Flower v The King; Mafiti v The King

[2024] NSWCCA 76

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Flower v R; Mafiti v R [2024] NSWCCA 76

Hearing dates:

22 February 2024

Date of orders:

17 May 2024

Decision date:

17 May 2024

Before:

Davies J at [1]
Hamill J at [2]
Sweeney J at [107]

Decision:

The orders in Mr Flower’s case are as follows:

(1) Application for leave to appeal granted.

(2) Appeal allowed.

(3) The sentences imposed in the District Court on 11 February 2022 are quashed and in lieu thereof, Damion Flower is sentenced:

(a) For the importation of a commercial quantity of a border-controlled drug (cocaine), to imprisonment for 21 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2040.

(b) For the proceeds of crime offence, to imprisonment for 4 years commencing on 22 May 2019 and expiring on 21 May 2023.

(c) There will be a single non-parole period of 13 years commencing on 22 May 2019 and expiring on 21 May 2032.

(d) Direct Mr Flower’s legal representatives to explain these sentences, and the practical implications of the total effective sentence and non-parole period to Mr Flower.

The orders in Mr Mafiti’s case are as follows:

(1) Application for leave to appeal granted.

(2) Appeal allowed.

(3) The sentences imposed in the District Court on 11 February 2022 are quashed and in lieu thereof, To’oto’o Mafiti is sentenced:

(a) For the importation of a commercial quantity of a border-controlled drug (cocaine), to imprisonment for 16 years commencing on 22 May 2019 and expiring on 21 May 2035.

(b) For the proceeds of crime offence, to imprisonment for 5 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2024.

(c) There will be a single non-parole period of 9 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2028.

(d) Direct Mr Mafiti’s legal representatives to explain these sentences, and the practical implications of the total effective sentence and non-parole period to Mr Mafiti.

Catchwords:

CRIMINAL LAW – sentencing – commercial drug importation – hardship to third parties – no requirement to establish exceptional hardship – gloss on plain language of Commonwealth sentencing statute – where sentencing Judge applied principles established at time of sentencing – where Court of Criminal Appeal subsequently held earlier authorities plainly wrong – ground of appeal established – applicants re-sentenced – whether applicant a “principal” – relevant considerations – not necessary to determine ground of appeal – applicant’s role substantial and possibly managerial

Legislation Cited:

Crimes Act 1914 (Cth), s 16A(2)

Cases Cited:

Hanh Thi Nguyen v R [2011] NSWCCA 92; (2011) 208 A Crim R 432

Heng v R [2019] NSWCCA 317

Jomaa v R [2022] NSWCCA 112

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Li v R [2021] NSWCCA 100

Parker v R [2020] NSWCCA 206

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

R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531

Tawfik v The Queen (2021) 64 VR 561; [2021] VSCA 289

Tenenboim v R [2024] NSWCCA 1

Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75

Turnbull v R [2019] NSWCCA 97

Category:

Principal judgment

Parties:

Damion Flower (Applicant)
To’oto’o Junior Mafiti (Applicant)
Rex (Respondent)
Commissioner of Police (Interested party)

Representation:

Counsel:
B Walker SC, A Djemal SC and T Woods (Applicant Flower)
K Ginges and R McMahon (Applicant Mafiti)
R Ranken and C Brain (Respondent)
D Jordan (Interested party)

Solicitors:
Fahmy Lawyers (Applicant Flower)
William O’Brien & Ross Hudson Solicitors (Applicant Mafiti)
Director of Public Prosecutions (Cth) (Respondent)
Crown Solicitor’s Office (Interested party)

File Number(s):

2019/00160639; 2019/00160641

Publication restriction:

The identity of Witness A has been suppressed pursuant to suppression orders made on 22 February 2024.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

11 and 14 February 2022

Before:

Huggett DCJ

File Number(s):

2019/00160639; 2019/00160641

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 11 February 2022 the applicants (Messrs Flower and Mafiti) were sentenced in the District Court on their pleas of guilty to one count of importation of a commercial quantity of cocaine and one count of dealing with proceeds of crime. There were substantial quantities of cocaine involved in twelve separate importations over about three years and each applicant received massive financial reward. Mr Flower was sentenced to concurrent sentences of 28 years imprisonment and 4 years imprisonment, with a single non-parole period of 17 years. Mr Mafiti was sentenced to concurrent sentences of 23 years imprisonment and 5 years and 6 months imprisonment, with a single non-parole period of 14 years.

Mr Flower sought leave to appeal against his sentence on three grounds:

1. The sentencing Judge’s assessment of the objective seriousness of count 1 miscarried.

2. The sentencing Judge erred in applying a wrong principle to consideration of the issue of family hardship.

3. The sentence for count 1 is manifestly excessive.

Mr Mafiti sought leave to appeal against his sentence on three grounds:

1. The applicant has a justifiable sense of grievance because of the disparity between his sentence and that imposed on his co-offender, Damion Flower.

2. The learned sentencing Judge erred in finding that there was little to nothing in the applicant’s subjective circumstances to reduce to any significant extent his moral culpability nor his criminality.

3. The sentencing judge applied a wrong principle with respect to hardship to family and failed to take into account hardship to family.

The Court, granting leave to appeal, upholding the appeal on the grounds asserting error in the approach to family hardship, and resentencing the applicants, held (per Hamill J, Davies and Sweeney JJ agreeing):

In respect of the family hardship grounds

(1) The sentencing Judge applied the law as it was understood at the time of sentencing. In doing so, a “gloss” was imported into the statutory provisions whereby the applicants were required to establish “exceptional hardship” to third party family members arising from the imposition of a lengthy custodial term: [9]-[12].

(2) Two months after the sentencing Judge delivered her judgment, this Court unanimously held that its earlier decisions were “plainly wrong” and that the law had taken a “wrong turn”. The respondent conceded that error was established and that the sentencing proceedings miscarried: [7], [12]-[13].

Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75 applied.

In resentencing the applicants

(3) It was unnecessary to determine the remaining grounds of appeal but, in re-sentencing, the Court was not satisfied that the evidence established that Mr Flower was a “principal” as that expression is generally understood: [41]-[42], [92].

Hanh Thi Nguyen v R [2011] NSWCCA 92; (2011) 208 A Crim R 432 applied.

(4) In exercising the sentencing discretion afresh, the Court adopted a similar approach to parity and proportionality to that taken by the sentencing Judge and generally adopted her Honour’s factual findings and approach to sentencing: [82]-[84], [87], [90].

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and Turnbull v R [2019] NSWCCA 97 applied.

Mr Flower was re-sentenced to concurrent sentences of 21 years and 6 months for the importation offence, and four years for the proceeds offence, with a single non-parole period of 13 years: [105].

Mr Mafiti was re-sentenced to concurrent sentences of 16 years for the importation offence, and 5 years and 6 months for the proceeds offence, with a single non-parole period of 9 years and 6 months: [106].

JUDGMENT

1. DAVIES J: I agree with Hamill J.

2. HAMILL J: On 11 February 2022, Damion Flower and To’oto’o Mafiti, [1] were sentenced in the District Court on their pleas of guilty to an offence relating to their involvement in an extremely grave importation (or series of importations) of a commercial quantity of cocaine and associated proceeds of crime offences. Each man now seeks leave to appeal against the sentence imposed.

   1. Mr Mafiti’s name has been spelt in accordance with the indictment. It is noted that his name is otherwise spelt To’Oto’o Mafiti in the affidavits of his family members.

3. Mr Flower received a 10% “utilitarian” reduction for his pleas of guilty to each offence and was sentenced to 28 years imprisonment for the importation offence and 4 years for the proceeds offence. The sentences commenced on the same date (22 May 2019) and are to be served wholly concurrently. The sentencing Judge imposed a single non-parole period of 17 years, commencing 22 May 2019 and expiring 21 May 2036.

4. By notice of appeal filed 26 October 2023, Mr Flower notified the following grounds of appeal:

(1) The sentencing Judge’s assessment of the objective seriousness of count 1 miscarried.

(2) The sentencing Judge erred in applying a wrong principle to consideration of the issue of family hardship.

(3) The sentence for count 1 is manifestly excessive.

5. Mr Mafiti received a 20% discount for his guilty plea to the importation offence and a 25% discount for his guilty plea to the proceeds offence. He was sentenced to 23 years for the importation offence and 5 years and 6 months for the proceeds offence. Those sentences each commenced on 22 May 2019 and a single non-parole period of 14 years was imposed. The non-parole period will expire on 21 May 2033. Mr Mafiti initially raised the following grounds of appeal:

(1) That the applicant has a justifiable sense of grievance because of the disparity between his sentence and that imposed on his co-offender, Damion Flower.

(2) The learned sentencing Judge erred in finding that there was little to nothing in the applicant’s subjective circumstances to reduce to any significant extent his moral culpability nor his criminality.

6. Mr Mafiti subsequently sought to add a third ground which was in substance the same as the second ground originally notified by Mr Flower:

(3) The sentencing judge applied a wrong principle with respect to hardship to family and failed to take into account hardship to family.

7. Based on this Court’s authority in Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75 (“Totaan”) – a judgment delivered two months after the primary Judge imposed sentence on the present applicants – the respondent conceded that the grounds asserting error in the approach to family hardship were established. That concession is correct and this Court must exercise the sentencing discretion afresh. It is unnecessary to determine the remaining grounds of appeal but the substance and evidentiary basis of the ground asserting error in the assessment of the objective gravity of Mr Flower’s offending (Ground 1), and the parity argument raised in Mr Mafiti’s case (Ground 1), will be subsumed within the re-sentencing exercise.

8. In the case of each applicant, a different and less severe sentence is warranted and should be imposed. Accordingly, the application for leave should be granted and the appeal must be allowed. These are my reasons for favouring those orders. I will first explain the error infecting the sentencing process, then set out briefly the facts of each case, and then turn to re-sentencing.

The error in the sentence proceedings

9. Section 16A(2) of the Crimes Act 1914 (Cth) provides a non-exhaustive list of matters that a sentencing judge is to take into account in sentencing an offender for a Commonwealth offence. Sub-paragraph (p) concerns:

(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

10. At the time the applicants were sentenced, the sentencing Judge was bound by New South Wales authority which imported into that seemingly straightforward provision a requirement that an offender establish that any hardship to their family was “exceptional”. Both offenders adduced evidence of hardship to their families and dependents that would be occasioned by a lengthy sentence of imprisonment. The evidence in Mr Flower’s case was more substantial and compelling. Counsel for Mr Mafiti at first instance conceded in written submissions that this hardship did “not [rise] sufficiently high to amount to exceptional circumstances”. No such concession was made by Ms Francis, who appeared for Mr Flower in the District Court. The sentencing Judge found:

“183. Insofar as there is evidence suggesting hardship to Flower’s family as a result of his incarceration, I do not consider such hardship to be sufficiently exceptional to warrant any particular mitigation in accordance with the authorities.”

11. Whether that finding was sustainable on the evidence was not debated on appeal. However, the legal basis for the finding reflected the law as it was understood at that time. No doubt because of the approach taken by counsel for Mr Mafiti, her Honour did not refer to the issue in dealing with that applicant’s personal case.

12. On the hearing of the appeal, both applicants relied on the observation at paragraph [183] of the sentencing judgment to demonstrate that the sentencing Judge acted on a wrong principle in relation to the issue of family hardship. At the risk of being repetitive, the sentencing Judge was applying the law as it was understood at the time of the sentencing proceedings and when her Honour delivered the judgment. However, two months after the applicants were sentenced, five members of this Court unanimously held in Totaan that previous authorities importing the “gloss” of “exceptional hardship” into s 16A(2)(p) were “plainly wrong”: Totaan at [77] (Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing); see also the reasoning at [78]-[89] which compelled the conclusion that the law had taken a “wrong turn”. The Chief Justice said at [93]:

“For all of these reasons, coupled with the fact that the court was met with a submission by the Crown inconsistent with Sinclair and Hinton, namely that hardship ‘does not need to be exceptional in order to be taken into account’, the gloss that has been placed on the interpretation of s 16A(2)(p) should be removed. That straightforward section should be applied according to its terms and, to the extent that decisions of this court and other intermediate appellate courts have taken a different approach, they should, in my opinion, no longer be followed in New South Wales. Accordingly, leave to appeal is granted and appeal ground 1(b) is upheld. The applicant’s sentences should be set aside.”

13. Based on the fundamental change in the law effected by the judgment in Totaan, it is clear that the sentencing proceedings in the present cases miscarried. Ground 2 in Mr Flower’s appeal and Ground 3 in Mr Mafiti’s appeal must be upheld.

The agreed facts against each applicant

14. Separate agreed statements of facts were tendered on sentence. The sentencing Judge noted that most of the facts were “common” to each offender but that there were some “important differences”. Some of the facts and some of the documentation involved confidential material which was excised in the versions for publication. The following brief summary of the facts does not delve into those aspects of the case.

15. The applicants were friends who worked together as baggage handlers for Qantas at the Sydney International Airport between the years 2000 and 2004. Mr Flower stopped working for Qantas in 2004, while Mr Mafiti continued to work as a baggage handler until his arrest on 22 May 2019.

16. Between 29 June 2016 and 22 May 2019 the applicants were involved in 12 separate importations of cocaine into Australia. On each occasion around 19kg of (pure) cocaine was placed in a duffle bag and transported as checked in baggage on a Qantas flight from South Africa to Sydney International Airport. It was calculated that a total of approximately 228kg of (pure) cocaine was imported.

17. The agreed facts for Mr Mafiti stated that his role:

“was to collect duffle bags containing cocaine from the Flight QF64 from South Africa, and to pass the bags onto FLOWER and others in the vicinity of the airport. In order to do this, [Mafiti] stayed at SIA after the end of rostered shifts and attended Flight QF64 when he was not tasked to do so.”

18. The agreed facts also stated that he participated in the importation “under the direction” of Mr Flower. However, the facts in Mr Flower’s case did not assert that he directed Mr Mafiti’s activities.

First importation

19. Between 26 June and 28 June 2016 Mr Flower sent messages to Mr Mafiti using what was described as a “covert” telephone. On 29 June 2016 Australian Border Force officers seized a sports bag containing cocaine that was on a Qantas flight. On 30 June Mr Flower again contacted Mr Mafiti using a covert ‘phone. While he was not rostered to work, Mr Mafiti entered the International Airport via the staff entry at 10.10am. He attended the airport intending to take custody of the bag but was unable to collect it because it had been seized by officers earlier that day. Mr Mafiti did not swipe his access card when later exiting the airport.

Second importation

20. On 17 February 2017 Mr Mafiti worked overtime until 8.00pm. Mr Flower contacted him several times using a covert ‘phone. At 7.17pm a Qantas flight arrived at the International Airport and Mr Mafiti collected the duffle bag containing cocaine and provided it to Mr Flower.

Third importation

21. On 25 October 2017 Mr Mafiti was approved to work overtime until 7.00pm. Mr Flower was in Melbourne and was in contact with Mr Mafiti through a covert telephone. That night Mr Flower flew from Melbourne to Sydney and stayed in the vicinity of the International Airport, in the area of Mascot or Arncliffe. The Qantas flight arrived at 8.55pm, and Mr Mafiti collected the duffle bag containing cocaine over two hours after the end of his shift. He departed the airport at 9.16pm through the staff exit.

Fourth importation

22. On 19 March 2018 Mr Mafiti was rostered to work at the airport. Mr Flower used a covert ‘phone to communicate with Mr Mafiti. A Qantas flight arrived at 3.14pm, Mr Mafiti collected the bag containing cocaine from the flight and left the airport through the staff exit at 3.42pm. He re-entered the airport at 3.51pm and left at 4.26pm. Around this time, Mr Flower was in the area of Mascot or Arncliffe.

Fifth importation

23. On 27 and 29 June 2018 Mr Flower sent coded messages to Mr Mafiti confirming the details of a flight on which drugs were being imported. On 29 June Mr Mafiti was approved to work until 3.30pm and the Qantas flight landed at 3.03pm. Mr Mafiti collected the duffle bag containing cocaine and left the airport through the staff exit at 3.35pm.

Sixth importation

24. On 3 July 2018 Mr Flower began using a different covert telephone. On 7 September Mr Mafiti was rostered to work at the airport. Mr Mafiti sent a text message to a Qantas resource allocator about the location of the Qantas flight, although he was not allocated to work on that flight. The flight arrived at 2.41pm and Mr Mafiti collected the duffle bag containing cocaine. At 3.07pm Mr Mafiti departed the airport through the staff exit. Mr Flower, using the new covert ‘phone, was in communication with Mr Mafiti between 6.36-8.54am and 3.12-3.45pm.

Seventh importation

25. On 22 January 2019 Mr Mafiti was approved to work overtime until 3.00pm. Mr Flower communicated with Mr Mafiti through the second covert ‘phone. At 3.19pm the Qantas flight arrived and a closed-circuit television (CCTV) camera captured Mr Mafiti leaving the airport at 3.55pm through the staff exit. He was carrying a large duffle bag containing cocaine.

Eighth importation

26. On 29 January 2019 Mr Mafiti was approved to work overtime until 3.00pm and, again, Mr Flower communicated with him using the second covert telephone. The Qantas flight arrived at 3.43pm. At 3.59pm CCTV footage showed Mr Mafiti leaving the airport carrying a large black duffle bag. Telephone call charge records established that Mr Mafiti and Mr Flower were both in the Moorebank and Chipping Norton area between 4.37pm and 4.49pm.

Ninth importation

27. On 12 February 2019 Mr Flower contacted Mr Mafiti several times while the latter was rostered to work at the airport. At 3.28pm a Qantas flight arrived and at 3.43pm Mr Mafiti departed the airport through the staff exit carrying a large black duffle bag containing cocaine. Call charge records showed that Mr Mafiti and Mr Flower were both in the Moorebank and Chipping Norton area between 4.32pm and 4.37pm.

Tenth importation

28. On 8 March 2019 Mr Flower met with a third co-accused Ashoor Youkhana and was in contact with Mr Mafiti. On 15 March, Mr Mafiti was rostered to work at the airport. At 9.46am Mr Mafiti, using his personal ‘phone, sent a text message to Mr Flower’s personal phone. Subsequently, between 9.58 and 11.08am and 3.16-3.23pm Mr Mafiti, using his personal ‘phone, and Mr Flower, using his second covert ‘phone, sent a series of text messages to each other. At 3.52pm the Qantas flight arrived. Mr Mafiti was captured on CCTV attending the flight on a Qantas “tug”, opening the cover of one of the baggage containers, taking possession of a duffle bag containing cocaine and placing it in the footwell of the Qantas tug.

29. Around 4.08pm to 4.13pm Mr Mafiti left the airport with the bag, sent two messages to Mr Flower, and waited near the Rydges Hotel. Between 3.35pm and 4.15pm Mr Flower met with Edward Hayson and they drove to meet Mr Mafiti at the hotel. Mr Mafiti placed the duffle bag in Mr Flower’s vehicle, and Mr Flower and Mr Hayson drove away from the airport. Shortly afterwards Mr Flower and Mr Mafiti sent a series of coded text messages to each other about the drugs using their personal phones. At 5.17pm an Australian Federal Police officer inspected Mr Flower’s vehicle but the duffle bag was not sighted.

Eleventh importation

30. On 18 March 2019 Mr Mafiti and Mr Flower exchanged a series of coded text messages on their personal telephones concerning when Mr Mafiti could collect the drugs. On 20 March Mr Flower spoke to an associate about Mr Mafiti being unable to collect the drugs for three weeks. Mr Flower also communicated with Mr Mafiti on the same day. On 12 April Mr Mafiti met with Mr Flower at his home. On 12 and 14 April 2019 Mr Flower met with Mr Youkhana and on the evening of 14 April he flew to the Gold Coast with his family.

31. On 15 April 2019 Mr Mafiti was rostered to work at the airport. Between 8.59am and 9.41am Mr Mafiti and Mr Flower, using his second covert ‘phone, exchanged coded messages identifying the container number on the flight which contained the drugs. The Qantas flight landed at 3.04pm. Mr Mafiti was captured on CCTV footage attending the aircraft on a “tug”, retrieving the duffle bag containing the cocaine from a specific container, removing the passenger sticker from the bag and placing it on the dash of the tug he had been driving. At 3.30pm Mr Mafiti left the airport through the staff exit with the bag. At 3.34pm he met with Mr Youkhana who had driven to the same Rydges Hotel where Mr Mafiti previously met Mr Flower. Mr Mafiti handed Mr Youkhana the bag. At 3.36pm Mr Mafiti sent a message to Mr Flower’s personal phone, that said “[d]one … on my way home brother”. Mr Youkhana was later arrested by Australian Federal Police officers who seized the duffle bag. The bag contained 19.04kg of (pure) cocaine.

32. On the morning of 16 April 2019 Mr Flower flew from the Gold Coast back to Sydney and arranged to meet an associate Tony Youkana. He attended the Rydges Hotel and flew back to the Gold Coast later that day. On 18 April Mr Flower and Mr Mafiti exchanged text messages using their personal mobile telephones.

Twelfth importation

33. On about 23 April 2019 Mr Flower acquired a third covert telephone and three weeks later, on 14 May, he met Mr Mafiti at Moorebank Shopping Centre and gave him another covert telephone.

34. On 22 May 2019 Mr Mafiti was approved to work overtime until 2.30pm. At 8.27am Mr Flower sent a coded message from his covert ‘phone to Mr Mafiti’s covert ‘phone about the flight on which the drugs were located. The Qantas flight arrived at 3.07pm and Mr Mafiti attended on a Qantas tug and took possession of a duffle bag containing cocaine. At 3.33pm he departed the airport with the bag.

Arrest and search warrants

35. A short time later Mr Mafiti was arrested. The duffle bag was found to have 19.365kg of (pure) cocaine, 3.3g of methamphetamine and a mobile telephone handset, all of which was seized by Australian Federal Police.

36. At 4.01pm Mr Flower left a voicemail message for Mr Mafiti. Between 4.25pm and 4.40pm Mr Flower and Mr Hayson were captured on CCTV footage together in Moorebank before getting in to Mr Flower’s vehicle. Later that day, Mr Flower was arrested at his home in Moorebank.

37. On 22 May search warrants were executed at Mr Mafiti’s home and a storage facility rented by him. Cash totalling $1,730,750 and foreign currency totalling $10,000 was located in his home and cash totalling $4,485,900 was located in the storage facility.

38. Search warrants were also executed on Mr Flower’s vehicle and residential address. A large black bag containing $119,800 cash was located in Mr Flower’s home. As of 22 May 2019, Mr Flower had an unexplained income of approximately $4 million dollars.

Mr Flower’s role and objective criminality

39. The facts demonstrated that Mr Flower played an important role in facilitating and co-ordinating the importation at the Australian end and that he did so for massive financial reward. Each individual importation involved an amount of drugs well in excess of the statutory commercial quantity. Charged as one offence, the twelve importations amounted to a very grave example of a drug offence carrying a maximum penalty of life imprisonment.

40. Mr Flower provided Mr Mafiti with information concerning the identity of the flights upon which the drugs were being imported and collected the drugs from Mr Mafiti before passing them on to the local distributors. He was in contact with several other offenders within the criminal network and his knowledge of the flights and dates of arrivals of the drugs showed he was operating at quite a high level within the putative hierarchy and was trusted with significant information critical to the importation of cocaine over a period of three years.

41. However, contrary to the factual finding of the sentencing Judge, the evidence did not establish Mr Flower to be a “principal” as that expression is usually understood. In Hanh Thi Nguyen v R [2011] NSWCCA 92 [4]; (2011) 208 A Crim R 432, Simpson J (as her Honour then was) said:

“‘Principal’ is an expression that is commonly used in sentencing in respect of drug offenders, but may not have a commonly accepted or applied meaning. In my opinion, the indicator of the role of an offender as ‘principal’ involves at least some of the following characteristics:

• contributing financially to the cost of setting up the operation;

• standing to share in the profit (as distinct from receiving payment);

• having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise);

• having some decision making role (which may not be different from the item above).

• This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.”

42. There was arguably some evidence of Mr Flower playing some form of management role but that evidence fell short of establishing that he was a principal.

43. However, the attachment of a label such as “principal” or “courier” to the role of an offender in a large-scale drug importation must not distract from an assessment of what an offender actually did: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19].

44. In terms of the scale of the enterprise, his individual role, the length of his participation in the criminal activity, and the total quantity of drugs imported, Mr Flower’s case represented a very serious example of an offence of this kind. The proceeds of crime offence, for which an entirely concurrent sentence was imposed, demonstrated the extent to which the applicant profited from his illegal and ongoing activities.

Mr Mafiti’s role and objective criminality

45. Mr Mafiti’s role was more prosaic and is demonstrated by the bare outline of facts of the twelve importations. His position as a baggage handler at the airport provided him with a particular ability to facilitate the offence and his role was an essential one. The proceeds of crime offence showed him to have been motivated by the ability to make extraordinarily large amounts of money by taking advantage of his position of employment.

46. Counsel’s description at the hearing of the appeal of Mr Mafiti as being a person “hopping” on and off the “criminal train” – as opposed to somebody who “stayed on the train” for three years – was unhelpful and apt to mislead. The blunt reality is that over that period of three years Mr Mafiti appeared to be ready, willing and able at any time to use his position to play an important role in the ongoing and large-scale importation of illegal drugs into Australia. Having said that, the facts in his case established that he was operating at a level lower than that occupied by Mr Flower and, as counsel submitted, his conduct was not particularly sophisticated. The disparate sentences imposed on the two men at first instance reflected these differences.

The personal circumstances of each offender

Mr Flower

47. Mr Flower’s subjective case was elicited through a report by Dr Eagle, a forensic psychiatrist, although the report received support in various medical reports and character references tendered in the District Court. The sentencing Judge appeared to accept the history provided to Dr Eagle and what follows is derived from the sentencing judgment.

48. Mr Flower was born in 1972 and grew up in Bronte. His mother was a nurse and his father a bookmaker. The latter was said to be an alcoholic and a gambler, and was violent towards Mr Flower as a teenager. Mr Flower said his paternal grandfather attempted to sexually assault him when he was a child and when he reported this to his father, he was beaten and “despised” for making the allegation.

49. Mr Flower attended private schools in the eastern suburbs of Sydney and was run over when he was 17 years old by a car driven by a pupil of a rival school. He suffered serious injuries and was hospitalised for a lengthy period. He was unable to complete the Higher School Certificate and lost a contract to play football. This caused further problems in his relationship with his father and they did not speak for five years. His parents separated shortly after that and more recent contact with his father has been “sporadic”. Mr Flower reported that his father caused problems and stress when he came back into his life. This included stealing a large sum of money from him, as a result of which he was charged with fraud. The last contact was in 2018 by which time Mr Flower’s father had developed a morphine addiction and threatened to take his own life.

50. Mr Flower was in a “serious relationship” for five years in his late twenties, but that relationship dissolved due to the applicant’s heavy alcohol consumption. He subsequently formed a relationship with his current wife with whom he has two children. There was a period of separation, but the relationship has been stable since 2010 and his wife remained supportive of him at the time of sentence.

51. Mr Flower was involved in the horseracing industry for many years and had some success as an owner and trainer. He said this led him into an extravagant lifestyle including drug and alcohol abuse and making “bad decisions”. He claimed that the motivation for his involvement in the offending was an attempt to save his business. While the sentencing Judge accepted that a “portion even perhaps a significant portion of the benefits [he] derived from his offending were directed into his business”, her Honour noted that not all of it was so directed and some was wasted on gambling.

52. While Dr Eagle referred to “debilitating anxiety and substance abuse” and said this provided the context of his offending, the sentencing Judge found that Mr Flower was “a man with business acumen and intelligence” and “understood exactly what he was involving himself in when he elected to participate in a scheme to import cocaine”. Her Honour also found that the applicant understood the seriousness of the criminality inherent in the crime.

53. Her Honour found there was “little to nothing” in Mr Flower’s subjective case that reduced his moral culpability. I would not depart from that finding in exercising the sentencing discretion afresh.

Mr Mafiti

54. Mr Mafiti tendered a report by Dr Susan Pulman, a forensic psychologist, which set out a personal history provided by the applicant during two consultations conducted in November 2021. Again, the sentencing Judge appeared to accept the factual basis of the report.

55. Mr Mafiti was born in Western Samoa in 1968 and was the fifth of eight children. When the applicant was nine years old, his parents moved the family to New Zealand but only the four younger children were able to migrate at the time. The older children moved around ten years later, and this resulted in disharmony between the siblings. The applicant was bullied and physically assaulted by the older children. Mr Mafiti’s mother died of a stroke in 2001 and his father passed away ten years later. His childhood and schooling was unsettled and he left school in year 11 to get a job in an abattoir. He had a steady history of employment and came to Australia with an uncle, with whom he worked for a time, before getting the job as a baggage handler with Qantas in 2000.

56. Mr Mafiti has a 21-year-old daughter from a previous relationship and enjoys the support of one previous partner (who provided a reference on sentence) and his current partner.

57. Psychological testing suggested Mr Mafiti had “poor verbal and abstract reasoning skills”. The sentencing Judge seemed to accept Dr Pulman’s opinion that “aspects of [the applicant’s] background, including physical abuse and stressors he experienced as a child could have impacted his brain development and led to difficulty with impulse control, reasoning and judgment”. However, the sentencing Judge held that this was not capable of explaining his involvement over three years in the criminal enterprise for significant financial reward. Again, her Honour found that little to nothing in his subjective case or personal history reduced Mr Mafiti’s moral culpability.

Evidence of family hardship

58. Because of its significance to the ground of appeal that must be upheld in each case, and because it was a matter not taken into account by the sentencing Judge at first instance, it is appropriate to deal in a little more detail with the evidence relating to the hardship to the applicants’ families.

Evidence adduced at first instance by Mr Flower

59. At the time of sentence Mr Flower had been married for 20 years and had two daughters aged 16 and 18 years. I will not name the children, but will refer to them as the older and younger daughter. The following evidence was tendered to establish the hardship experienced by Mr Flower’s wife and daughters since his arrest:

Mr Flower’s letter to the Court dated 8 December 2021

60. Mr Flower wrote a letter of apology to the Court in which he expressed remorse for the “trail of destruction” he had caused to the community and to his family. He described the “pain and anguish” he had caused to his wife and daughters as “immeasurable” and said he “let [his] daughters down” and left them without a father. He said that both his father and mother-in-law passed away while he was in custody and that he was unable to attend their funerals and was not there to support his mother, wife and daughters.

61. Mr Flower said that during the COVID-19 pandemic in 2020 and 2021 he could not have face-to-face visits with his family. He said that this took a “monstrous toll” on his wife and daughters “both physically and emotionally”. His absence had a particular impact on his younger daughter “who suffers from an incurable bowel disease, which is severely heightened by stress”.

Camilla Flower’s letter dated 8 December 2021

62. Mr Flower’s wife, Camilla Flower, also wrote a letter to the Court. She said that her family’s world was “ripped apart overnight” when Mr Flower was arrested. She became a single mother to two teenage daughters who have chronic health issues. She struggled to run the household, support her daughters physically and emotionally and found it difficult to leave the house.

63. Mrs Flower suffers from anxiety, depression and panic attacks and was diagnosed with adjustment disorder after her husband’s arrest. She takes regular medication and sees a counsellor to help her deal with her mental health issues. Mrs Flower described her husband as a “hands-on dad” and said that his incarceration was especially difficult for their daughters. She confirmed that during the COVID-19 pandemic the family were unable to visit Mr Flower in custody. This was hard on their daughters who missed physical interaction with their father.

Medical certificates by Dr Rajiv Pothen dated 28 and 30 August 2019

64. Dr Rajiv Pothen is a general practitioner and has been treating Mrs Flower and her daughters since 2007. He provided three medical certificates to the Court in which he provided the following diagnoses and opinions:

1. Dr Pothen diagnosed Mrs Flower with high cholesterol, mixed anxiety and depressed mood. He said that her husband’s incarceration left her responsible for the sole care of the couple’s daughters, caused significant financial pressure, and led to a deterioration in her mental health. He said that her mental health issues will affect her ability to take care of her daughters and their health problems.

2. Dr Pothen confirmed that Mr Flower’s younger daughter was diagnosed with inflammatory bowel disease (likely ulcerative colitis) in 2011. The condition is chronic, requires ongoing medication and regular specialist reviews and colonoscopies. He assessed her as having a depressed mood and said she was likely to experience psychological grief, depression, stress and anxiety due to her father’s incarceration. He believed that her mother’s current mental state will also affect the child’s mental health.

3. Dr Pothen said the older daughter was diagnosed with autoimmune hypothyroidism (Hashimoto’s disease) in 2018. The condition is a lifelong illness that requires treatment by daily thyroid supplements. Her father’s incarceration and absence from the home will impact on her mental health, the management of her chronic medical condition and could cause her depression, anger and anxiety. He stated that her mother’s mental state could also affect the daughter’s psychological wellbeing.

Letters of Associate Professor Avi Lemberg dated 19 August 2019 and 31 August 2021

65. Associate Professor Daniel Avi Lemberg from the Sydney Children’s Hospital provided letters to the sentencing Court which confirmed that Mr Flower’s younger daughter had been cared for by the gastroenterology team for inflammatory bowel disease since March 2011. Dr Avi Lemberg said the symptoms of the disease can flare up or worsen with stress whereupon the child may require hospitalisation until the symptoms resolve. On 19 August 2019 Mr Flower’s daughter was observed to be distressed during a consultation as a result of “the impact of [her father’s] ongoing incarceration on her and her family and her illness”. However, the condition had been stable since March 2018.

Evidence tendered by Mr Flower on the appeal

66. Two further affidavits both dated 12 February 2024 were read on the hearing of the appeal on “the usual basis”, that is to be used if the Court came to re-sentence. The affidavits were made by the applicant’s daughters who were aged 18 and 20 years at the time of his appeal.

Mr Flower’s younger daughter

67. Mr Flower’s younger daughter said that her father is “the most important person in her life” and “her best friend and number one supporter”. She said that her father’s sentence has left her in a “state of loss” and has created “instability” in her and her sister’s lives. She feels scared to face any milestone or challenge without her father and does not want him to miss out on her life. It is difficult to travel to prison and she worries about being able to see him if he is transferred to another facility. Not being able to see or speak to her father has taken a huge toll on her mental and physical health.

68. She confirmed that she has had an inflammatory bowel disease since 2011 and that, while her condition has been stable since her father’s sentence, she gets sick very easily. Before he was taken into custody, her father helped her manage the condition and provided her with emotional support. She has lost his hands-on support and does not get the support she used to have at home. She constantly worries about ending up in hospital without her father.

69. The younger daughter said that her family was so distraught immediately after the sentence that they did not leave their house for days. She said that her mother was unable to cope with her father’s sentence and her parents separated towards the end of 2023. She disagreed with her mother’s decision to end the marriage and this has created conflict and placed strain on the mother/daughter relationship. Her mother does not speak to Mr Flower, and the home environment has become “really bad and sometimes hostile” as the daughters feel they cannot speak about their father in front of their mother. Her parent’s separation has made her feel stressed, lost, confused and alone.

70. Her father was sentenced in her final year of high school. She felt sad and distraught over his sentence and was unable to focus on her studies. She took 28 days of partial absence and 13 days of total absence from school in 2022. She did not achieve the ATAR she had hoped for and did not qualify for her preferred university degree. She chose not to attend university because she did not want to attend while her father is in prison. Neither of her parents were at her school graduation. She said that graduating without her father by her side was the “worst most lonely feeling”. She also had to quit her part time customer service job due to the deterioration in her mental health.

Mr Flower’s older daughter

71. In January 2023 Mr Flower’s older daughter was diagnosed with anxiety and depression, placed on a mental health plan and started seeing a psychologist regularly to help her come to terms with her father’s incarceration. She said that her father’s sentence had a deep impact on her. He was unable to attend her school graduation or her 20^th birthday celebration, and was in custody when she was admitted to university.

72. She said she struggles to comprehend that her father will miss out on her future life milestones. She described her experience as a “daily grieving process … knowing [her] dad is alive but feeling at the same time that he is not alive because he’s not actually present”. She feels anxious and depressed when she visits him in prison and worries constantly about her father’s safety.

73. She also said that the separation of her parents has placed additional stress and responsibility onto her as the eldest sibling. She has become an intermediary between her parents, helps her father with his financial and legal problems by speaking to accountants and lawyers, and tries to play a parental role in relation to her younger sister. She has difficulties obtaining regular guidance from her father and cannot talk to her mother about her father’s incarceration. She said that the breakup of her parents has been “the worst experience of [her] life” and has forced her to grow up quickly. She is not experiencing the normal life of a person of her age.

74. She confirmed that she was diagnosed with Hashimoto’s disease in October 2018. She suffers from a variety of symptoms including fatigue, insomnia, abdominal pain, endometriosis and menorrhagia.

75. The older daughter has struggled to apply herself to, or attend, university due to her mental health issues which arose after her father’s incarceration. She had to be placed on a disability and education inclusion plan in 2023, which provides support to students who have mental health issues. At the end of 2023 she felt like she could not cope with university until her father’s appeal process was complete, and she deferred her degree to the end of 2024. She struggles with the reality that she will not have her “dad home for over half [her] life”. She continues to support him but “it has been hard” and “will be harder as time passes”.

76. The content of her affidavit was supported by various annexed documents including her mental health treatment plan, medical certificates, a letter from her psychologist and her education inclusion plan.

Evidence tendered by Mr Mafiti at the sentence hearing

77. Mr Mafiti’s daughter, Makiah Mafiti, provided an affidavit dated 10 December 2021. She was 22 years old when her father was sentenced. She said:

“I miss my dad greatly and I struggle at times without him being there, though my upbringing has taught me to be independent I still need my Dad. Since he has been arrested I have struggled greatly with depression and anxiety. I do wish he was able to see me progressing through life and see my accomplishments.”

78. She said that Mr Mafiti’s partner, Kylee Petterson, has serious mental health issues and attempted suicide three times due to Mr Mafiti’s incarceration.

79. Two of Mr Mafiti’s brothers also provided affidavits, each of which was dated 10 December 2021. Aukuso Mafiti observed that Makiah had a close relationship with her father and was “troubled” by his arrest. He said that Ms Petterson became lost and irrational after Mr Mafiti was arrested and this caused a rift in their family. The younger brother, Faaiu Seluoge, described Mr Mafiti and his daughter as having a “very close loving relationship” and that she was “devastated” by his incarceration. Mr Mafiti told Mr Seluoge that he feels “great shame” for letting his daughter down.

80. Mr Mafiti provided a letter of apology to the Court dated 2021. In the letter he stated:

“I accept full responsibility for what I have done. I accept the seriousness of what I have done. My involvement in crime had caused harm to the community and caused my family pain and suffering.”

Mr Mafiti’s evidence on appeal

81. An affidavit of Mr Mafiti’s solicitor was read on the usual basis at the hearing of the appeal. Four letters were annexed describing the hardship to the family arising from Mr Mafiti’s incarceration:

1. A letter from Kylee Petterson dated 15 February 2024 described the “profound impact” the case has had on her life. The experience was “emotionally and physically taxing”. She struggles with her mental health as a result of becoming a single parent to their eight-year-old son and losing her job during the COVID-19 pandemic. She said the “absence of [the applicant’s] emotional and financial support” has “[made] it challenging to maintain a positive and healthy mindset” for herself and her son. She does not have much family support and has difficulties in maintaining her home and meeting basic living expenses. This is the direct result of losing Mr Mafiti’s steady income.

2. Makiah Mafiti wrote a letter dated 17 January 2024 in which she said that when her father was arrested her life “changed for the worst” and that his arrest has “broken the family apart”. While she was only 20 years old, she had to look after her father’s partner who has attempted suicide several times. She suffered from anxiety and depression, left her job for six months and abused alcohol to help ease the pain. She said it felt like “grieving a loss of someone that was still alive”. Her father was her “biggest support system” and his incarceration means that he can no longer support her and will miss many important years of her life. She will “miss him everyday”.

3. Mr Mafiti’s younger brother, Aukuso Mafiti, wrote a letter dated 16 January 2024. He said the applicant helped him to migrate to Australia when he was 18 years old. Since his brother’s arrest he has “been struggling with mental health issues and 1[is] still trying to figure out how [his brother] got involved”. He blames himself and it has affected him so badly that he has been unable to visit or write to his brother.

4. Mr Mafiti’s cousin, Mark Godinet, wrote a letter to the Court dated 18 January 2024. He has a close relationship with Mr Mafiti and said that “the impact [Mr Mafiti’s] incarceration has had on our family has left a big void that cannot be filled. It felt like we were grieving a loss in the family”. While it has not been easy, the family continues to support Mr Mafiti. He believes that Mr Mafiti is remorseful for letting himself and his daughter down.

Re-sentencing

82. The Court must exercise the sentencing discretion afresh and do so in accordance with the High Court’s decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. In Turnbull v R [2019] NSWCCA 97 at [42], Simpson AJA emphasised the need for an appellate court that re-exercises the sentencing discretion “to put aside the sentence imposed at first instance”. At [44] her Honour described the process in the following terms:

“… the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that ‘no lesser sentence is warranted in law’. This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in Simpson and Baxter, and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender’s prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon.”

83. Harrison CJ at CL has said that there is an element of artificiality in this Court purporting to disregard altogether the sentence imposed in the court below: see Tenenboim v R [2024] NSWCCA 1 at [41]; see also N Adams J at [66] (Stern JA agreeing) where her Honour explained how the remarks of the Chief Judge should be taken.

84. On the hearing of the appeal, and putting to one side the grounds of appeal raised by each applicant, very few issues were taken with the sentencing Judge’s factual findings or to her application of relevant legal principles. In re-sentencing the present applicants, it is appropriate to proceed for the most part on the basis of the facts found by her Honour. For the most part, those facts are not in dispute. Similarly, except where indicated elsewhere in this judgment, the legal principles applied by her Honour in her comprehensive sentencing remarks are the same as those that this Court should apply. The relevant sentencing principles are well established and their application to the present case largely devoid of controversy.

85. In accordance with the submission made by the Prosecutor at first instance, and the approach taken by the sentencing Judge, the sentence for the proceeds of crime offences should be concurrent with the importation offences. The massive reward obtained by each offender, which forms the basis of the proceeds offences, is one of the matters that informs the objective criminality of the drug offences. In the particular circumstances, the criminality involved in that offence can be encompassed by the lengthy sentence that must be imposed on each offender for the drug offence.

86. It is well established that in cases of this nature general deterrence must be given significant weight in the balancing of competing objectives in the sentencing exercise. While I accept Mr Walker SC’s criticism of the expression “paramount importance” in this context, there is no getting away from the fact that Australian courts have consistently emphasised the role of deterrence in large drug cases over many years. Similarly, the scale of the enterprise and the role played by each offender must be reflected in the sentence imposed. In other words, each of the applicants must be adequately punished and held accountable for their actions. The punishment must be proportionate to the gravity of the crime and denunciation has a significant role to play.

87. Each of the applicants pleaded guilty and there was no dispute that the discounts for those pleas were correctly assessed and applied by the sentencing Judge. Like her Honour, I would reduce Mr Mafiti’s sentence by 20% for the importation offence and 25% for the proceeds offence, and Mr Flower’s by around 10% for each offence, to reflect the “utilitarian value” of their guilty pleas.

88. I have considered the psychiatric and psychological evidence relating to each applicant and, in Mr Mafiti’s case, the evidence of his dysfunctional and deprived childhood. While these are important factors to be considered in sentencing, I agree with and adopt the sentencing Judge’s finding that the moral culpability of each of the offenders is not diminished to any significant extent by reference to these matters.

89. Neither Mr Flower nor Mr Mafiti have any previous criminal convictions of significance. The former had one conviction for assault in Queensland in 2009, and the latter some relatively minor driving offences going back to 1993 and 2007-2008. Both applicants present as well-regarded family men with solid histories of employment who were able to provide evidence of their good character and substantial family and community support.

90. I would also adopt the sentencing Judge’s findings as to the prospects of rehabilitation of each of the applicants and her Honour’s acceptance of their respective expressions of remorse. The pleas of guilty, in addition to attracting a numerical discount, also reflect a willingness to facilitate the course of justice.

91. Each applicant was entitled to a degree of leniency in view of the prior good character and lack of significant antecedents. However, the duration of the offending diminishes the significance of their prior good character. The personal circumstances of each man, and the devastating impact their offending and sentencing has had on their families, must not distract the Court from the grave criminality involved in each case.

Mr Flower’s role and objective criminality

92. I have indicated earlier that the evidence did not support a finding that Mr Flower was a principal in the enterprise as that expression is generally understood. That means his objective criminality is less than it might have been had it been established that he was a principal. That having been said, his role was significant and, in a sense, managerial or facilitative. He advised Mr Mafiti of the flights on which the drugs were secreted and either collected those drugs from Mr Mafiti or, at least by inference, played a facilitative role in others collecting them. There can be no doubt he was aware of the very large quantities of drugs involved. He participated at a relatively high level over a lengthy period and did so for a massive financial reward.

93. There was a very large quantity of drugs involved, more than one hundred times the relevant commercial quantity. [2] This was a sophisticated enterprise undertaken with success over a number of years and involved using an insider at the Sydney airport to import the drugs.

    2. The commercial quantity of cocaine is 2kg: Criminal Code Regulations 2019 (Cth) sch 1, 1 (67).

94. Mr Flower’s objective criminality was very grave.

Parity and Mr Mafiti’s objective criminality

95. Mr Mafiti’s role was crucial to the enterprise and his criminality was also very high. However, on all of the evidence, he was operating at a lower level than Mr Flower and on the evidence in his (Mr Mafiti’s) case, he was receiving directions from Mr Flower. Against that, Mr Mafiti’s position at the airport, and his use of his access to incoming baggage, was a crucial matter that allowed the importations to occur. His role, while relatively low in the hierarchy of a sophisticated criminal network, was critical and, as the amount of money found in his possession demonstrates, highly profitable. As I have said, I do not accept the submission made on appeal that he merely “hopped on” to the “criminal train” from time to time.

96. To comply with the requirement for equal justice and parity of sentencing, the sentences must reflect the differences between the cases. They must not leave either applicant with a justified sense of grievance arising from a lack of due proportion. The sentences I propose achieve this, and the relative proportion between the sentences align reasonably closely with that settled on by the sentencing Judge.

97. While Mr Mafiti’s offending was less serious than Mr Flower’s, it represented criminality of a very high order.

Comparable cases and the instinctive synthesis in each case

98. The parties were industrious in supplying the Court with some comparative cases and I am grateful for their lawyers’ diligence. I have considered the outcome in other cases and the statistics relating to offences of this kind. There is little doubt that the present cases represented a very serious example of offences of their kind and the sentences must reflect this. In respect of the major offence, the legislative maximum penalty of life imprisonment must be borne in mind through the process. However, the case of neither applicant falls at the very top of the range of offending. There are cases, albeit not many, where greater quantities of drugs are involved and neither offender stood at the top of the hierarchy of the enterprise in which they were involved. It is well settled that the quantity of drug is only one consideration in an assessment of the objective seriousness of the offence. However it is an important consideration particularly where the offences traverse a lengthy period of time.

99. I have considered the outcomes in the authorities provided by the parties and the submissions made on each side as to the similarities and differences between the cases. Of some assistance, in terms of ensuring consistency of punishment for generally similar cases, are the decisions in R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531, Heng v R [2019] NSWCCA 317, Parker v R [2020] NSWCCA 206, Tawfik v The Queen (2021) 64 VR 561; [2021] VSCA 289, Li v R [2021] NSWCCA 100, Jomaa v R [2022] NSWCCA 112.

100. However, there is force in the submissions on both sides that there are significant distinguishing features in each of these cases. The analysis bears out the axiomatic and oft repeated proposition that no two cases are alike. To use an example, the case of Jomaa v R involved a similarly large quantity of drugs but the applicant was involved at an extremely high level of the scheme (a principal if one attaches a label to his involvement) and jet-setted around the world organising a massive importation. On the other hand, the majority in this Court found the involvement of an agent provocateur to be an important factor that required a significant amelioration of the sentence. Similarly, the cases of Parker v R and Tawfik v The Queen involved offenders operating at the “head” or apex of the criminal hierarchy in syndicates involved in extremely large drug importation operations. [3] Neither of those men pleaded guilty which impacts both in a mathematical way – that is, they received no sentencing discount – but also in the courts’ consideration of matters such as remorse and rehabilitation.

     3. In Parker v R [2020] NSWCCA 206 at [98]-[99]: “Although the applicant could not be placed in any notional hierarchy because so little was known about the hierarchy, his role was essential to the enterprise… Sweeney DCJ described the applicant’s role in the importation of the cocaine as being ‘essential and high ranking’ and her Honour found that the importation offences were ‘very serious’.” In Tawfik v The Queen (2021) 64 VR 561; [2021] VSCA 289 at [217]: “Tawfik was neither the ultimate purchaser nor the original supplier. His role was to facilitate the importation by retrieving the cocaine shipment and passing it on to the Sydney syndicate — its eventual purchasers. He did so for an undetermined but no doubt substantial fee. His role was protracted and significant, but he was not at the apex of either syndicate”.

98. I have considered the outcome in these and other cases but have done so with circumspection and caution. The starting points on which I have settled fall within the wide range of sentencing outcomes reflected in the statistics and do no violence to the desirable objective of achieving consistency of punishment.

99. In Mr Flower’s case, the impact on his family has been devastating. Mr Mafiti’s upbringing was one of dysfunction and deprivation. Again, those matters, while very sad and relevant, cannot overwhelm the grave objective seriousness of the offending in each case.

100. In Mr Flower’s case, I would commence with a sentence of 24 years for the commercial importation offence. With a reduction of 10% for his plea of guilty, and a little rounding down, the total sentence would be 21 years and six months. For the proceeds of crime offence, and allowing for the 10% discount, I would impose a sentence of 4 years. That is the same sentence imposed by the sentencing Judge. It is somewhat academic because it will be served concurrently with the sentence imposed for the commercial importation offence. I would adopt roughly the same proportion between the total sentence and non-parole period as did the sentencing Judge (approximately 60%). There would be a single non-parole period of 13 years.

101. In Mr Mafiti’s case, I would commence with a sentence of 20 years for the importation offence. With the 20% reduction for the importation offence and the 25% reduction for the proceeds offence for the utilitarian value of his guilty pleas, the total sentence would be 16 years. Again, I would impose the same concurrent sentence for the proceeds offence as that settled on by the sentencing Judge (ie 5½ years). Adopting the same proportion as the sentencing Judge (around 60%) and with a little rounding down, I would set a single non-parole period of 9 years 6 months.

Orders

105. For those reasons, the orders I would make in Mr Flower’s case are as follows:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. The sentences imposed in the District Court on 11 February 2022 are quashed and in lieu thereof, Damion Flower is sentenced:

1. For the importation of a commercial quantity of a border-controlled drug (cocaine), to imprisonment for 21 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2040.

2. For the proceeds of crime offence, to imprisonment for 4 years commencing on 22 May 2019 and expiring on 21 May 2023.

3. There will be a single non-parole period of 13 years commencing on 22 May 2019 and expiring on 21 May 2032.

4. Direct Mr Flower’s legal representatives to explain these sentences, and the practical implications of the total effective sentence and non-parole period to Mr Flower.

106. I would make the following orders in Mr Mafiti’s case:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. The sentences imposed in the District Court on 11 February 2022 are quashed and in lieu thereof, To’oto’o Mafiti is sentenced:

1. For the importation of a commercial quantity of a border-controlled drug (cocaine), to imprisonment for 16 years commencing on 22 May 2019 and expiring on 21 May 2035.

2. For the proceeds of crime offence, to imprisonment for 5 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2024.

3. There will be a single non-parole period of 9 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2028.

4. Direct Mr Mafiti’s legal representatives to explain these sentences, and the practical implications of the total effective sentence and non-parole period to Mr Mafiti.

107. SWEENEY J: I agree with the orders proposed by Hamill J and his Honour’s reasons for those orders.

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Endnotes

Decision last updated: 22 May 2024