GLO v The King - [2025] WASCA 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GLO -v- THE KING [2025] WASCA 49
CORAM:   QUINLAN CJ
MAZZA JA
HALL JA

HEARD:   24 JULY 2024
DELIVERED          :   8 APRIL 2025
FILE NO/S:   CACR 124 of 2023
BETWEEN:   GLO
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   CHRISTIAN DCJ
File Number            :   IND XXX of XXXX

Catchwords:

Criminal law - Appeal against sentence - Commonwealth drug offences - Importation of marketable quantity of border controlled drug (cocaine) - Whether discount for past cooperation manifestly inadequate - Whether sentencing judge erred when finding motivation for offending - Whether sentencing judge failed to have regard to mitigating factors - Whether sentencing judge erred in characterising appellant's role in offending - Whether sentence manifestly excessive

Legislation:

Crimes Act 1914 (Cth), s 16A(2)(h)
Criminal Code (Cth), s 307.2(1)

Result:

Leave to appeal on grounds 1 to 6 refused
Leave to appeal on ground 7 granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	G Janssen
Respondent	:	K Breckweg

Solicitors:

Appellant	:	Janssen + Maluga Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Browne v The State of Western Australia [2024] WASCA 162
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cappis v The Queen [2015] NSWCCA 138
Cressel v The Queen [2021] NSWCCA 26
DGF v The Queen [2021] WASCA 4
Director of Public Prosecutions (Cth) v Merrill (a pseudonym) [2015] VSCA 52
Director of Public Prosecutions (Vic) v Terrick [2009] VSCA 220; (2009) 24 VR 457
El‑Ghourani v The Queen [2009] NSWCCA 140; (2009) 195 A Crim R 208
Gaskell v The State of Western Australia [2018] WASCA 8
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147
Lau v The Queen [2011] VSCA 324
Le v The Queen [2006] NSWCCA 136
Martellotta v The Queen [2021] NSWCCA 168
Martinez v The Queen [2020] NSWCCA 250
Moore v The State of Western Australia [2006] WASCA 121
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
R v Gallagher (1991) 23 NSWLR 220
R v Gladkowski [2000] QCA 352; (2000) 115 A Crim R 446
R v Harris [2009] QCA 370
R v MHM [2023] WASCA 172
R v Ng [2012] WASCA 180
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
The State of Western Australia v Tran [2008] WASCA 183
Vagh v The State of Western Australia [2007] WASCA 17
Youssef v The Queen [2011] NSWCCA 104
ZZ v The Queen [2019] NSWCCA 286; (2019) 348 FLR 111

JUDGMENT OF THE COURT:

On 5 October 2023, the appellant was convicted on her plea of guilty of one count of importing a marketable quantity of a border controlled drug, namely 717.91 g of pure cocaine,[1] contrary to s 307.2(1) of the Criminal Code (Cth) (the Code). This offence carries a maximum penalty of 25 years' imprisonment, or a fine of $1.375 million, or both. She was sentenced in the District Court of Western Australia by Christian DCJ to 6 years 6 months' imprisonment with a non‑parole period of 4 years, backdated to commence on 11 February 2023. The sentencing proceedings took place in a closed court.
[1] A marketable quantity of cocaine is between 2 g and 2 kg. Item 43, sch 2 of the Criminal Code Regulations 2019 (Cth).
The appellant appeals to this court against her sentence on seven grounds, that will be detailed later in these reasons. The grounds include complaints that the sentencing judge gave a manifestly inadequate discount for the appellant's cooperation with the Australian Federal Police (AFP); misapprehended the appellant's role in the commission of the offence; failed to have regard to 'the underlying motive of the offence'; failed to have regard to the contents of a psychological report, which was said to be mitigatory; and that the sentence is manifestly excessive. The only arguable ground of appeal is that the sentence was manifestly excessive.
For the reasons that follow, we would dismiss the appeal. Some parts of these reasons have been put in a confidential addendum, the publication of which, in the interests of justice, will be limited.

The facts

The facts of the offending are not in dispute.
On 11 February 2023, the appellant arrived at Perth International Airport on board a flight from Singapore. Her journey had originated in Europe.
Australian Border Force (ABF) officers selected the appellant for a baggage examination. She appeared sweaty and unwell throughout the examination. When questioned by ABF officers, the appellant said that she had taken a diazepam tablet on the flight, and that she was internally concealing about 50 pellets containing cocaine.
The appellant was then taken under guard to Royal Perth Hospital (RPH), where she was admitted. There, she advised hospital staff that she had swallowed 100 pellets containing cocaine. She said that during the flight to Perth, she had excreted eight pellets, which she subsequently re‑swallowed.
While at RPH under guard, the appellant excreted a total of 124 pellets containing cocaine. Later forensic analysis revealed that the total weight of the powder contained in those pellets was 953.4 g, with a pure weight of cocaine of 717.91 g.
An examination of the appellant's mobile telephone revealed a chain of text messages between the appellant and the facilitator of the importation on the encrypted messenger application Signal (the text messages). The text messages commenced in October 2022 and showed the planning of the importation, including the appellant being approached by the facilitator to take part in the offence, the nature of the importation, and how the appellant should prepare to internally conceal the drugs. The text messages also showed that the appellant had been asked to recruit another to accompany her. Ultimately, this did not occur.
The text messages also revealed that the appellant had successfully negotiated a higher fee (from €15,000 to €20,000) to carry out the importation, because of the risks posed to her by importing drugs into Australia.
In order to effect the importation, the appellant first flew from a country in South East Asia (where she had been residing) to a European city. There, she met the facilitator, who provided her with 124 pellets containing cocaine and who told her how to swallow them.
On 14 February 2023, the appellant was interviewed by AFP officers under caution. By this time, the appellant had passed the pellets containing cocaine. In the course of the interview, she admitted knowing that each of the pellets contained approximately 8 g of cocaine. She said that she had intended to stay two nights at a hotel in Perth, after which another, or others, unknown to her would come to the hotel and collect the drugs. The appellant denied owing money to anyone, and denied feeling that she had been deceived into participating in the importation. A large proportion of the questions posed to her were the subject of 'no comment' answers, or answers to that effect, on the basis that she wished to take legal advice.

The appellant's personal circumstances

The appellant was 27 years old at the time of the offence and 28 years old at the time of sentencing. Prior to her arrival in Australia she had no criminal record, either in Australia or elsewhere.
The appellant was born in a country in Central Europe. She is the only child of parents who provided her with what appeared to be a stable upbringing, although they were strict and had very high expectations of her. She was described by the clinical psychologist who prepared a psychological report as having 'biographical wounds'.
After the appellant turned 18, her relationship with her parents broke down and she left home. She lived what her Honour described as 'a party lifestyle' in Spain, which included daily recreational drug use. She then moved to the United Kingdom and commenced a relationship with a drug dealer, and who verbally, physically, and emotionally abused her. Eventually, the appellant separated from him and returned to live with her parents. However, she later returned to Spain where she continued her illicit drug use. There, she incurred debts to local drug dealers.
The appellant left school in the Australian equivalent of year 11. She has mostly been gainfully employed and able to support herself except, at times, for the funding of her drug habit. At the time of the offence, she had apparently accrued a debt to drug dealers which the sentencing judge found to be about €10,000.[2]
[2] In her letter to the sentencing judge, the appellant claimed to have a debt of more than €15,000. The sentencing judge made findings that the debt was around €10,000. On appeal, the appellant referred to both amounts interchangeably.
Since learning of the appellant's offending, her parents have been supportive of her and the appellant has started to rebuild her relationship with them, despite her being in custody in Australia. Her prospects for rehabilitation are good.

Written materials provided to the sentencing judge

The sentencing judge was provided with various written materials submitted on behalf of the appellant.
The appellant wrote a letter to the sentencing judge in which she said that, at the time of the commission of the offence, she was deeply in debt and decided that 'doing this crime was my only choice to be financially free'. The appellant also said that her thinking at the time was 'compromised', as she had been in an abusive relationship for many years. She said that it had taken her imprisonment to help her clear her mind and realise that she wanted to change her life for the better. The appellant apologised for her offending. She said that while on remand she had been a model prisoner, engaged in work as a gardener, and participated in counselling.
The sentencing judge was also provided with a report by a clinical psychologist, Beant Peter Hergo, dated 26 September 2023. Mr Hergo conducted three telehealth sessions in German with the appellant. The bulk of the report is taken up with a detailed personal history as given to him by the appellant. The report does not purport to be a forensic psychological assessment of the appellant. It makes no reference to any psychological testing. Mr Hergo did not diagnose any psychological disorder or mental impairment.
Towards the end of the report, Mr Hergo observed that
[the appellant] presents as a person whose biography appears to show a quite common example of someone who, by trying to manage some biographical wounds, got drawn into the insidious underbelly of the … party scene, which could stand as an example of the many 'party scenes' which exist in our culture.
Mr Hergo then explained that the purpose of the report was to 'contextualise' the appellant's offending behaviour. He wrote:
In my professional view [the appellant] does not present as a usual criminal and although her actions present a significant violation of the law, this report makes the attempt to contextualise her behaviour and render it more as an act of desperation and helplessness rather than the premeditated, selfish account of a person who tries to profit from bringing a significant amount of a hard drug into Australia with the intention to capitalise and have an easy life. It further attempts to show how [the appellant's] behaviour was in a way a conclusive result of biographical experiences, resulting self‑beliefs, the attempt to manage the underlying trauma, pain, looming anxiety and eroding self‑doubt, which with a lack of self‑knowledge resulted [in] bad choice making and paradoxically led her into a situation where all her fears she tried to keep at bay became reality.
The sentencing judge also received a letter of support by a prison chaplain, in which the author wrote of the appellant's expressions of remorse and noted that she would serve her sentence in a foreign country in which she had no family or friends who could offer local support.

Appellant's past cooperation under s 16A(2)(h) of the Crimes Act 1914 (Cth)

Under s 16A(2)(h) of the Crimes Act 1914 (Cth), a court sentencing an offender for a federal offence must take into account, where relevant, the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences.
In the present case, the appellant cooperated with police at the time of, and following, her arrest. The sentencing judge said that she was satisfied that the appellant had provided 'low‑level cooperation', which her Honour took into account as a mitigating factor.
The precise details of the appellant's past cooperation are contained in the confidential addendum to these reasons. They include a letter of assistance written by an AFP officer and a memorandum signed by the sentencing judge.

The sentencing proceedings

The Crown's sentencing submissions

At sentencing, the Crown submitted that, in all of the circumstances, the only appropriate sentence was a term of immediate imprisonment. The Crown submitted that the appellant played an essential role in the importation of the cocaine. While the appellant might properly be described as a courier, her offending had the following serious features:
(a)As the text messages between the appellant and the facilitator showed, the offence involved extensive premeditation and planning.
(b)The appellant travelled to the European city from which she later embarked to collect the cocaine for the purpose of importing it into Australia.
(c)Significant efforts were made to conceal the drug. The pellets were individually wrapped and the appellant swallowed them over multiple days.
(d)The appellant was the person who actually carried out the importation of the drug by travelling to Australia, carrying the pellets internally. The plan was for the pellets to be excreted after her arrival into Australia, and then handed to an unknown third party for distribution.
(e)The appellant committed the offence for profit.
(f)The quantity of cocaine imported by the appellant was substantial.
The Crown submitted that, although the appellant's plea of guilty was a significant mitigating factor, its entry was in 'recognition of the inevitable', considering the strength of the case against her. The Crown also acknowledged the appellant's prior good character, but submitted that, in the circumstances of the case, this factor deserved little weight.
The Crown accepted that the appellant had cooperated with the ABF when selected for a baggage search at Perth Airport, made full admissions to the AFP, and had provided cooperation to the AFP. The Crown accepted that this cooperation should be afforded 'some weight in mitigation', but was to be balanced against the objective seriousness and other relevant circumstances of the offending.

The defence sentencing submissions

On behalf of the appellant, it was submitted that the appellant should be placed on a recognisance release order.
The appellant took issue with the Crown's submissions as to the seriousness of the offending. In essence, it was submitted that the appellant was a courier who was motivated not by profit, but by a desire to receive enough money to release her from her drug debts when she returned to Europe. Defence counsel emphasised the appellant's early plea of guilty; favourable personal circumstances; cooperation with law enforcement authorities; remorse; favourable prospects of rehabilitation; and the fact that she would have to serve any sentence of immediate imprisonment in a foreign country away from support systems. The appellant's counsel contended that, having regard to the combined force of all of these mitigating circumstances, a recognisance release order, and not a term of immediate imprisonment, was the appropriate sentence to be imposed upon the appellant.

The sentencing remarks

The sentencing judge accurately set out the facts of the appellant's offending and her personal circumstances. Her Honour noted that the appellant had incurred a significant drug debt. She referred to Mr Hergo's psychological report. Her Honour acknowledged that the report set out the appellant's personal background and psychological issues, but stated that there was nothing in the report that provided mitigation.
The sentencing judge identified the following mitigating factors:
(1)The appellant's early plea of guilty, which her Honour said 'demonstrates an acceptance of responsibility and a willingness to facilitate the course of justice. It has utilitarian value'. Although her Honour was not bound to do so under federal sentencing law, she specified a 20% discount for the plea of guilty.
(2)The appellant was genuinely remorseful.
(3)The appellant was a person of prior good character.
(4)Imprisonment for the appellant would be more onerous by reason of being incarcerated in a foreign country, where no family or friends live.
(5)The appellant had cooperated with ABF officers at Perth International Airport by revealing that she was concealing drugs internally.
(6)The appellant had cooperated with the AFP after her arrest.
As to the appellant's past cooperation, unlike the reduction for the plea of guilty, her Honour did not specify the deduction she gave for this factor as a percentage. Her Honour said:
I have had regard to the cooperation, the other cooperation you have provided. I am satisfied that it is of a low‑level cooperation, and I take that into account as a mitigating factor. I have not attempted to put a figure on the value of that, and that is partly because that needs to be weighed up in the context of also giving you credit for your remorse, and your cooperation in relation to the circumstances of your offending.
In the sentencing remarks, her Honour described the appellant's role in the importation of the cocaine as that of a courier, but emphasised that the attribution of such a label was to be considered in the context of what the appellant actually did.
The sentencing judge said that the appellant's role in the importation was 'crucial'. The offence involved planning and preparation on the appellant's part. Her Honour found that the appellant was prepared to involve herself in the importation of drugs, in circumstances where she knew she was carrying an illegal drug into Australia, and with the intention that it would be handed to others for distribution into the community. Because the appellant was required to swallow the pellets, she was aware of the weight of the drug.
Her Honour found that the appellant stood to make significant financial gain from the importation, and found that money was the appellant's 'sole motivation for the offending'. Her Honour said that the appellant had 'succumbed to the temptation to lighten [her] financial burden by gaining money from this illegal activity, and [that] there was clearly an element of commerciality'. The sentencing judge observed that the appellant imported a considerable amount of cocaine, and that while the weight of the drug was not a determinative sentencing factor, it was a relevant sentencing consideration. The sentencing judge noted that the cocaine had a potential value of between $225,000 and $300,000.
The sentencing judge properly observed that general deterrence was an important sentencing consideration. Her Honour stated that she considered the need for personal deterrence was reduced, because her Honour was satisfied that the appellant was unlikely to import drugs again, and that the appellant had taken steps towards her rehabilitation.
With regard to the non‑parole period, her Honour said:
I'm also required to set a non‑parole period which should be the minimum that I determine justice requires that you serve, having regard to all the circumstances of the offending, to mitigate the punishment in favour of rehabilitation, through conditional freedom where appropriate once you have served the minimum term that I specify.
In setting the non‑parole period I have to consider the seriousness of the offence, the prospect of rehabilitation, the need to ensure the sentence reflects the criminality involved, and that there is no set percentage that the non‑parole has to be in relation to the head sentence.

Her Honour explained her treatment of the appellant's past cooperation in a document, which is set out in the confidential addendum to these reasons.

The grounds of appeal

The grounds of appeal as expressed in the amended appellant's case are:
1.The Learned Sentencing Judge erred in fact by allowing a manifestly inadequate discount for the Appellant's cooperation with the AFP.
2.The Learned Sentencing Judge erred in law by allowing a manifestly inadequate discount for the Appellant's cooperation with the AFP.
3.The Learned Sentencing Judge erred in fact in that she failed to differentiate the underlying motive of the offence.
4.The Learned Sentencing Judge erred in fact in that she failed to take cognizance that the contents in the psychological report contained information that support mitigating.
5.The Learned Sentencing Judge erred in fact in that she adopted contradictory positions in sentencing the Appellant.
6.The Learned Sentencing Judge erred in fact as to the nature of the Appellant's position in the drug hierarchy, her role, and risks within the offence's commission.
7.The Learned Sentencing Judge erred in law and fact in imposing a manifestly excessive sentence on the Appellant.
Grounds 1 to 6 appear to allege express errors by the learned sentencing judge. Ground 7 alleges an implied error by her Honour.
At the hearing of the appeal, counsel for the appellant made oral submissions only in respect of grounds 1 and 2, and sought to rely on the appellant's written submissions for the remaining grounds.[3]
[3] Appeal ts 20.

Grounds 1 and 2 - alleged weighting errors

As drafted, grounds 1 and 2, when taken together, merely allege a weighting error. Although the phrase 'manifestly inadequate' is usually used to allege an implied error, that cannot be the case here as the discount for past cooperation was not quantified. Neither ground alleges that the sentencing judge failed to take into account the appellant's past cooperation with the AFP. Such an allegation, had it been made, would have failed because her Honour expressly stated that the appellant's past cooperation was a mitigating factor.
It is well established that a proposition that too little (or too much) weight has been given to a sentencing factor is not generally a valid ground of appeal. See Vagh v The State of Western Australia[4] and Director of Public Prosecutions (Vic) v Terrick.[5] As drafted and addressed in the written submissions, the grounds could not succeed, although the appellant's past cooperation is relevant to the outcome of ground 7.
[4] Vagh v The State of Western Australia [2007] WASCA 17 [76].
[5] Director of Public Prosecutions (Vic) v Terrick [2009] VSCA 220; (2009) 24 VR 457 [5].
However, at the hearing of the appeal, counsel for the appellant made submissions purportedly in support of grounds 1 and 2, but which alleged a miscarriage of justice of a kind quite different to that expressed in the grounds themselves. Counsel alleged that, in the present case, the sentencing judge was obliged to conduct an enquiry of her own as to the accuracy of the AFP's assessment of the risk posed to the appellant arising from her cooperation.[6] Counsel for the respondent was able to deal with these submissions in oral argument. It is not necessary to set out the respondent's submissions.
[6] Appeal ts 18 - 20.
The appellant's submissions proceeded in this way. The appellant provided past cooperation to the AFP, including by identifying the facilitator of the offence. Counsel for the appellant explained that, despite his efforts, he had been unable to ascertain whether this person had been charged with any offence in any foreign jurisdiction. He submitted, in effect, that while the appellant was considered to be at a low risk of harm in Australia (a finding he did not appear to challenge), there was likely to be a serious risk to her safety upon her return to Europe after the service of her sentence. While counsel for the appellant did not submit that the information provided to the sentencing judge in the letter of assistance about the appellant's risk was incorrect, it was submitted that it was incomplete. Accordingly, counsel contended that her Honour was obliged to undertake an enquiry of her own about whether the facilitator had been apprehended by law enforcement authorities in Europe, and as to the risk posed to the appellant after her sentence in Australia was completed and she subsequently returned to Europe.
Counsel for the appellant accepted that he had not been able to find any authority to support whether the sentencing judge had the power to undertake such an enquiry and, if so, in what circumstances.

Grounds 1 and 2 - disposition

The appellant's submissions as set out above cannot be accepted.
Because an offender may not be in possession of all information relevant to an assessment of the value of an offender's cooperation,[7] we accept that law enforcement agencies are obliged to provide a sentencing judge with disclosure of all relevant information concerning an offender's cooperation. However, there is no obligation on a sentencing judge to conduct the kind of enquiry now urged by the appellant. We say 'now' because, in this case, no request was made by counsel for the appellant at the sentencing hearing to conduct such an enquiry.
[7] MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [15].
It is open to a sentencing judge to seek further information from the prosecution or request that the prosecution obtain from law enforcement agencies information concerning an offender's cooperation. Indeed, a sentencing judge may adjourn sentencing proceedings in order to receive such information. The appellant, through her counsel, did not request the sentencing judge to adopt this course.
The information put before the sentencing judge made no comment about the risk the appellant faced when she returned to Europe. Based on the information before the sentencing judge, it appeared that no charges had been laid against the facilitator. Had such charges been laid, one would have expected that the AFP would have been notified and, indeed, some approach would have been made to the appellant to provide further information or even to provide evidence against the facilitator. The degree to which the appellant in this case is at risk of reprisal upon her return to Europe is a matter of pure speculation.
Counsel for the appellant's submissions in support of the proposition that the sentencing judge should have conducted an enquiry of her own were pitched at a very general level. The source of power to embark upon such an enquiry was not identified. Nor was it suggested how the enquiry should be conducted, who would be called to give evidence, and, importantly, what outcome would likely be achieved.
More fundamentally, sentencing proceedings are adversarial, and not inquisitorial. While a sentencing judge may, as mentioned above, request information, and adjourn sentencing proceedings to enable that information to be provided to the court, this does not extend to a sentencing judge becoming an inquisitor and conducting their own investigation. Even if a sentencer had the power to embark upon such an enquiry, the circumstances of this case would not warrant it.
The submissions made on behalf of the appellant, to the effect that her Honour should have conducted her own enquiry to determine whether the AFP's risk assessment of the appellant is accurate, have no merit and must be rejected.
Before leaving grounds 1 and 2, we note that, in the course of oral submissions, counsel for the appellant suggested that the sentencing judge did not determine for herself the nature and extent of the discount to be given for the appellant's cooperation. Rather, she merely accepted the AFP's assessment of the appellant's cooperation. Upon an examination of the record of the sentencing proceedings, including the materials in the confidential memorandum, there is no merit in counsel's suggestion.
Leave to appeal should be refused in respect of grounds 1 and 2.

Ground 3 - the 'underlying motive'

Ground 3 does not clearly articulate the error allegedly made by the sentencing judge. The ground appears to be an attack on her Honour's findings referred to in [37] above, that there was an element of commerciality in the appellant's offending and that money was the appellant's 'sole motivation for the offending'.
The appellant accepts that she agreed to be paid €20,000 for importing the cocaine into Australia. Notwithstanding this, she submits that the underlying motive for offending was a desire to use the money to earn 'her freedom from the controlling world of drugs she had become trapped in' as opposed to 'pure financial gain'. The implication of the ground, and the submissions in support of it, is that the asserted 'underlying motive' for committing the offence was mitigating. We do not accept this proposition.
It is well established that participation in the importation of a border controlled drug for financial gain explained by an offender's vulnerability, including where an offender intends to pay off a drug debt, is ordinarily not mitigating. See, for example, Le v The Queen.[8] To do so would undermine the sentencing objective of deterrence, both personal and general.
[8] Le v The Queen [2006] NSWCCA 136 [32].
The sentencing judge did not err in making the findings she did about the appellant's financial motivation for committing the offence. The appellant negotiated a fee of €20,000 for importing the cocaine into Australia. Even if the money was to be used wholly or partly to repay the drug debts incurred by the appellant, it does not detract from the fact that the appellant's offending was financially motivated. In any event, the fee the appellant negotiated exceeded the drug debt apparently owed by the appellant.
Further, the text messages found on the appellant's mobile telephone give no indication of any desire on the part of the appellant to pay off any drug debt, or to free herself from her addiction or her lifestyle.
Leave to appeal should be refused in respect of ground 3.

Ground 4 - the psychological report

Ground 4 is a complaint that the sentencing judge failed to have proper regard to mitigating factors evident in the psychological report of Mr Hergo. There is no merit in this ground.
We have already summarised the effect of Mr Hergo's psychological report and her Honour's findings in respect of it at [20] ‑ [22] and [32].
The written submissions in support of ground 4 suggest that Mr Hergo's report revealed a degree of childhood trauma suffered by the appellant sufficient to invoke the principles described by the High Court in Bugmy v The Queen.[9]
[9] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. See also the discussion of these principles in Browne v The State of Western Australia [2024] WASCA 162.
Mr Hergo's report provided the sentencing judge with a very detailed biographical account of the appellant's life, including describing psychological difficulties faced by the appellant. However, the report provides no basis upon which to invoke the Bugmy principles or, for that matter, the well‑known legal principles concerning mental impairment described in such cases as R v Verdins.[10] As the respondent correctly contended in its written submissions, there is nothing in the appellant's childhood which rises to anywhere near the level of that required to invoke the Bugmy principles.
[10] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
It is apparent from the circumstances surrounding the commission of the offence that the appellant made a considered and deliberate choice to import the cocaine into Australia. She did so appreciating the risk. The offending was plainly motivated by financial reward and her offending was not impulsive, but planned.
Leave to appeal should be refused in respect of ground 4.

Ground 5 - the so‑called 'contradictory positions in sentencing' adopted by the sentencing judge

As expressed, this ground is difficult to understand without reference to the appellant's written submissions. The written submissions assert that the learned sentencing judge's decision to close the court during the sentencing proceedings was ultimately inconsistent with her Honour's findings that the appellant's cooperation exposed her to a low level of risk.
The sentencing judge's decision to close the court was done in the interests of justice, at the request of defence counsel, and with the consent of the parties, having regard to the fact that the appellant had cooperated with the AFP. The order was made for the appellant's benefit at the outset of the proceedings, and before her Honour had the opportunity of hearing the parties' submissions in connection with the appellant's cooperation and determining the issue for the purposes of sentencing.
There is nothing contradictory about her Honour's conduct in closing the court and then subsequently finding that the cooperation given by the appellant, or any risk of harm as a result of giving cooperation, was of a low level.
Leave to appeal in respect of ground 5 should be refused.

Ground 6 - alleged error as to the appellant's role in the commission of the offence

Ground 6 asserts that the learned sentencing judge erred 'as to the nature of the appellant's position in the drug hierarchy, her role, and risks within the offence's commission'. The written submissions in support of the ground of appeal are more argumentative than analytical.
Taking the written submissions at their highest, it appears that the appellant asserts that the learned sentencing judge:
(a)failed to appreciate the legal and physical risk the appellant subjected herself to by internally carrying the pellets of cocaine;
(b)failed to find that the appellant's role in the commission of the offence 'was of the lowest kind of courier'; and
(c)failed to find that although the appellant negotiated the amount she was to be paid to import the cocaine into Australia, the amount was not commensurate with the risk and was negotiated by the appellant 'to ensure that she could cover her debt payments'.
It appears that the errors as alleged by the appellant were errors of omission, rather than any express error of fact.
The sentencing judge described the appellant's role in the importation of the cocaine as that of a courier, and also went on to describe in detail what the appellant actually did. The sentencing judge's findings in this regard are set out in [35] ‑ [37] above. The submissions made on behalf of the appellant in support of this ground do not grapple with the findings actually made by her Honour.
As we have already said, the admitted facts and the text messages taken from the appellant's mobile telephone show that the appellant made a considered and deliberate choice to involve herself in the importation of the cocaine into Australia. The text messages show that from the outset she was well aware that the plan required her to swallow and conceal the cocaine internally. The legal and physical health risks involved in such a method of concealment are obvious. Despite these risks the appellant committed the offence. The appellant negotiated a higher fee for her services to take into account the risk of detection in Australia. That risk eventuated. While in hindsight, the appellant appreciates that the fee was not worth the risk, that was not her thinking at the time she agreed to commit and when she committed the offence.
The appellant's role in the commission of the offence could not reasonably be categorised as being 'of the lowest kind of courier'. Her Honour noted that the appellant made significant efforts to conceal the drugs and, before beginning her trip to Australia, practised swallowing objects of a similar size and shape to the pellets of cocaine. The appellant swallowed the pellets of cocaine over a number of days before her departure. She knew the precise nature of the border controlled drug she swallowed and its quantity. The text messages do not reveal any reluctance on the appellant's part to engage in the offence.
There is nothing in the sentencing remarks which indicate that the sentencing judge failed to take into account any relevant circumstance in connection with the role the appellant played in the commission of the offence, or erred in her appreciation of that role. Ground 6 has no merit and leave to appeal should be refused in respect of it.
Finally, we turn to ground 7.

Ground 7 - manifest excess

The appellant's submissions

In submitting that the sentence imposed upon the appellant of 6 years 6 months' imprisonment with a non‑parole period of 4 years was manifestly excessive, the appellant emphasised the combined effect of the mitigating factors, especially the appellant's past cooperation and plea of guilty. The appellant submitted that the sentence imposed upon her was inconsistent with the outcomes in ZZ v The Queen;[11] Martinez v The Queen;[12] Cressel v The Queen;[13] and Martellotta v The Queen.[14] The appellant also referred to a media report of a first instance sentencing in the District Court of Western Australia on 15 December 2023. As first instance sentences have no precedential value, the outcome in that case may immediately be put to one side.

The respondent's submissions

[11] ZZ v The Queen [2019] NSWCCA 286; (2019) 348 FLR 111.

[12] Martinez v The Queen [2020] NSWCCA 250.

[13] Cressel v The Queen [2021] NSWCCA 26.

[14] Martellotta v The Queen [2021] NSWCCA 168.

The respondent submitted that, having regard to the undeniably serious nature of the offence committed by the appellant, and notwithstanding the mitigating factors, including the appellant's cooperation, the sentence imposed upon the appellant was not manifestly excessive. The respondent cited El‑Ghourani v The Queen;[15] R v Harris;[16] Youssef v The Queen;[17] Lau v The Queen;[18] Director of Public Prosecutions (Cth) v Merrill (a pseudonym);[19] and Cappis v The Queen[20] to support the contention that the sentence was not manifestly excessive.
[15] El‑Ghourani v The Queen [2009] NSWCCA 140; (2009) 195 A Crim R 208.
[16] R v Harris [2009] QCA 370.
[17] Youssef v The Queen [2011] NSWCCA 104.
[18] Lau v The Queen [2011] VSCA 324.
[19] Director of Public Prosecutions (Cth) v Merrill (a pseudonym) [2015] VSCA 52.
[20] Cappis v The Queen [2015] NSWCCA 138.

Ground 7 - legal principles

The legal framework necessary to decide ground 7 requires a consideration of the general principles applicable to an allegation of implied error, the sentencing of federal offenders for drug trafficking offences, and offenders who provide past cooperation to law enforcement agencies. All of these principles were comprehensively described by this court in the recent case of DGF.[21] Most of what follows is taken from this statement of principles.
[21] DGF v The Queen [2021] WASCA 4 [31] - [66].
Sentencing is a discretionary exercise. That discretion is of fundamental importance. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. An appellate court can intervene only if the appellant demonstrates either an express or implied material error.
A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error.
In determining whether a sentence for an individual offence is manifestly excessive, the sentence should be viewed in light of:
(a)the maximum penalty for the offence;
(b)the standards of sentencing customarily imposed with respect to the offence;
(c)the place that the criminal conduct occupies on the scale of seriousness of offences of that type; and
(d)the offender's personal circumstances.
The range of sentences customarily imposed for an offence does not establish the range of a sound exercise of the sentencing discretion in a particular case. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

When an appellate court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not, of itself, fix the upper or lower limit of the range.
The general sentencing principles applicable to federal offences are set out in div 2 of pt 1B of the Crimes Act. Among other things:
1.By s 16A(1), in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
2.By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court.
Subject to limited statutory exceptions, s 16A requires an instinctive synthesis of the relevant and known considerations.
Section 16A of the Crimes Act accommodates the application of common law sentencing principles. For example, the totality principle is accommodated in s 16A even though it is not specifically referred to. However, s 16A does not permit generalisations to be made across all forms of federal offences about how individual sentences are to be fixed.[22]
[22] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [18], [56].
The well‑known sentencing considerations for federal drug offences were outlined by Buss JA in R v Ng:[23]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
[23] R v Ng [2012] WASCA 180 [34].
The reference to the nature and level of the offender's participation in drug dealing within a particular organisation requires additional elaboration. This court has emphasised that it is important to recognise that the characterisation of the offender's role, where possible, must not obscure an assessment of what the offender did.[24] An offender is sentenced not for his or her role or place in a hierarchy but for a particular dealing with a particular drug at a particular time.[25]
[24] Gaskell v The State of Western Australia [2018] WASCA 8 [129]; HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147 [39].
[25] Moore v The State of Western Australia [2006] WASCA 121 [17].
Two of the factors required to be taken into account in s 16A(2) of the Crimes Act are:
(g)if the person has pleaded guilty to the charge in respect of the offence:
(i)that fact; and
(ii)the timing of the plea; and
(iii)the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;
(h)the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences[.]
Past cooperation within s 16A(2)(h) may include one or both of self‑incrimination or the incrimination of others.[26] It could extend to useful information or assistance to a law enforcement agency of any kind. Cooperation of this kind may benefit the community at large but, excluding cases of self-incrimination, may place the cooperating offender in a position of danger or hardship. The public interest served by s 16A(2)(h) is to encourage offenders to cooperate with law enforcement agencies. Thus this sentencing factor is engaged even if the cooperation does not demonstrate contrition or remorse[27] - that, in any case, being separately provided for under s 16A(2)(f).
[26] R v Gladkowski [2000] QCA 352; (2000) 115 A Crim R 446 [11].
[27] See, by analogy, The State of Western Australia v Tran [2008] WASCA 183 [12].
It should be recognised that the benefits of the public policy evinced by s 16A(2)(h) are unlikely to ensue without substantial inducement by way of discount to the sentence that would otherwise be appropriate. A substantial discount must be given and be seen to be given where an offender provides substantial and valuable cooperation to law enforcement authorities thereby putting himself or herself at risk or causing himself or herself hardship.[28]
[28] Gladkowski [7]. See also Tran [12], [75].
The weight to be given to past cooperation must be determined in the exercise of discretion having regard to all of the circumstances of the individual case. Factors to be taken into account include:
1.The nature and extent of the cooperation - a consideration which might, in an appropriate case, encompass both quantitative and qualitative matters; for example, as to the latter, the accuracy, reliability and timeliness of any information provided by the offender.
2.Whether the cooperation is genuine; for example, information which is knowingly false could attract no discount.
3.Whether the offender discloses all that he or she knows - full and frank assistance will ordinarily result in a more substantial discount than partial assistance.
4.The benefit that has resulted or is expected to result from the cooperation - ordinarily the more useful or potentially useful the information or assistance the greater the discount.
5.The risk or danger of retributive violence to the offender or the offender's family.
6.Hardship which the offender may be placed in or may undergo as a result of cooperation; for example, whether the offender may have to serve his or her sentence in more onerous conditions than the general prison population because he or she will be in some form of protective custody.
The sentencing judge must ensure that any reduction does not result in a sentence that is an affront to community standards[29] (understood in light of the public interest that informs s 16A(2)(h) of the Crimes Act). The overriding statutory imperative is that the sentencing judge must impose a sentence that is of a severity appropriate in all the circumstances of the offence.[30] Accordingly, any discount so as to take into account a matter of past cooperation within s 16A(2)(h) cannot result in a sentence which is not of a severity appropriate in all the circumstances of the offence, in terms of s 16A(1).
[29] R v Gallagher (1991) 23 NSWLR 220, 232; Gladkowski [9]. See also, by analogy given that it concerns sentencing for a state offence in New South Wales, SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 [4] - [5].
[30] Crimes Act s 16A(1).
As already stated the sentencing judge is not required to quantify a specific discount for past cooperation and may simply take the extent of past cooperation into account as part of the instinctive synthesis of all relevant matters.

Ground 7 - disposition

In our opinion, the sentence imposed by the learned sentencing judge was not manifestly excessive.
As already mentioned, the maximum penalty for the offence is 25 years' imprisonment, or a fine of $1.35 million, or both. It is a substantial maximum penalty which reflects Parliament's view of the seriousness of the offence.
It is clear from the sentencing judge's unchallenged findings as to the serious features of the offence that this was a serious offence of its kind.
Several months prior to the commission of the offence, the appellant willingly agreed to undertake the crucial role of internally carrying the cocaine into Australia. By the time of the commission of the offence, she knew the value and weight of what she was carrying. She appreciated the increased risks of being caught in Australia. She committed the offence for substantial commercial benefit. As explained, it does not matter that a portion of the fee she negotiated would have been used to pay off her drug debt. In any event, a significant portion of the fee did not relate to any such debt. The appellant prepared for the offence and began swallowing the pellets several days before her departure.
This was not a case of a youthful, naïve, impoverished courier acting on the spur of the moment for minimal commercial gain. The appellant's offending is of an entirely different and more serious character. The label placed on her role by her counsel in this appeal of a 'mere courier' substantially underplays what she actually did.
While we accept that the appellant was not the ultimate organiser of the offence and was not to be involved in the distribution or sale of the cocaine in Australia, it cannot be overlooked that she imported a substantial quantity of a harmful drug which she intended to pass on to others for sale in Australia. It is because of the harmful nature of the drug that general deterrence is the dominant sentencing consideration. It must be expected that in cases such as this, a lengthy term of immediate imprisonment will be imposed.
There were a number of mitigating factors. These factors were identified by the sentencing judge and were plainly taken into account. The most significant of them are the plea of guilty and the appellant's past cooperation.
The appellant's plea of guilty was entered early in the proceedings. Although the case against her was overwhelming, the plea, and its timing, resulted in benefits to the community from the saving of considerable resources which would have had to have been allocated to a trial. The plea of guilty was also a sign of contrition and remorse (see s 16A(2)(f)(ii) of the Crimes Act). The appellant does not suggest, and could not credibly suggest, that the 20% reduction for the plea of guilty was, in any way, inadequate.
As to the appellant's past cooperation, the appellant admitted that she was carrying the pellets of cocaine to ABF officers at the airport after she had been observed to be sweaty and unwell. Later, she was interviewed by AFP agents and made some admissions. Later still, she provided the information contained in the confidential addendum to these reasons. The outcome of that cooperation is also described in the confidential addendum.
The personal risk to the appellant as a result of providing the cooperation was assessed by the AFP as being low. There is no reason to believe that while the appellant is in Australia, this assessment is inaccurate. As to what may happen to the appellant upon her release, that is a matter of pure speculation.
We accept that the appellant's cooperation was genuine and was as complete as she was able to provide. Some of the material was evident from the text messages law enforcement agencies obtained from the appellant's mobile telephone, and from information provided by the appellant in her interview with the AFP.
It is apparent from the sentencing remarks that her Honour regarded the mitigation to be afforded to the appellant for her past cooperation overlapped, to some extent, with her genuine remorse.
The sentencing judge gave what she described as 'a small discount' for the appellant's past cooperation. Her Honour did not express that discount as a percentage, nor was she obliged to do so. In context, we take the sentencing judge's assessment of 'a small discount' to refer to the reduction she gave to reflect the public policy of encouraging offenders to cooperate with law enforcement agencies. It appears that the other benefits which accrue from past cooperation were adequately taken into account in her Honour's assessment of the appellant's contrition and remorse, as well as the plea of guilty.
Other sentencing judges may have taken a different approach and specified a discount for the appellant's past cooperation. This approach has the advantage of transparency, but failure to adopt it is not erroneous and does not indicate, in itself, implied error. In the end, implied error is to be assessed having regard to all of the factors referred to at [87] above.
We have had regard to the comparable cases cited by the parties in respect of this ground. In addition, we have had regard to the outcome in R v MHM.[31]
[31] R v MHM [2023] WASCA 172.
Of the cases cited by the appellant, Martinez and Martellotta concern the more serious offence of importing a commercial quantity of a border controlled drug. This offence carries a maximum penalty of life imprisonment. We infer that the argument being put by the appellant is that the sentence imposed upon her was more like the sentences imposed for the more serious offence. Of the cases cited by the parties, only in ZZ did the offender cooperate with law enforcement authorities, although some of the cases referred to in a table attached to the reasons in Lau involved offenders who provided cooperation. The offender in MHM also provided cooperation to law enforcement authorities.
All the cases cited by the respondent concern offenders who were convicted of offences relating to a marketable quantity of a border controlled drug.
It is unnecessary to analyse each and every case cited by the parties. Unsurprisingly, there is a considerable variation in the facts of the offending in the cited cases, the moral culpability of the offenders, and their personal circumstances. No clear tariff emerges for offences of the kind committed by the appellant. In the end, each case must be decided on its own facts and circumstances. While comparable cases (where they exist) must be considered for consistency's sake, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. As we have said, it is consistency in the application of principle that is important.
In our opinion, the comparable cases cited do not clearly point to the sentence imposed in the present case being manifestly excessive.
The ultimate question to be answered is whether the sentence of 6 years 6 months' imprisonment with a non‑parole period of 4 years was a proper exercise of the sentencing discretion. Some sentencing judges might have imposed a slightly lesser sentence, attaching more weight to the appellant's cooperation. However, the appellant's offending in this case was undoubtedly very serious for the reasons that have been given.
When all of the relevant facts and circumstances are considered, and bearing in mind all of the mitigating factors, including the appellant's plea of guilty, past cooperation and remorse, we are not satisfied that the sentence (including the length of the non‑parole period) imposed upon the appellant was outside the range of sentences reasonably open to the sentencing judge. Implied error has not been demonstrated. The sentence that was imposed was not unreasonable or plainly unjust. The allegation of manifest excess has not been made out. Although we would grant leave to appeal in respect of ground 7, it has not been made out.

Outcome and orders

None of the grounds of appeal have been made out. The appeal against sentence must be dismissed. The orders that we would make are as follows:
1.Leave to appeal is refused in respect of grounds 1 to 6.
2.Leave to appeal is granted on ground 7.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
8 APRIL 2025