Garcia v R

[2013] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Peter Antonio Garcia v R [2013] NSWCCA 241

Hearing dates:

3 October 2013

Decision date:

31 October 2013

Before:

Emmett JA at [1]
R A Hulme J at [4]
Bellew J at [5]

Decision:

1.Leave to appeal granted.

2.Appeal dismissed.

Catchwords:

APPEAL - sentence - where applicant pleaded guilty to intentionally importing a quantity of pseudoephedrine - where evidence that applicant suffered from mild mental retardation - whether sentencing judge erred in failing to have regard to the effect of that condition upon moral culpability and general deterrence - where sentencing judge commenced with a starting point of 4 years and 2 months imprisonment against a maximum penalty of five years imprisonment - whether the adoption of that starting point was indicative of manifest excess - consideration of role played by applicant in importation - relevance of quantity of drug imported and applicant's knowledge of that quantity - limited use of statistics and other decisions said to be comparable - sentence not manifestly excessive - appeal dismissed

Legislation Cited:

Customs Act 1901 (Cth)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Han v R [2009] NSWCCA 300
Jolly v R [2013] NSWCCA 76
Olbrich v R (1999) 199 CLR 270
R v Hili;R v Jones [2010] HCA 45; 242 CLR 520
Wong v R (2001) 207 CLR 584

Category:

Principal judgment

Parties:

Peter Antonio Garcia - Applicant
Regina - Respondent

Representation:

Mr G Brady - Applicant
Mr G Farmer SC - Respondent
Nyman Gibson Stewart - Applicant
S Kavanagh Solicitor for Public Prosecutions - Respondent

File Number(s):

2013 / 43022

Publication restriction:

Nil

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-05-24 00:00:00

Before:

Knox DCJ

Judgment

1. EMMETT JA: The applicant seeks leave to appeal from a sentence imposed on him in the District Court after he pleaded guilty to an offence under the Customs Act 1901 (Cth). The offence was intentionally importing prohibited Tier 1 goods, namely, a quantity of pseudoephedrine. The maximum penalty for that offence under the Customs Act is a fine of $100,000 or imprisonment for five years or both. The applicant was sentenced to a term of imprisonment for a period of two years and six months with an order that he be released on a recognisance after a period of 18 months, with a condition that he be of good behaviour for a period of 12 months.

1. The applicant relied on two grounds of appeal, having abandoned a third ground. The two grounds that were pressed were as follows:

• the sentencing judge failed to give any, or any adequate, weight to the applicant's mental illness as it affected the moral culpability of the applicant and the significance of general deterrence; and

• the sentence imposed was manifestly excessive.

1. I have had the advantage of reading in draft form the proposed reasons of Bellew J. I agree with his Honour's conclusion that leave to appeal should be granted, but that the appeal should be dismissed. I agree with his Honour's reasons for those orders. In particular, I agree with Bellew J that the applicant's submission that the sentencing judge failed to give proper consideration to the extent to which his mental retardation impacted upon general deterrence should be rejected. I also agree with his Honour that the applicant's submissions that the sentence imposed on him was manifestly excessive should not be accepted.

1. R A HULME J: I agree with Bellew J.

1. BELLEW J: On 24 May 2013 the applicant pleaded guilty before his Honour Judge Knox in the Sydney District Court to an offence of intentionally importing prohibited tier 1 goods, namely a quantity of pseudoephedrine, contrary to s. 233BAA(4) of the Customs Act 1901 (Cth).

1. The maximum penalty for an offence against s. 233BAA(4) is a fine of $100,000.00 or imprisonment for 5 years, or both.

1. The applicant was sentenced to imprisonment for a period of 2 years and 6 months to commence on 6 June 2012 and to expire on 5 December 2014, with an order that he be released on a recognisance after a period of 18 months with a condition that he be of good behaviour for a period of 12 months.

1. The applicant now seeks leave to appeal against that sentence.

THE FACTS

1. A lengthy statement of agreed facts, which incorporated parts of a statement made by the applicant to the Australian Federal police on 25 February 2013, was tendered before the sentencing judge. The following summary is taken from that statement of agreed facts.

1. In early 2012 a friend of the applicant ("POI 2") asked the applicant to drive him to the apartment of another friend on the Gold Coast. Upon arrival the applicant waited inside his vehicle. POI 2 entered the friend's premises before returning with a white bag in which there was a bottle containing brown liquid. The applicant was told by POI 2 that it might be "pseudo liquid" which was put on ecstasy tablets to give them a "better kick".

1. POI 2 left the bag containing the bottle in the applicant's vehicle, subsequent to which the applicant threw it out. Several days later, the applicant left his car parked on the Gold Coast Highway after being stopped by police. Subsequently, when the applicant was in the company of POI 2, the police called to inform him that his vehicle had been broken into and that the stereo and speakers had been stolen. When POI 2 and others enquired of the whereabouts of the bottle, the applicant told them that it must have been stolen with the other items. POI 2 told the applicant that because the bottle could have been sold for a sum of $90,000.00 he now owed POI 2 that sum.

1. It was about this time that the applicant met the co-offender, Rolando Musa ("Musa") through his friends.

1. In about May 2012, POI 2 and another person ("POI 1") proposed a "job" to the applicant which, if it were undertaken, would pay off the $90,000.00 and pay the applicant a further $20,000.00. The applicant was told that the job entailed going to Vietnam for a short holiday to "grab some stuff and come back". The applicant subsequently gave POI 1 and POI 2 his passport.

1. The applicant later discussed the proposed trip with a friend who advised him against it. He then telephoned POI 1 and told him that he had decided that he could not undertake the trip as he was too scared. In response, POI 1 reassured him that there was nothing to be worried about, that he (POI 1) and others had completed a similar trip before, and that in particular, he did not have to collect the checked bags "containing the stuff" upon his arrival back in Australia. The applicant was then told that he could not withdraw from the plan and that if he sought to do so he would be "bashed". The applicant did not ask what the "stuff" was, and he was not told. He told police that he did not want to know what he was bringing back.

1. A few days later POI 2 told the applicant to pack in preparation for the trip. POI 2 booked a flight for himself and the applicant to Sydney, and two days later Musa drove to Sydney. Whilst in Sydney, the applicant was told that the organisers proposed that a total of five people, spread over three groups, would travel to Vietnam simultaneously. The applicant was told that he would be travelling with Musa.

1. As events transpired, the applicant and Musa waited in Sydney for a longer period than was originally envisaged. This, the applicant was told, was because delays had been experienced in the availability of the substance which was to be imported. During that two week period the applicant and Musa were given several thousand dollars to divide between them to cover their expenses.

1. For some of the period in which he was in Sydney the applicant stayed at POI 1's premises. During that time, a number of items were delivered to those premises. They included five large silver suitcases, a bag containing three mobile telephones (one of which was given to the applicant and another to Musa) and another bag containing money for air tickets and expenses from which the applicant and Musa were given between eight and nine thousand dollars. There were also blank name tags on which POI 1 told the applicant and Musa to write their names. When the applicant asked why he was being asked to do that, he was told that it was so that "the guys at the airport know who's bag is who's".

1. The applicant and Musa were told by POI 1 that they would each be travelling with a silver suitcase bearing a name tag. They were directed that they were to buy hand luggage and clothes in Vietnam, and that the clothes were to be rolled up and put inside the suitcases so as to form a "barrier" for the substance which would be secreted in the middle. They were told that once the bags had been checked in at the airport for the return flight to Sydney, they would never see it again. They were also directed to tear up the record which would be placed in each of their passports indicating that they had checked baggage.

1. On 1 June 2012 the applicant, Musa and POI 1 went to Flight Centre at World Square, Sydney. The applicant told a travel consultant that he wished to book a flight to Ho Chi Minh City for himself and Musa, and said that they were travelling to Vietnam for a friend's party (that being a story he had made up at the direction of POI 1). As the travel consultant was searching for economy class flights, POI 1 said that he had booked his own flight to Vietnam with Thai Airways and that the three of them wanted to travel together. POI 1 then confirmed which flights were to be booked for the applicant and Musa, so as to correspond with his own booking.

1. Flights were then booked for the applicant and Musa, departing Sydney on the following day and flying to Ho Chi Minh City via Bangkok, and returning to Sydney on 6 June 2012 via the same route. The cost of each ticket was $4,252.60. Cash totalling $8,505.20 was handed to the travel consultant by the applicant and Musa.

1. Upon arrival at Sydney Airport on the morning of 2 June 2012, the applicant and Musa each checked in one large silver suitcase. They then flew to Ho Chi Minh City.

1. On 4 June 2012 the applicant and Musa went to a market to purchase the hand luggage and clothing as they had been instructed. Later that day, two suitcases were delivered to their hotel which they took back to their room. Those suitcases contained a number of packages which Musa and the applicant proceeded to secrete, amongst clothing and other items, in each of the silver suitcases they had brought with them from Sydney.

1. On 5 June 2012, the applicant and Musa arrived at the airport in Ho Chi Minh City where they each checked in a silver suitcase containing the packages. They then flew back to Sydney, arriving on the morning of 6 June 2012.

1. Upon their arrival in Sydney, and as a consequence of information received by the Australian Customs and Border Protection Service, customs officers located the two silver suitcases. One bore the name of Musa on an attached green tag ("suitcase M"). The other suitcase ("suitcase G") did not have a name tag on it. Following an examination by the Customs Detector Dog Unit, the suitcases were placed onto the baggage belt and conveyed to the baggage collection area.

1. The applicant and Musa exited the primary line and proceeded directly towards the airport exit, by-passing the baggage collection area. Upon arrival at the examination barrier they each presented their passport, along with a signed incoming passenger card, to a customs officer. Each of them told the officer that they had no luggage other than the hand luggage in their possession. They were then told that their bags would be searched, upon which they were escorted to the customs examination area and searched separately.

1. A customs officer then brought suitcase M to the applicant, at which time the following conversation took place:

"Officer: We checked with the airline and we know its your bag. Is this your bag (pointing to suitcase M)?

Applicant: Yes

Officer: Why didn't you collect your bag?

Applicant: I don't know.

Officer: You don't know why you didn't collect your bag?

Applicant: I don't know.

Officer: Is it because there maybe something illegal in there?

Applicant: I don't know. It's not my bag.

Officer: You just told me it was your bag.

Applicant: It's not my bag.

Officer: Well whose bag is it?

Applicant: I don't know."

1. Another customs officer then approached and informed the applicant that there were available records confirming that he had checked in a bag at Ho Chi Minh City Airport before departing for Sydney. The applicant then admitted that suitcase M belonged to Musa and that suitcase G belonged to him. The applicant then made a number of other remarks including the following:

"I may as well neck myself. I don't want to fuck you guys around. I don't want to waste your time. What do I get for trafficking?"

1. A subsequent examination of suitcase G by customs officers revealed quantities of white powder contained in:

(1)   5 x 2.5 kilogram food packages with Korean writing purporting to contain wheat flour;

(2)   3 x 1 kilogram food packages with Korean writing and a picture of curry sauce;

(3)   5 x 1 kilogram food packages with Korean writing purporting to contain breadcrumbs.

1. The 13 packages were secreted within layers of shirts and other items of clothing. A sample of the white powder taken from one package tested positive to ephedrine.

1. The total weight of the powder in the packages in suitcase G was 20.613 kilograms. Forensic analysis revealed that the powder contained pseudoephedrine, the purity of which ranged between 68.4 percent and 72 percent. The pure weight of the pseudoephedrine was calculated to be 14.371 kilograms.

1. An amount of 14.371 kilograms of pseudoephedrine can produce a practical yield of 9.701 kilograms of high grade methylamphetamine hydrochloride, commonly known as "ice". The wholesale value of ice derived from 14.371 kilograms of pseudoephedrine is estimated to be $2,425,250.00. The street value is estimated to be $7,760,800.00.

1. An examination of suitcase M revealed quantities of white powder contained in:

(1)   4 x 1 kilogram food packages with Korean writing and a picture of curry sauce;

(2)   1 x 1 kilogram food package with Korean writing purporting to contain breadcrumbs;

(3)   6 x 2.5 kilogram food packages with Korean writing purporting to contain wheatflour.

1. As was the case with suitcase G, the 11 packages were secreted within layers of shirts and other items. A sample taken from one of the packages tested positive to ephedrine.

1. The total weight of the powder in the packages in suitcase M was 20.151 kilograms. Forensic analysis revealed that the powder contained pseudoephedrine, the purity of which ranged between 67.2 percent and 72.6 percent. The pure weight of pseudoephedrine was calculated to be 13.919 kilograms.

1. An amount of 13.919 kilograms of pseudoephedrine can produce a practical yield of 9.395 kilograms of ice. The wholesale value of ice derived from 13.919 kilograms of pseudoephedrine is estimated to be $2,348,750.00. The street value is estimated to be $7,516,000.00.

1. At the time of his arrest, the applicant was offered the opportunity to participate in a record of interview, which he declined. However on 23 February 2013 he made a statement to police in which he detailed the circumstances in which he became involved in the commission of the offence. He also undertook at that time to assist the authorities.

THE GROUNDS OF APPEAL

Ground 1 - The learned sentencing judge erred in that he failed to give any, or any adequate, weight to the applicant's mental illness as it affected (a) the moral culpability of the applicant and (b) the significance of general deterrence.

The evidence

1. The applicant gave evidence at the sentence proceedings. He told the court (commencing at T11) that he had worked in a number of different capacities since leaving school, most recently in the construction industry. He said that he had left school at the age of 16, and that for periods at school he was placed in special classes due to difficulties with reading and comprehension. In the course of the applicant's evidence his Honour indicated (at T15) that he had formed a view, based upon the material tendered on sentence and the applicant's work history, that the applicant was an "intelligent man .... with some initiative".

1. Tendered before his Honour was a report of Dr Jonathon Adams, Psychiatrist, dated 20 May 2013. Under the heading "Psychiatric History" Dr Adams noted that the applicant told him that he had found academic subjects very difficult and that his emotional state from early age had been "up and down". Dr Adams also noted that the applicant had reported having experienced intellectual, emotional and behavioural problems from an early age which saw him placed in special needs classes at school. He also noted the contents of a school report pertaining to the applicant (prepared in 1986) which documented a full-scale IQ of 59 which, he said, "placed (the applicant) in the mild mental retardation bracket". Dr Adams thought that the applicant's reported history was consistent with his having had Attention Deficit Hyperactivity Disorder but was unable to confirm that view in the absence of further material.

1. Dr Adams concluded that there was no clear evidence to suggest that the applicant had experienced an episode of major mental illness such as mood anxiety or psychotic disorder. He went to some lengths to point out that his opinions were based primarily upon the history provided by the applicant, in the absence of any substantial corroborative material. As to the applicant's mental state at the time of offending, Dr Adams said (at page 8):

"In my opinion Mr Garcia's current offence should be viewed in the context of his cognitive impairment particularly the difficulties with problem solving and consequential thinking and his emotional instability and dysregulation. Mr Garcia reported his ability to extricate himself from a problematic situation, within which he felt threatened. It is evident that he has engaged in this offending behaviour with others and he referred to his susceptibility to be misled. Again, I emphasise that I am providing this opinion on the basis of the information currently available. I would be willing to review additional information should it me made available, and review my opinion if appropriate."

1. Counsel for the applicant on sentence expressly acknowledged the qualifications placed by Dr Adams on his various opinions before making the following submission (at T18):

"So the ultimate point I'm getting at your Honour is that Dr Adams' view is that his intellectual disability, I'll refer to it as that, has contributed to the offence. Your Honour would be aware of the principles that if a person's intellectual ability (sic) directly related to the offending, then specific deterrence, less need, and general deterrence, less need".

1. No submission was made by counsel in relation to the impact of the applicant's mental state upon his moral culpability.

His Honour's findings

1. His Honour noted (at ROS 8) the report of Dr Adams before observing:

"The offender gave sworn evidence in these proceedings and I had the opportunity to watch him while he gave his evidence. He was not cross-examined other than being asked questions by me. He showed that he has a degree of intellectual acumen, some quickness in appreciating questions - although his reactions must be seen in the context of him being overawed by the court proceedings.

Nevertheless he has got to the age of 26, working in and living on building projects, a lifestyle which requires a degree of acumen if not intelligence."

1. Having specifically noted (at ROS 10) that he had taken into account Dr Adams' report, his Honour returned to the issue of the applicant's mental state and its relevance on sentence (at ROS 12):

"Stressed very strongly by Mr Conwell, counsel for the offender, was the fact that the decision of DPP (Cth) v De La Rosa [2010] NSWCCA 194 would seem to make it clear that - from the summary at paragraph 1 to 7 - that persons of limited intelligence should not be the subject of a full application of principles of deterrence. While that is true that is generally confined to situations where the culpability factors may be determined adversely by the offender's level of intelligence. I have difficulties with this offender in assessing precisely the extent of his intelligence, against his presentation in the witness box. But nevertheless I am prepared to agree that there should not be a full application of the principles of specific deterrence against him. However, it is clear that the community does call for substantial sentences to reflect principles of general deterrence, particularly when involved with amounts of this precursor substance with this weight, volume and purity.

...

In terms of the offender's rehabilitation and the applicability of his case with the principles of general deterrence, I take into account the principles set out in DPP v De La Rosa at [127] and following."

Submissions of the parties

1. Counsel for the applicant submitted that his Honour had erred in a number of respects when dealing with the issue of the applicant's mental retardation.

1. Firstly, he submitted that his Honour had failed to give consideration to the question of whether, if the applicant did in fact suffer from mild mental retardation, that condition contributed to his offending behaviour. It was submitted that the report of Dr Adams supported such a conclusion, but that the sentencing judge failed to consider it.

1. Secondly, counsel submitted that his Honour had failed to consider the question of whether, if the applicant did suffer from mild mental retardation, and if that condition was causally related to his offending, whether it reduced his moral culpability.

1. Thirdly, counsel submitted that his Honour had failed to give proper consideration to the extent to which the applicant's mental retardation impacted upon considerations of general deterrence.

1. In response, the Crown firstly submitted that Dr Adams had, on more than one occasion in his report, expressly qualified his opinions because of the paucity of material which had been made available to him. It was submitted that as a consequence, the opinion he had expressed concerning the extent to which the applicant's mental retardation contributed to his offending was necessarily guarded.

1. The Crown also submitted that it was open to his Honour to make his own assessment of the applicant and that it was clear from his reasons, particularly those contained in the passage in [41] above, that he was not satisfied that any mental retardation from which the applicant suffered was causally connected to his offending. As I understood it, the Crown's submission amounted to the proposition that in these circumstances, the question of the impact of the applicant's mental retardation upon the issue of moral culpability did not arise.

1. Finally, the Crown submitted that it was evident from the express statements made by the sentencing judge that he had taken into account the applicant's mental retardation when considering the issue of general deterrence.

Consideration and conclusion

1. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, McClellan CJ at CL set out the following sentencing principles applicable to an offender suffering from a mental illness:

"[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]".

1. The opinion of Dr Adams concerning the connection between the applicant's mental retardation and his offending (in [37] above) was expressed in somewhat general terms. His opinion fell short of expressing a definitive conclusion that the applicant's mental health contributed to the commission of the offence in a material way. In these circumstances, the issue of whether the applicant's mental state impacted upon an assessment of his moral culpability simply did not arise. No such submission was ever made to the sentencing judge by counsel who appeared for the applicant on sentence.

1. As outlined above, his Honour made a number of specific references to the report of Dr Adams in the context of considering the applicant's mental state. He also made his own assessment of the applicant, as he was entitled to do, and found him to be a person of some intelligence. It is clear from these aspects of his Honour's reasons that he had regard to the applicant's mental state.

1. Further, having regard to those passages of his Honour's reasons set out in [41] above, I am unable to accept the submission that his Honour failed to give proper consideration to the extent to which the applicant's mental retardation impacted upon general deterrence. His Honour made specific reference to that very principle by reference to the decision in De La Rosa (supra).

1. For all of these reasons, this ground is not made out.

Ground 2 - The learned sentencing judge erred in applying a discount of 5 percent for the applicant's past assistance to the authorities and an overall discount of 45 percent for the plea and assistance to the authorities.

1. This ground was not pressed.

Ground 3 - The sentence imposed was manifestly excessive

His Honour's findings

1. In the course of his reasons, his Honour recounted the facts and made reference to some of the things done by the applicant in the venture surrounding the importation. His Honour also had particular regard to the quantity of pseudoephedrine which was the subject of the importation, observing (at ROS 4) that it was at a "very high part of the range" which he regarded as being "significant in determining the (applicant's) overall criminality".

1. His Honour then made the following finding in relation to the applicant's role (at ROS 11):

"I find that the offender was essentially fulfilling the role of a courier operating at the behest of others. As has been said repeatedly in other cases, the success of an operation such as this relies on there being people such as the offender, usually without prior convictions, taking the risk of participating. Here the offender knew of and had been reminded of the risks. ... To simply accept the fact that he had a bottle containing liquid which was stolen from a car as being the basis for a debt is either not the whole story or involved threats which could have been well avoided or discounted. It is not for me to determine this offender's role in relation to other co-offenders, given their different charges and their different roles, obviously and presumably the different substances, but I do take into account that there are others much further up the chain than this offender, and as well as that, the other aspects of his role that I have set out."

1. His Honour then observed (at ROS 12):

"Clearly there needs to be a sentence which marks the community's abhorrence of the trade, particularly international trade, in precursor substances of this nature. This country has gone to a lot of trouble to implement and restrict the availability of pseudoephedrine to members of the community. That has caused inconvenience to members of the community seeking legitimate access to those kinds of substances. For those procedures and the cost to this community to be subverted by sophisticated schemes whereby these substances come in from overseas, as has clearly happened here, is a matter which needs to be reflected in the total sentence".

1. Although his Honour expressed reservations (at ROS 13) concerning the applicant's prospects of rehabilitation, he indicated a preparedness to extend the period of supervision following the applicant's release from custody. He then said (at ROS 14):

"In my view, given the level of drugs, the volume of them, the amount of them, the purity of them and the value of them, the significance of the offender's role, normally the head sentence would be of the order of 4 years and 2 months imprisonment or 50 months."

1. His Honour applied a total discount of 45 percent to reflect the applicant's plea of guilty, and his past and future assistance to the authorities. He then proceeded to impose the sentence set out in [5] above.

Submissions of the parties

1. The primary submission of counsel for the applicant in support of this ground was that in a case where the maximum period of imprisonment for the offence was one of 5 years, his Honour's starting point of 4 years and 2 months imprisonment was indicative of error, and indicative in particular of the manifest excess of the sentence. In support of that submission counsel for the applicant relied upon a number of matters.

1. Firstly, counsel pointed to his Honour's finding that the applicant was "essentially fulfilling the role of a courier". Counsel also relied on the fact that the applicant's role had been motivated by the existence of the debt and the threats said to have been made against him. It was submitted that all of these matters were inconsistent with the starting point which was adopted by the sentencing judge.

1. Secondly, and whilst acknowledging that his Honour's observations (at [58] above) concerning the quantity of the pseudoephedrine were open to be made, counsel pointed out that his Honour had earlier indicated (at T 17) that despite the quantity, he did not place the matter into a "worst case scenario". It was submitted that this observation, and his Honour's starting point, were not consistent, and that a conclusion that the matter was not in the worst case mandated a starting point below that which had been adopted.

1. Thirdly, counsel relied upon relevant sentencing statistics, along with synopses of sentences imposed in what were said to be comparable cases. Whilst acknowledging that such material was of limited utility, counsel nevertheless submitted that such material supported the conclusion that the sentence imposed by his Honour was manifestly excessive. In particular, having regard to the fact that the applicant's sentence was discounted by 45% to reflect his plea and assistance, counsel submitted that the sentence imposed upon the applicant was, in effect, greater than that imposed upon any other person for this particular offence.

1. In the course of submissions before this Court, counsel for the applicant candidly acknowledged that there was "no doubt" that the applicant's offending warranted the imposition of a sentence which was towards the high end of the range. However, he submitted that the statistical and comparative material supported a conclusion that the sentence imposed was not simply towards the high end of the range, it was in excess of it.

1. The submissions by the Crown concentrated firstly upon the offender's role. In this regard, the Crown emphasised that it was important to concentrate not only upon the things that the applicant had done, but also upon the circumstances in which he did them. Those circumstances, the Crown submitted, included the fact that the applicant had chosen to join a sophisticated and well organised criminal group, the members of which were actively involved in bringing large quantities of an illegal substance into Australia.

1. Whilst acknowledging that it was not a determinative factor, the Crown also relied upon the weight of the pseudoephedrine as an indicator of the seriousness of the offence (see generally Wong v R (2001) 207 CLR 584). The Crown pointed out that the applicant, having been responsible for packing the pseudoephedrine, obviously knew of the weight. This, the Crown submitted, heightened the importance of that factor in the sentencing process.

1. In so far as the statistical and comparative material was concerned, the Crown submitted that it established nothing more than the fact that in a limited number of cases, the penalty imposed in the present case was at the top of the range of sentences which had been imposed. It was submitted that this, of itself, was not indicative of manifest excess.

1. Finally, the Crown pointed to the fact that the various findings reached by his Honour were not the subject of challenge, were justified on the evidence, and were not indicative of error.

Consideration and conclusion

1. In the course of submissions in this Court, counsel for the applicant properly acknowledged that the use of labels such as "courier" to describe a person's role in an importation such as this should be eschewed. He accepted that in considering the role played by the applicant, the relevant enquiry centred upon what he did in the course of the venture which centred upon the importation (see generally Olbrich v R (1999) 199 CLR 270).

1. When that enquiry is undertaken, it becomes immediately apparent that the applicant's role was an important and wide ranging one which included:

(a)   creating a false reason for undertaking the trip;

(b)   organising his travel;

(c)   flying to Vietnam;

(d)   purchasing hand luggage to further the pretence that no other luggage was being carried;

(e)   purchasing clothing for the specific purpose of secreting the substance;

(f)   facilitating receipt of the substance;

(g)   packing the substance in a manner designed to avoid detection; and

(h)   checking in the bags at Ho Chi Minh City Airport so as to facilitate their importation into Australia.

1. All of those things were done by the applicant with the promise of substantial monetary reward. They reflected his agreement to become part of a large and well organised group which was involved in the importation of large quantities of pseudoephedrine into Australia, the members of which included baggage handlers at Sydney Airport whose role it was to intercept the bags upon their arrival. Against that background, what was done by the applicant demonstrates the nature, extent and significance of his role. It was a role which was far more wide ranging than, for example, that played by a person who does no more than receive a substance overseas and then import it into Australia.

1. Further, the weight of the pseudoephedrine was, on any view, substantial. There is no doubt that weight is a factor relevant to the sentence to be imposed for offending of this type (see Wong (supra) at [609]). In my view, there is merit in the Crown's submission that the fundamental relevance of the weight of the pseudoephedrine in the present case was increased by the fact that it was a matter which was directly within the applicant's knowledge.

1. Taking all of those matters into account, I am unable to accept the submission of counsel for the applicant that the starting point adopted by his Honour exceeded the bounds of proper sentencing discretion.

1. Further, I am not able to accept the submission of counsel for the applicant that the sentencing statistics and the accompanying synopses of what were said to be comparable cases support the proposition that the sentence imposed was manifestly excessive. There have been many statements, both by this Court and the High Court, which highlight the limited use to which statistical material can be put, and which warn of the obvious shortcomings in seeking to draw comparisons with sentences imposed in other cases of similar offending (see for example Han v R [2009] NSWCCA 300 per Campbell JA at [2] and Rothman J at [34]; R v Hili; R v Jones [2010] HCA 45; 242 CLR 520 at [53]-[56]). In the present case, the statistical sample is small, and the synopses of sentences imposed in other cases provide little or no information as to the particular circumstances of the offending. In particular, they provide no indication at all as to whether assistance to the authorities might have been a relevant factor, as it was in the present case. For those reasons, the material relied upon is of little assistance and does not, in my view, support the proposition that the sentence imposed is manifestly excessive.

1. Finally, the mere fact that a particular sentence might be the longest imposed for a particular type of offending does not, without more, establish manifest excess. There will always be a sentence which constitutes the longest sentence which has been imposed (see generally Jolly v R [2013] NSWCCA 76 at [75]). The submission that such a circumstance demonstrates the manifest excess of the applicant's sentence fails to have regard to the role he played and the weight of the substance which was imported.

1. For all of these reasons, this ground is not made out.

ORDERS

1. I propose the following orders:

(i)   Leave to appeal granted;

(ii)   Appeal dismissed.

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Decision last updated: 31 October 2013