1, the Director also relied on the recent decision of the Queensland Court of Appeal in Banker.[83]  In that case, the offender imported 4.1 kilograms of pure methylamphetamine (5.5 CQ).  Unlike Brown, he was simply a courier, bringing the drugs into Australia in his suitcase.[84]  Like Brown, he was convicted after a trial and — also like Brown — he had no prior convictions.  The Court of Appeal dismissed his appeal against a sentence of 12 years’ imprisonment with a non-parole period of eight years.  The sentence was described as stern but ‘not unreasonable or plainly unjust’.

[83][2016] QCA 74.

[84]Ibid [53].

75  The Director’s submission was that the sentences imposed on Thomas and Wu respectively — each of whom had pleaded guilty — showed that the sentence of seven years on charge 1 was manifestly inadequate for an offender like Brown who pleaded not guilty.  The sentence upheld in Banker provided helpful guidance as to the applicable sentencing range in such a case.

76  The sentence on charge 1 can also usefully be compared with two further cases discussed in Thomas,[85] each of which involved a plea of guilty.  In Ng v The Queen,[86] the offender pleaded guilty to importing 2,445 grams of heroin (1.63 times CQ).  He was characterised by the sentencing judge as an ‘importer’ but not a ‘mastermind’.  He was sentenced to 11 years and three months’ imprisonment, with a non-parole period of seven years and three months.  His appeal ground of manifest excess was dismissed.

[85](2016) 315 FLR 31, 107 [260], 108 [265].

[86][2010] NSWCCA 232.

77  In Webber v The Queen,[87] the offender pleaded guilty to importing a commercial quantity of cocaine.  The cocaine had a pure weight of 2,219.3 grams, which is just over a commercial quantity.  He was sentenced to 11 years’ imprisonment with a non-parole period of seven years.  His appeal was dismissed.  Fullerton J (with whom Hoeben CJ at CL and Adamson J agreed) doubted that his role should be described as at the ‘lower end’ of criminality for importations of a commercial quantity.  He was able to converse with his principals, arrange for delivery and collection of the drugs and respond immediately to the strategy that the police were deploying.

[87][2014] NSWCCA 111.

78  In relation to the sentence on charge 2, the Director referred first to R v Yuan,[88] where the pure weight of the methamphetamine imported was 54.961 kilograms (more than 70 times CQ).  Convicted after a trial, the offender was sentenced to 10 years’ imprisonment with a non-parole period of six years.  The New South Wales Court of Criminal Appeal held that the sentence was manifestly inadequate and resentenced the offender to 15 years’ imprisonment with a non-parole period of 10 years.  The Court held that the offender’s role was ‘pivotal’.  He was the ‘supervisor of what occurred at the Australian end’.  His involvement had extended over a lengthy period; he had obviously occupied a position of trust ‘within the criminal group’; he was motivated by greed;  and he had shown no remorse.[89]

[88](2016) 252 A Crim R 422.

[89]Ibid 435 [57]–[58].

79  In Director of Public Prosecutions (Cth) v Peng,[90] the offender pleaded guilty to one charge of CQ importation (methamphetamine).  The total quantity of pure methamphetamine was 23,154.2 grams (or 31 times CQ).  The offender was sentenced to 11 years’ imprisonment with a non-parole period of seven years and six months.  This Court upheld a Director’s appeal on the ground of manifest inadequacy, and resentenced the offender to 13 years’ imprisonment with a non-parole period of 10 years.  The offender had been responsible for organising the importation of the drugs.  He had played ‘a critical and extensive role’.[91]  As the Director pointed out, the offender’s role was thus comparable to Brown’s role in the second importation.  On the other hand, the quantity imported in Peng was only half the size of the second importation. 

[90][2014] VSCA 128.

[91]Ibid [39].

80  In McCraw v The Queen,[92] the offender was convicted after a trial of conspiring to import not less than CQ of MDMA (commonly known as ‘ecstasy’).  The amount was approximately 60 times CQ.  The offender was a waterside worker who assisted in the reception of the drugs into Australia.  The sentencing judge described his role as ‘essential and crucial’.  He had supervised the unloading of the drugs from the ship and their transport to their first Australian destination.  He had no prior convictions.  He was sentenced to imprisonment for 17 years, with a non-parole period of 11 years and two months.  His appeal on the grounds of parity was dismissed.  He disavowed any complaint of manifest excess.  The Court said that he had done so ’correctly’. 

[92][2011] NSWCCA 162.

81  The submission for the Director noted that the importation in McCraw involved the same quantity as was the subject of charge 2 in the present case (60 CQ).  It followed, counsel argued, that the sentencing range for importation on this scale — for an offender who pleaded not guilty — was ‘in the high teens’.  Moreover, the Director submitted, the offender in McCraw had performed a less significant role than did Brown in the second importation.  We accept that submission.

82  In Saab v The Queen,[93] this Court dismissed an appeal against sentence by an offender who imported 14.6 kg of cocaine (7.3 times CQ).  The appellant acted as the ‘Australian link’ to the persons overseas who had arranged the importation.  He oversaw the collection and retrieval of the drugs.  He was found to be ‘the principal organiser’ of the scheme, although he may not have been ‘at the very apex’.[94]  He had pleaded guilty at the earliest practical opportunity.  The sentencing judge found that his plea was ‘accompanied by genuine remorse’.[95]  He was sentenced to 14 years’ imprisonment with a non-parole period of 10 years.

[93][2012] VSCA 165.

[94]Ibid [26].

[95]Ibid [30].

83  In Nguyen & Phommalysack,[96] the first applicant had pleaded guilty to one count of attempted importation, and one count of attempted possession, of the drugs in question.  She was found to have been ‘an integral facilitator of the importation’.  She offended not out of greed but because of indebtedness.  The quantity of drugs amounted to approximately 56 times CQ.  She was sentenced to 10 years’ imprisonment on the importation count, and seven years on the possession count. The total effective sentence was 12 years’ imprisonment, and a non-parole period of eight years was fixed.  The sentence was reduced because of the offender’s co-operation with the authorities.

[96](2011) 31 VR 673.

84  In dismissing her appeal against sentence on the ground of manifest excess, Maxwell P said:

The sentence imposed on [the offender] was well within the range reasonably open to the sentencing judge, full weight being given to her very significant cooperation and to the risks associated with it. Though not a principal, [she] played the key role in the critical phase of the enterprise - ensuring that the container was safely landed, delivered and unpacked. She was, as the judge said, ‘an integral facilitator of the importation’.[97]

Redlich JA described the sentence as ‘lenient’.[98]  He said:

The sentences fixed are, in my opinion, not only within the range of sentences that were reasonably open but fall toward the lower end of that range.[99] 

[97]Ibid 691 [69].

[98]Ibid 697 [94].

[99]Ibid 699 [104].

Reduced moral culpability

85  We reject Brown’s submission that the sentencing judge failed to take into account the effect of threats on his moral culpability.  Put simply, the judge was not asked to make any such finding. 

86  As noted earlier, Brown gave evidence at his trial that he acted as he did as a result of threats being made to the welfare of his partner in Mexico.  His written submissions did not suggest that his moral culpability was reduced by reason of those threats but, in oral submissions, his counsel said:

In making a plea like this after a trial, I can put matters of logic but I can’t put instructions because Mr Brown is adamant that his will was overborne.  The jury verdict of course doesn’t mean that he wasn’t threatened.  The jury could well believe that he had a threat of some kind but that his reactions to that threat were inappropriate.  As I’m saying, the verdict of not guilty is not as clear in what it means.  What it means is they either believe that he was involved as a paid hand as these WhatsApp directions show, or … that maybe he was threatened but that he should have reacted in a different way and any person in his situation would have reacted in a way contrary to the way he reacted.  He should have gone to the authorities, he should have distanced himself and so on.

87  In his sentencing remarks, the sentencing judge said:

I am to sentence you on the basis that you were not acting under duress at the time that you committed the offences in question.

…

Your discussions concerning the importation of the drugs and what was to happen to them in Australia were almost entirely with Ricardo Vacca. It appears that he, in turn, was in communication with others, probably in Mexico. However, I do not consider that your communications with Ricardo Vacca took the form of orders from him. Rather, they reflect that Ricardo was in contact with others and that, from time to time, he passed relevant information on to you regarding the timing of the arrival of goods, how you were to contact various people including McAndrew and keeping you abreast of sale arrangements which changed from time to time. In view of the jury verdicts, I must sentence you on the basis that you were a willing participant in these importations.[100]

[100]Sentencing remarks [42], [57] (emphasis added).

88  In R v Olbrich,[101]  Gleeson CJ, Gaudron, Hayne and Callinan JJ said:

In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a fifty-eight year old first offender who pleaded guilty to importing more than 1.1 kg of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation ‘principal’ could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was ‘a courier’. The respondent bore the burden of proving this fact. The judge was not persuaded of it.

As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey — that a sentencing judge

‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’[102]

[101](1999) 199 CLR 270.

[102]Ibid 281 [26]–[27] (citation omitted) (emphasis in original).

89  In the present case, as the judge correctly noted, the jury rejected the defence of duress.  In his sentencing remarks, the judge said that he proposed to sentence Brown on the basis that he was a ‘willing participant’ in the importations.  Moreover, the judge heard Brown give evidence over his two trials.  If he had considered that threats had had any relevant impact, he could have said so.  His Honour’s statement about Brown’s ‘willing’ participation is best understood as his having discounted the significance of the evidence about threats when it came to determining Brown’s moral culpability.

Conclusion

90  In our opinion, the sentence imposed was manifestly inadequate.  Parliament has signalled, by fixing a maximum of life imprisonment, that this offence is of the utmost seriousness.  Brown’s offending was very serious indeed.  It involved the importation of dangerous drugs in huge quantities — totalling almost 65 times the commercial quantity threshold.  Brown was a willing participant who had plenty of time to consider the gravity of his actions.

91  As counsel for the Director pointed out, he was a party to the agreement which resulted in the first importation.  And it was the success of the first which prompted the much-larger second importation.  Brown’s considered decision to be involved again, on a vastly greater scale, makes the second importation especially egregious, beyond the mere increase in quantity.

92  We reject Brown’s submission that he was unaware of the quantity the subject of the second importation.  As counsel for the Director correctly pointed out, Brown was well aware of the scale of the importation when he received the 102 packages.  He then proceeded to perform his role by secreting the drugs.  In short, he had knowledge of the quantity at a time when he was actively engaged in the importation.

93  Brown was not motivated by addiction or financial distress.  He seems to have been motivated solely by greed.  He played a very important role at the Australian end of the importations.  He is not entitled to any reduction in his sentence that might have been occasioned by a plea of guilty or co-operation with the authorities.

94  It is notorious that drug syndicates employ persons without criminal records to perform executive functions after drugs are imported.  We accept the Director’s submission that Brown’s sentence does not reflect the gravity of his offending or the need to deter others from pursuing the substantial profits which drug importation can realise.

Resentence

95  We accept the Director’s submission that the residual discretion should not be exercised in favour of Brown.  None of the matters relied on justify any other conclusion.  Brown should be resentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Importing a commercial quantity of a border controlled drug	Life imprisonment and/or 7,500 penalty units	11 years	4 years
2	Importing a commercial quantity of a border controlled drug	Life imprisonment and/or 7,500 penalty units	16 years	Base
Total Effective Sentence:		20 years
Non-Parole Period:		15 years

96 We will ask the parties to agree on a form of order that complies with s 19 of the Crimes Act 1914 (Cth).

Schedule of comparative cases – R v Jared Brown

Court of Appeal decisions: import/attempt possess commercial quantity of a border controlled drug

The Queen (Cth) v Yuan [2015] NSWCCA 198			FACTS/FACTORS	SENTENCE
NAME	Ziyi Yuan		Importation of five sofas within which 54.961kg of pure methamphetamine was secreted. Yuan was a furniture importer. He rented a storage facility, liaised with overseas parties and arranged for delivery of the shipment with the freight forwarder. Upon delivery, he assisted with unloading the consignment and separating out the five sofas, before providing them to co-offender Doan. Yuan was 29 years old at the time of the offence and was married with one step-daughter. He had migrated to Australia from Hong Kong and had no prior convictions. Offending was objectively serious and there was nothing in the offender’s case which mitigated the seriousness of the offending in any real way [55]-[57]. It was found the offender was motivated by financial gain and had not shown any remorse. Offender’s role was pivotal and that of a ‘supervisor of what occurred at the Australian end’, with his involvement extending over a significant period of time [58].	Yuan was initially sentenced to 10 years imprisonment with a NPP of 6 years. Chief Justice Hoeben, with Justice Davies agreeing, upheld the Crown’s appeal that the sentence imposed was manifestly inadequate. Yuan was resentenced to 15 years imprisonment with a NPP of 10 years
COURT	NSW Court of Criminal Appeal
DATE	31 July 2015
OFFENCE(S)	s307.1 Criminal Code (Cth) (import CQ)
PLEA	Not guilty
DRUG/ AMOUNT	Methamphetamine – 54.961kg (73.2 x CQ)
ANTECEDENTS	None
DPP (Cth) v Peng [2014] VSCA 128			FACTS/FACTORS	SENTENCE
NAME	Po Lung Peng		Importation of three crates containing 23.154kg of methamphetamine. Crates were addressed to Peng, a Taiwanese national who had arrived in Australia on 22 September 2012, registered a mobile phone and arranged rental accommodation in Reservoir. Offender had enquired about the consignment with the courier company and subsequently accepted the crates during a controlled delivery conducted by the AFP.  Peng then unpacked the consignments and made arrangements for delivery to co-offender Taiyuan Zheng a few days later. Peng admitted he had been sent the wooden crates from China and they contained crystal solids which he had been asked to give to someone. Peng was 49 years of age at time of the offence. His family including a son resided in Taiwan. Was found to have shown some remorse.	Peng was initially sentenced to a term of 11 years imprisonment, with a NPP of 7 years and 6 months. The CA upheld the Crown’s appeal that matters of delay and uncertainty about deportation were wrongly taken into account on sentence. The CA also found the sentence was manifestly inadequate given the critical and extensive role the offender played. The offender was resentenced to 13 years imprisonment with a non-parole period of 10 years.
COURT	Victorian Court of Appeal
DATE OF DECISION	20 June 2014
OFFENCE(S)	s307.1 Criminal Code (Cth) (import CQ)
PLEA	Guilty. Plea at earlier opportunity.
DRUG/ AMOUNT	Methamphetamine - 23.154kg (30.8 x CQ)
ANTECEDENTS	None
Luong & Nguyen v DPP (2013) 279 FLR 453			FACTS/FACTORS	SENTENCE
NAME	Hung Van Luong		Importation of methamphetamine, MDMA and cocaine concealed in foot spas. Luong was involved in importation with several co-offenders. He picked up co-offender Manh who arrived from Canada to assist in the importation and provided him with money and a phone. He visited the factory where the importation was to be taken, covered the windows with plastic and purchased tools to unpack the drugs. He also paid container fees, contacted the suspected Sydney drug dealers and attended with co-offenders to pay the customs broker for clearance of the shipment. His role was found to be equivalent to that of co-offender Phuong (see Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; Thi Kim Hung Nguyen v The Queen [2012] VSCA 119). CA held he ‘had a not insignificant role in the organisation, facilitation and commission of very serious crimes’. Luong was 53 years of age. He arrived in Australia in 1981 from Vietnam after spending some time in refugee camp. He was married, had two children with disabilities and was their full time carer prior to arrest. Found to have low-average intellectual ability and was characterised as a slow learner.	Luong was sentenced  in the County Court as follows : Count one: 10 years Count two: 10 years Count three: 10 years Total effective sentence was 15 years imprisonment with a NPP of 11 years. Leave to appeal against conviction was refused. Appeal on grounds including that the sentence was manifestly excessive was dismissed
COURT	Victorian Court of Appeal
DATE OF DECISION	24 October 2013
OFFENCE(S)	3 x s307.5 and 11.1 Criminal Code ((attempt possess cocaine; methamphetamine; MDMA)
PLEA	Not guilty
DRUG AND AMOUNT	Methylamphetamine 21.8kg (29 x CQ) MDMA – 6.3kg (12.6 x CQ) Cocaine - 29.1kg  (14.5 x CQ)
ANTECEDENTS	None
Saab v The Queen [2012] VSCA 165			FACTS/FACTORS	SENTENCE
NAME		David Saab	Organised importation of cocaine concealed in a beam four point spreader from Canada. The offender arranged for two co-accused to organise the collection and dismantling of the spreader. Found to be a principal organiser of the scheme but not at the very apex [26]. 37 years old when offence committed. Born in South Korea. Dysfunctional childhood due to mother’s nomadic existence. Professional poker player. History of depression, psychologist report indicated ‘pervasive personality dysfunction’. Found to have shown genuine remorse. Found he was to make about $110,000 from the import.	The offender was sentenced to total effective sentence of 14 years imprisonment with a non parole period of 10 years. But for his plea, the sentence would have been 15 years with a NPP of 11 years. Saab appealed this sentence on the basis that insufficient weight was given to his guilty plea and error in parity.  The appeal was dismissed.
COURT		Victorian Court of Appeal
DATE		16 August 2012
OFFENCE(S)		s307.1 Criminal Code (Cth) (import CQ)
PLEA		Guilty
DRUG AND AMOUNT		Cocaine  – 14.6 kg (7.3 x CQ)
ANTECEDENTS		None
Nguyen v The Queen [2012] VSCA 119 FACTS/FACTORS				SENTENCE
NAME		Thi Kim Phung Nguyen	Importation of methamphetamine, MDMA and cocaine concealed in foot spas. Related to Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32 and Hung Van Luong v DPP [2013] VSCA 296 Nguyen recruited her niece (Phuong Nguyen) to assist in the importation, arranged for payment of expenses associated with the import, arranged the lease of the factory to which the consignment was delivered and co-ordinated/organised the arrangements for unpacking the container and on selling the drugs. Found to have vital role and was a key facilitator. Offender was aged 39 at the time of sentence and had migrated to Australia from Vietnam at age 25. She had 3 children and had become involved in the offending after losing her business and house as a result of loan scheme. She was promised money, a house and car for her participation.	The offender was sentenced in the District Court to total effective sentence of 15 years imprisonment with a non-parole period of 11 years and 6 months. If not for plea, sentence would have been 19 yrs/15 yrs NPP. If not for assistance would have been 17 yrs/14 yr NPP. Nguyen appealed this sentence on the basis that insufficient weight was given to her voluntary return to Australia and there was an error in parity. Appeal was dismissed.
COURT		Victorian Court of Appeal
DATE		5 June 2012
OFFENCE(S)		s307.1 Criminal Code (Cth) (import CQ) S307.5 Criminal Code (Cth) (attempt to possess CQ)
PLEA		Guilty
DRUG AND AMOUNT		Methamphetamine – 21.8kg  (29 x CQ) MDMA – 6.3kg (12.6 x CQ) Cocaine - 29.1kg  (14.5 x CQ)
ANTECEDENTS		None
Pham v The Queen;  Tang v The Queen  [2012] VSCA 101			FACTS/FACTORS	SENTENCE
NAME	Son Anh Pham Van Quyen Tang		A shipment of foot spas and pedicure chairs arrived in Melbourne from Canada concealing cocaine, methamphetamine and MDMA (ecstasy). Tang, a Canadian, was present when the drugs departed Canada and gave evidence his role was to confirm the same quantity arrived in Australia. Pham acted as a point of liaison between the importers of the drugs and the freight forwarding company, facilitating delivery of the container to the warehouse and unpacking the contents. The full nature and extent of the enterprise and the offender’s conduct was unknown to the Court. There were limited findings in respect to the applicant’s positions and roles within the criminal enterprise. The Court focused on the manner in which each applicant facilitated the commission of the offence. The applicants played a material role in the movement of drugs after their arrival into Australia	Both offenders were sentenced in the County Court to 15 years imprisonment on each count, with a total effective sentence of 19 years imprisonment with a non-parole period of 14 years. While Tang was found to be more involved than Pham, as a result of his early guilty plea and sentencing discount, he was brought “back to parity with Pham”. Appeals by both offenders, on the basis that their sentences were manifestly excessive and on other grounds, were dismissed.
COURT	Victorian Court of Appeal
DATE OF DECISION	25 May 2012
OFFENCE(S)	3 x 307.1(1) Criminal Code import CQ) 3 x 307.5(1) Criminal Code (attempt to possess CQ)
PLEA	Tang – Guilty plea Pham – Not guilty
DRUG AND AMOUNT	Cocaine - 71.564 kg (35.7 x CQ) Methamphetamine – 29.285 kg (39 x CQ) Ecstasy – 9.757 kg (19 x CQ)
ANTECEDENTS	None
Dao v The Queen [2011] NSWCCA 183			FACTS/FACTORS	SENTENCE
NAME		Viet Cuong Dao	A shipment of candles imported from Vietnam was found to contain methamphetamine. After a controlled delivery, co-offender Nguyen collected the consignment under an assumed name, loaded it into a van (belonging to co-offender Ha) and drove to another location. Dao drove Ha to meet with Nguyen. Nguyen handed the van back over to Ha, who then drove it to his premises, with Dao following in the other vehicle. Both Dao and Ha entered the premises and sounds consistent with the consignment being unpacked were heard. The offender pleaded guilty at the earliest opportunity whereas co-accused were sentenced after trial. Offender had two previous convictions for drug supply and had served sentences of full time imprisonment. The offender also had a long standing drug addiction and therefore HH was guarded as to his prospects of rehabilitation.	Offender sentenced in the District Court to 10 years imprisonment with a non-parole period of 6 years. Offender appealed to the CCA based on basis of parity with the sentences of co-offenders, who were  sentenced in the District Court upon a guilty plea as follows: ·    Manh Hung Ha: 12 years and 6 months with a non-parole period of 7 years and 8 months ·    Duc Phong Nguyen: 12 years with a non-parole period of 7 years and 4 months The appeal was dismissed.
COURT		NSW Court of Criminal Appeal
DATE OF DECISION		17 August 2011
OFFENCE(S)		1 x s307.5(1) and 11.1, Criminal Code (Cth) (attempt possess CQ)
PLEA		Guilty
DRUG AND AMOUNT		Methamphetamine – 22.4kg (29.8 x CQ)
ANTECEDENTS		Yes - two offences of supplying a prohibited drug in 2000 and 2005
McCraw v The Queen [2011] NSWCCA 162			FACTS/FACTORS	SENTENCE
NAME		Terrence John McCraw	A ship from Belgium with 30.82 kilograms of pure MDMA concealed inside was placed in the custody of co-offender Dalibor PASINOVIC who was working on board the ship. McCraw was employed by Patrick Stevedoring as a waterside worker and team leader at the container crew terminal which enabled him to facilitate the safe unloading of the drugs when the ship arrived. Other employees of Patrick’s were also involved. Held that the accused and Mr PASINOVIC played essential and crucial roles. The offender stated that he believed that he was dealing with X-rated videos rather than drugs. 58 years of age at the time of the offence, employed on waterfront since leaving school at 15. Married 37 years, elderly and disabled mother, impact on family not “exceptional”. Motivated by financial gain.	Offender sentenced to a total effective sentence of 17 years imprisonment with a NPP of 11 years and 2 months. The offender appealed to the CCA against severity of sentence arguing a disparity between his sentence and that imposed against his co-offenders (Dalibor PASINOVIC and James LATTOUF). The appeal was dismissed.
COURT		NSW Court of Criminal Appeal
DATE OF DECISION		22 July 2011
OFFENCE(S)		1 x s307.1(1) and 11.5(1) Criminal Code (Cth) (Conspiracy to import CQ)
PLEA		Not guilty
DRUG AND AMOUNT		MDMA – 30.822 kg (61.6 x CQ)
ANTECEDENTS		Yes
Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32			FACTS/FACTORS	SENTENCE
NAME		Phuong Bich Nguyen Phousadeth Phommalysack	Importation of methamphetamine, MDMA and cocaine concealed in foot spas. Related to matters of Thi Kim Hung Nguyen v The Queen [2012] VSCA 119 and Hung Van Luong v DPP [2013] VSCA 296 Phuong Nguyen Phuong Nguyen arranged the lease for factory for the delivery of the importation, liaised with customs brokers, liaised with potential purchasers and eventually signed for delivery of the container containing the foot spas. Was held to be an integral facilitator due to her direct involvement over a considerable period. She became involved due to debt owed to her Auntie Phung. Was 34 at the time of the offence, had a 13 year old son and no prior convictions. Found to have good prospects of rehabilitation. She had entered into a s21E undertaking to give evidence at trial of co-offenders and assistance was of the highest order. Phommalysack He was tasked with collecting the drugs for the purchaser and delivering them to Sydney. He was to be paid $50,000. Identified the drugs as fake to other participants. He was born in Laos and 25 at the time of sentence. He had a history of drug use and a gambling habit.	Phuong Nguyen Count One: 10 years imprisonment Count Two: 7 years imprisonment Total effective sentence of 12 years imprisonment with a non-parole period of 8 years Appeal on grounds of manifest excess, double punishment and failure to give adequate discount for assistance was dismissed. Phommalysack 12 years imprisonment with a non-parole period of 9 years. Appeal on grounds that sentencing judge wrongly referred to an increased prevalence of drug offences, viewed the offender’s addiction as an aggravating factor and exercised two tier sentencing was dismissed.
COURT		Victorian Court of Appeal
DATE		16 February 2011
OFFENCE(S)		Nguyen: 1 x 307.1 Criminal Code (import CQ) 1 x 307.5 Criminal Code (attempt possess CQ Phommalysack: 1 x 307.5 Criminal Code (attempt possess CQ)
PLEA		Nguyen – Guilty at an early opportunity Phommalysack – Guilty at earliest opportunity
DRUG AND AMOUNT		Methamphetamine – 21.8kg  (29 x CQ) MDMA – 6.3kg (12.6 x CQ) Cocaine - 29.1kg  (14.5 x CQ)
ANTECEDENTS		Nguyen – None Phommalysack – Armed Robbery when 15, no drug priors
Chan, Lo & Nguyen v The Queen [2010] NSWCCA 153			FACTS/FACTORS	SENTENCE
NAME		Kin Fai CHAN Chung Fung LO Thanh Phan NGUYEN	Importation of three suitcases containing 10.01kg of pure methamphetamine. Chan Chan was found to be middle man who oversaw the operation. He arrived in Australia in advance of the importation, procured a number of phones, including one in a false name, was aware of the arrangements for the delivery of suitcases and remained insulated from risk until notified the importation had been successful. Chan was 35 at the time of the offending, was born in Hong Kong but migrated to Canada. Became involved in the offending as a result of financial difficulties. He entered a plea of guilty at the earliest opportunity, provided some assistance to authorities, had no prior convictions and had demonstrated exemplary conduct in gaol. Received a 30% discount on sentence. Nguyen Nguyen’s role found to be more significant than that of Lo as he was involved for longer and did more to further the enterprise. Nguyen was 35 at the time of the offence and migrated to Australia in 1994. He had no prior convictions although some irrelevant matters where a conviction was not recorded. He told Probation and Parole he had drinking and gambling problems. He was the primary carer for his parents who had health problems. Received a 10% discount on sentence. Lo The Crown conceded that Lo was only involved on the day of his arrest and was found to have a role lower than a courier.  Lo was 27 at the time of the offence. He gave evidence that he worked as a bartender in Hong Kong, had failed to support his parents and his mother was suffering from breast cancer. He had no prior convictions. Received a 25% discount on sentence.	Each accused was sentenced in the District Court as follows: Chan: 12 years and 6 months imprisonment, with a non-parole period of 7 years and 6 months Nguyen: 10 years imprisonment, with a non-parole period of 6 years Lo: 7 years and 6 months imprisonment, with a non-parole period 4 years and 6 months Each offender appealed the sentence imposed on the basis that it was manifestly excessive.  This appeal ground was rejected for each offender. Chan also appealed on the basis that his assistance to authorities was given insufficient weight. This appeal ground was rejected.
COURT		NSW Court of Criminal Appeal
DATE		22 October 2010
OFFENCE(S)		Chan and Lo: s307.5(1) Criminal Code (Cth) (attempt possess CQ) Nguyen: s307.1 Criminal Code (Cth) (aid abet import CQ)
PLEA		Chan and Lo: Guilty at the earliest opportunity Nguyen: Guilty on the first day of the trial
DRUG /AMOUNT		Methamphetamine – 10.01kg (13.3 x CQ)
ANTECEDENTS		None
R v Nguyen; R v Pham (2010) 205 A Crim R 106			FACTS/FACTORS	SENTENCE
NAME		Hai Van Nguyen Phuong Thu Thi Pham	Importation of foot spas secreting cocaine and methamphetamine from Canada Nguyen Nguyen set up a business, registered two business names and leased a commercial warehouse in Victoria. Nguyen communicated with freight forwarder using a fake email address to arrange delivery, paid relevant fees and rented a storage space in Sydney. He was present to take delivery, deconstructed the foot spas to remove the packages of drugs and attended with Pham to hand over the packages to the purchaser. Nguyen was born in Vietnam but migrated to Australia in 1982. He had four children, was employed and had no priors. He told Probation and Parole he became involved to pay off a gambling debt. Reasonable prospects of rehabilitation were found. Pham Pham (Nguyen’s cousin) travelled to Australia from Canada, communicated with parties overseas and paid fees to the freight forwarder. She assisted in removing the drugs from the foot spas and then delivered them to the purchaser. Pham was born in Vietnam and migrated to Canada in 1993. She was married and employed as a cook in a karaoke bar. She had no prior convictions.	Nguyen Nguyen sentenced in the District Court to a total effective head sentence of 14 years and 6 months, with a NPP of 9 years and 6 months. The Crown appealed on the basis the sentence was manifestly inadequate. Nguyen was resentenced to total effective sentence of 18 years imprisonment with a non-parole period of 12 years Pham Sentenced in the District Court to 11 years imprisonment with a non-parole period of seven years. The Crown appealed on the basis the sentence was manifestly inadequate. Pham was resentenced to 15 years imprisonment with a non-parole period of 10 years.
COURT		NSW Court of Criminal Appeal
DATE		22 October 2010
OFFENCE(S)		Nguyen: 2 x 307.1(1) Criminal Code ( import CQ) 2 x 307.5(1) Criminal Code (attempt to possess CQ) Pham 1 x 307.5(1) Criminal Code (cocaine only)
PLEA		Nguyen – G prior to trial (15%) Pham – G after trial was to have commenced (10%)
DRUG / AMOUNT		Cocaine - 27.153 kg (13 x CQ) Methamphetamine - 13.04 kg (17 x CQ)
ANTECEDENTS		None
Zhang v The Queen [2010] NSWCCA 105			FACTS/FACTORS	SENTENCE
NAME		Wen Zhao ZHANG	8.218 kgs of pure methamphetamine was imported into Australia secreted in boxes and transported into Sydney from Brisbane. The accused met with another man, co-accused Shang Wen FANG in order to take possession of the boxes containing the drugs. The accused was arrested by police before he could take possession of the boxes. Zhang had no criminal history and pleaded guilty at an early stage. Found to be significantly depressed and had low IQ. HH was not satisfied that the Zhang was remorseful as it was hearsay statements in reports and from his wife. Zhang’s knowledge of the mechanisms by which the drugs were to be distributed went beyond that of a mere courier and found to have a mid level role, similar to that of co-offender Fang.	Offender sentenced to a total effective sentence of 11 years imprisonment with a NPP of 7 years. The offender appealed to the CCA on the ground that his sentence was disparate to his co-offender. Leave to appeal granted however the appeal against sentence was dismissed. NB: co-accused Shang Wen Fang’s conviction was later quashed and he was found not guilty in subsequent trial.
COURT		NSW Court of Appeal
DATE OF DECISION		21 May 2010
OFFENCE(S)		1 x s307.5(1) and 11.1, Criminal Code (Cth) (attempt possess CQ)
PLEA		Guilty
DRUG AND AMOUNT		Methamphetamine 8.2 kg (10.96 x CQ)
ANTECEDENTS		None