Green (a pseudonym) v The King

[2025] NSWCCA 16

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Green (a pseudonym) v R [2025] NSWCCA 16

Hearing dates:

7 February 2025

Date of orders:

10 February 2025

Decision date:

19 February 2025

Before:

Adamson JA; Ball JA; Fagan J

Decision:

(1)   Leave granted to file a notice of appeal out of time.

(2)   Leave granted to appeal against sentence.

(3)   The appeal is upheld on grounds 1 and 2.

(4)   The sentence passed on 4 June 2015 by Acting Judge Madgwick QC is quashed and in lieu thereof the applicant is sentenced to 20 years imprisonment commencing from 3 December 2012 and expiring on 2 December 2032 with a non-parole period of 12 years expiring on 2 December 2024.

(5)   The applicant is eligible for release on parole from 2 December 2024.

Catchwords:

SENTENCING — appeal against sentence — general principles — instinctive synthesis — where sentencing judge failed to adopt the ‘instinctive synthesis’ approach to sentencing

SENTENCING — appeal against sentence — where applicant sentenced in 2015 — extension of time to appeal — not opposed

SENTENCING — relevant factors on sentence — objective seriousness — parity — hardship to applicant’s family

SENTENCING — relevant factors on sentence — discount on sentence — plea of guilty — cooperation with law enforcement agencies in the investigation of the offence

Legislation Cited:

Crimes Act 1914 (Cth), ss 16A, 16AC

Criminal Appeal Act 1912 (NSW), s 6

Criminal Code (Cth), ss 11.5, 307.1, 307.5

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases Cited:

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

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

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

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Daniel Green (a pseudonym) (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
A Williams (Respondent)

Solicitors:
Zreika and Associates (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s):

2012/379785

Publication restriction:

The applicant and co-offenders are identified by pseudonyms.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

4 June 2015

Before:

Madgwick QC ADCJ

File Number(s):

2012/379785

HEADNOTE

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

Daniel Green (a pseudonym) (the applicant) sought leave to appeal against his sentence of 21 years, commencing 3 December 2012 and expiring 2 December 2033, with a non-parole period of 12 years and 6 months for conspiring to import a border controlled drug, cocaine, in a commercial quantity contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth).

In late 2012, the applicant and three co-accused conspired to import a consignment of 900 cartons of wine, containing about 123kg of pure cocaine dissolved in an aqueous ethanol solution, into Australia from South America. Upon its arrival in Australia on 14 September 2012, the consignment was intercepted, seized and reconstructed by the Australian Federal Police. Surveillance continued for 10 weeks. On 3 December 2012, the applicant was arrested, but was released upon agreeing to help obtain further evidence against his co-conspirators, who were arrested on 5 and 6 December 2012. The trial commenced on 14 October 2014. On 28 November 2014, at the conclusion of the Crown case, the applicant changed his plea to guilty.

Simon Smith (Smith), the co-conspirator accepted to be most relevant to the applicant for the purposes of parity, was sentenced to a term of imprisonment of 26 years, commencing 5 December 2012 and expiring on 4 December 2038, with a non-parole period of 17 years.

The applicant appeals his sentence on three grounds:

1. the trial judge erred in failing to adopt the ‘instinctive synthesis’ approach to the sentencing exercise (ground 1).

2. the trial judge erred in failing to take into account hardship to the applicant’s family in the sentencing exercise (ground 2).

3. the applicant has a justified sense of grievance by reason of his sentence and the sentence imposed on the co-offender, Smith (ground 3).

The Crown accepted that ground 1 was made out, and that, accordingly, it was necessary for this Court to re-sentence the applicant unless satisfied that no lesser sentence was warranted. The Crown accepted that, in light of this Court’s subsequent decision in Totaan v R (2022) 108 NSWLR 17; (2022) NSWCCA 75, the trial judge’s failure to directly take into account hardship to the applicant’s family because it was not exceptional was erroneous.

The applicant also sought an extension of time for leave to appeal, pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), which was not opposed.

The Court held (Adamson JA, Ball JA and Fagan J), granting leave to file a notice of appeal out of time, granting leave to appeal against sentence, and upholding the appeal on grounds 1 and 2:

Ground 1: failure to adopt the ‘instinctive synthesis’ approach in sentencing

1. The correct approach is for sentencing judges to take all relevant objective and subjective matters into account by a process of “instinctive synthesis”, save those matters, such as discounts for a plea of guilty and assistance to authorities, which are to be separately quantified after a starting figure has been identified. The sentencing judge was in error in adopting a two-tier approach whereby a starting figure was arrived at based only on objective factors.

   Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied.

Ground 2: failure to take into account the effect of the sentence upon the applicant’s family

1. The sentencing judge did not “directly” take into account the hardship to the applicant’s family because it was not exceptional. This Court subsequently held that hardship may be taken into account even where it is not exceptional.

Totaan v R (2022) 108 NSWLR 17; (2022) NSWCCA 75, applied.

JUDGMENT

1. THE COURT: Daniel Green (a pseudonym) (the applicant) applies for leave to appeal against the sentence imposed on him by Madgwick QC ADCJ (the sentencing judge) on 4 June 2015 for a single count on an indictment, to which he pleaded guilty at the conclusion of the Crown case against him and three co-accused, Donald Black (Black), Simon Smith (Smith) and William Brown (Brown). The count alleged that he and his co-accused had conspired to import a border controlled drug, cocaine, in a commercial quantity contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) (the Code) (the importation offence). The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units ($825,000).

2. The sentencing judge imposed a sentence of 21 years’ imprisonment, commencing on 3 December 2012 and expiring on 2 December 2033, with a non-parole period of 12 years and 6 months commencing on 3 December 2012 and expiring on 2 June 2025, which amounted to approximately 60% of the total term.

3. Another offender, Dean White (White), also pleaded guilty to the importation offence. Black and Brown were found guilty by a jury of that offence.

4. Smith pleaded guilty to the separate count of conspiring to possess a commercial quantity of cocaine contrary to ss 11.5(1) and 307.5(1) of the Code, for which the maximum penalty is also life imprisonment and/or 7,500 penalty units ($825,000). He was sentenced to a term of imprisonment of 26 years commencing on 5 December 2012 and expiring on 4 December 2038, with a non-parole period of 17 years’ imprisonment, commencing on 5 December 2012 and expiring on 4 December 2029, which amounted to approximately 65% of the total term.

5. The applicant seeks leave to appeal on the following grounds:

1.    His Honour erred in failing to adopt the ‘instinctive synthesis’ approach to the sentencing exercise.

2.   His Honour erred in failing to take into account hardship to the Applicant’s family in the sentencing exercise.

3.   The Applicant has a justified sense of grievance by reason of his sentence and the sentence imposed on the co-offender, [Simon Smith].

6. The Crown accepted that ground 1 was made out and that, accordingly, it was necessary for this Court to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ). It also accepted that ground 2 was made out in light of this Court’s decision (which post-dated the sentence) in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (Totaan), which overruled previous authorities which decided that hardship to an offender’s family must be exceptional before it could be taken into account directly on sentence.

7. The applicant also sought an extension of time for leave to appeal pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), which was not opposed. Given the nature of the grounds and the concession in respect of the first ground, the interests of justice favour that the extension be granted: Kentwell v The Queen at [33].

8. It is not necessary for this Court to address the third ground of appeal as, in re-sentencing the applicant, this Court is obliged to apply the principles of parity.

9. Because of the Court’s view on re-sentence and the imminence of the expiry of the non-parole period in the original sentence, orders in this matter (set out at the conclusion of this judgment) were pronounced on Monday 10 February 2025, with reasons reserved. What follows are the Court’s reasons for those orders.

The facts

10. The facts of the offending were set out in an agreed statement of facts which was tendered before the sentencing judge. What follows is a summary of those facts, with particular emphasis on the applicant and Smith, who was accepted to be the most relevant co-offender for the purposes of parity.

The consignment

11. On 14 September 2012, a consignment of 900 cartons of wine containing about 123kg of pure cocaine, which was dissolved in an aqueous ethanol solution in 42 dozen frosted wine bottles, arrived in Australia. The consignment was the subject of two conspiracies: to import a commercial quantity into Australia and to possess it for distribution within Australia. The declared value of the consignment was $US13,745. The consignment had been loaded in a port in South America on 31 July 2012.

12. In September 2012, the consignment was intercepted and seized by investigating Australian Federal Police (AFP) officers who deconstructed and subsequently reconstructed it for the purposes of their investigation. Analysis by AFP forensic experts demonstrated that, using the mean purity of 30.8%, the total net weight of pure cocaine was just over 123kg of which 246g of pure cocaine could be extracted from each of the frosted bottles.

13. The reconstructed consignment was delivered to storage units leased by co-offenders in a suburb in southern Sydney. Police surveillance continued for the following 10 weeks, in the course of which substantial evidence was obtained as to the involvement of the applicant and his co-offenders in the consignment, which included using telephone services subscribed in obviously false names, speaking in code and not using names during the calls.

14. Prior to his departure for Australia, the applicant was involved in the preparation and despatch of shipping documents for the consignment. On 25 September 2012 an email entitled “Packing Declaration” was sent from an address in the applicant’s name to Sarah Smith asking her to complete the attached file and resend it as the container could not be released due to lack of original documents. A reply email was sent within the hour. Following further communications an amount of $7,114.90 was deposited in cash into the account of CEO Global Logistics Pty Ltd, which settled all outstanding customs and logistics charges associated with the consignment. The consignment was delivered later that day to the storage unit.

The applicant’s arrival in Australia

15. The applicant arrived in Australia on 14 November 2012, after having been assured by White that it was safe to do so. Brown activated a mobile phone for the applicant to use when he arrived and also hired a car, nominating himself and the applicant as drivers. The applicant met with other co-offenders, including at an inner-city suburb of Sydney on 17 November 2012, to identify a suitable property to lease. From 18 November 2012, the applicant spent time with Green, a co-conspirator. In intercepted conversations, they discussed the location of a suitable property in which to extract the cocaine from the wine, that the cocaine was secreted in “43” of the 900 cartons of wine, that the applicant was “Grey’s” partner (a reference to Fred Miller, a person who was apparently higher in the hierarchy) and that they expected significant rewards for their work. Further meetings between the applicant and his co-offenders took place in the ensuing days in furtherance of the conspiracy.

16. On 20 November 2012, the applicant went to the northern beaches with another co-offender to look for suitable houses.

17. The applicant and Brown were in telephone contact with Smith who was still overseas but who arrived in Australia 10 days after the applicant. In one such conversation, Smith advised the applicant against moving the cocaine from its current location. They also discussed getting money to the applicant, which was later achieved through another co-offender. The applicant and Brown spoke about the chemicals required for the extraction of the cocaine from the liquid and the quantities needed. Brown later confirmed with Smith in December 2012 that the requisite chemicals had been obtained.

Smith’s arrival in Australia

18. Smith arrived in Australia on 24 November 2012 and met with co-offenders, including the applicant. He directed the applicant as to what needed to be done. Various co-offenders moved the cases of bottles between storage units pending their despatch to the new location. On 27 November 2012, there were meetings between various co-offenders, including a one-and-a-half-hour meeting at another inner-city suburb between the applicant and Smith, following which they discussed with other co-offenders the transportation of the cartons from the storage facility.

Further preparation

19. On 28 November 2012, the applicant told Brown that he had secured the house (a house on the northern beaches had been leased for the sum of $19,000). Smith spoke to “Grey” and confirmed that they had the house and that everything was ready. Later that day, the applicant, Smith and other co-offenders discussed the process and equipment required to extract the cocaine from the liquid and convert it into powder blocks for distribution and supply. They purchased three ovens from a hospitality store from an inner western suburb for that purpose. In the ensuing days, the applicant was party to further discussions about logistics. The following day, the applicant supervised his co-offenders’ delivery of the frosted bottles to a location on the northern beaches. That evening, he met with Smith.

20. On Friday 30 November 2012, Green left the conspiracy and travelled to Queensland. The applicant informed “Grey” by phone of Green’s departure and told him that, although he was waiting for further equipment, he expected to be ready to start (the extraction process) on Tuesday or Wednesday and, accordingly, that the frosted bottles would need to be moved from the location on the northern beaches. Later that night, the applicant met with two of his co-offenders on the northern beaches for half an hour.

21. The following day, 1 December 2012, the applicant spoke with Smith and told him that “Grey” had decided that the cocaine needed to be moved. Smith then spoke with Brown to see if he could safeguard it for a few more days while they searched for a more suitable “office”. That afternoon, the applicant met White at a suburb in the eastern suburbs and travelled with him to a suburb in southern Sydney. The applicant confirmed that he had “the stuff” for the extraction process. They agreed that they should begin the extraction process straight away so that they could get some money and send it overseas. Further discussions took place on 3 December 2012 between Smith and Brown. The applicant spoke to “Grey” and asked him about the dressings of the bottles used to store the cocaine and the colour of the corks.

The applicant’s arrest and his further involvement

22. At about 5pm on 3 December 2012, the applicant was arrested while he was on his way to meet Smith and Brown. The arrest was timed to prevent the applicant alerting Smith and Brown to the fact that the consignment had been intercepted and the liquid containing the cocaine removed by the AFP. The police released the applicant to use him to obtain evidence against his co-offenders. The applicant agreed to assist in that process and continued to participate in the conspiracy until Smith and Brown were also arrested on 5 December 2012. White and Black were arrested on 6 December 2012.

The items found when search warrants were executed

23. Search warrants were executed which established that Smith was in possession of invoices for ovens and lists of names and numbers, including those of the applicant, Brown and “Grey”; that the applicant had numerous telephones, a laptop computer and approximately $4,000 in cash; and that Brown had mobile telephones, a laptop, two cooktops, two fans, a quantity of acetone, a CEO business card and the green, frosted bottles found at his storage unit.

The timing of the plea

24. The trial commenced on 14 October 2014. When the Crown case closed six weeks later on 28 November 2014, the applicant changed his plea to guilty.

The sentencing judgment

25. On 4 June 2015, the sentencing judge imposed sentences on the applicant, Smith, Brown, Black and White. His Honour made findings in accordance with the agreed facts, which are relevantly summarised above.

26. As to the respective roles of the applicant and Smith (who was accepted to be the closest in involvement to the applicant), the sentencing judge outlined Smith’s involvement and found:

“The inference is overwhelming that he knew approximately how much of the drug was involved. Thus, his moral culpability should be assessed as being of a high order and, notwithstanding that other matters that were covered by the conspiracy at large cannot be laid at his door, his role was so central and his level of direction so high that it is reasonable to regard him as a co-principal.”

27. The sentencing judge rejected the Crown’s submission that the applicant was a “co-principal” with Smith and preferred to describe the applicant as a “high level co-venturer”. His Honour was satisfied “beyond doubt that [the applicant] knew approximately how much cocaine was involved”. The sentencing judge said that although the applicant was not involved “quite at the level of [Smith] … he was involved for rather longer … and was very active and the link … between [Smith] and [Brown] and [White] and [Black] vectors in the conspiracy”.

28. On the question of parity, the sentencing judge found that Smith and the applicant had similar levels of culpability having regard to their roles in the criminal conspiracy. Smith was a co-principal who had a central role with a high-level of direction and the applicant was a high level co-venturer whose level in the hierarchy was lower than Smith’s but who had a longer and more active involvement and was the link between Smith and others such as Brown, White and Black. Smith and the applicant were sentenced to different offences, which had the same maximum penalties.

29. There was a difference in the ratio between the non-parole period and the total term in that Smith’s was 65% and the applicant’s was 60%. Smith’s plea was earlier than the applicant’s but, unlike the applicant, he did not give assistance to authorities.

30. The sentencing judge noted that the applicant had a wife and two children whom he supported financially. Smith was four years older than the applicant and has no dependent family. Although both the applicant and Smith appear to have extracted secreted cocaine on an earlier occasion in Australia, the applicant had no previous criminal record, at least in Australia. By contrast, Smith had been convicted and sentenced to 9 years’ imprisonment in a country in Europe in 1989 for trafficking 20kg of cocaine. The sentencing judge regarded Smith as a confirmed recidivist.

27. The sentencing judge found, with respect to Smith, that a starting point of 30 years’ imprisonment was appropriate but that this ought be reduced by 12.5% because his plea of guilty demonstrated some willingness to assist the administration of justice, thereby resulting in a total term of 26 years’ imprisonment. His Honour found that the ratio between the non-parole period and the total term ought be 65%, giving rise to a 17 year non-parole period. The sentencing judge adopted the same starting point of 30 years’ imprisonment for the applicant (which was the subject of ground 3, the parity ground).

28. His Honour found with respect to the applicant, and generally as follows. The street value of the cocaine was estimated by the Crown to have been between $27 million and $65 million and, as the amount imported was nearly 63 times the commercial quantity threshold of 2kg, on the basis of the quantity, this case was “in the worst class of case”. The applicant and all co-offenders had been motivated by financial gain. The sentencing judge regarded general deterrence as significant, particularly in drug cases, but considered that specific deterrence was also important, especially in Smith’s case (as he had a criminal history of drug offences) and “to a lesser but considerable extent in the [applicant’s] case”. His Honour said of the applicant’s and Smith’s pleas of guilty that they were “sensibly bowing to the inevitable”, having regard to the “overwhelming Crown case against each of them”.

29. The sentencing judge assessed the value of the applicant’s assistance to police as a controlled informant to be “real” but “low to moderate” and noted that it lasted for about 48 hours during which an agreement between Brown and Smith that the former “would pick up his van and store the drugs in his storage unit came to fruition” and resulted in further evidence of the involvement of Brown and Smith being obtained, which corroborated other (sufficient) evidence. His Honour said that the applicant was not to be criticised for withdrawing his assistance and that he was entitled to a discount which reflected the importance of giving “[r]eal encouragement to people in his position to assist the authorities”.

30. The applicant was 45 at the time of the offence and 48 at the time of sentence. The sentencing judge noted that the applicant’s young son and daughter have had a bad reaction to the separation from their father but said, consistently with decisions of this Court pre-Totaan, that this could only be taken into account if the hardship is exceptional and therefore “cannot be directly taken into account”. His Honour took it into account indirectly by noting that the hardship to his family is “very likely to cause [the applicant] great suffering and distress and … remorse”.

31. The sentencing judge found that the applicant could not be sentenced as a first offender because the subject offence was “not his first occasion of relevant involvement with cocaine in a serious way”. His Honour was satisfied that, as a prisoner in protection, the applicant had been subject to more onerous conditions. His Honour accepted that the applicant had spent his time in gaol productively and appeared to be “trying to fit himself for some law-abiding career upon his release” although he “has now twice been actively involved in the drug trade”. His Honour considered there to be “some evidence of actual contrition” and found that the applicant had “good prospects of rehabilitation”.

32. The sentencing judge said:

“Because of his longer involvement in the conspiracy, notwithstanding that he was not quite at the same level as [Smith], I would think that had the matter proceeded to trial and, had he not had matters which require or warrant a discount, a full sentence of 30 years imprisonment would have been appropriate for him too.

Bearing in mind the real assistance to the police having the value I have indicated, the various subjective matters which I have referred which include that he should have good prospects of rehabilitation and that he is working constructively towards it and that he has shown I think some real contrition, I think a discount on that of 30% would be appropriate. This would produce the 21 years which I have referred. I think he should receive a slightly lower proportion of his sentence as a non-parole period than [Smith] and I would allow that at 60%, the result being the 12 and a half years minimum term, with a non-parole period that I indicated.”

(The error which is the subject of ground 1 is highlighted in bold.)

Ground 1: alleged error in failing to adopt the instinctive synthesis approach

37. The Crown correctly accepted that the approach set out in the above extract is erroneous for the reasons given by the High Court in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ), citing Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [74]-[76] (Gaudron, Gummow and Hayne JJ), and [50]-[74] (McHugh J).

38. The correct approach is for a sentencing judge to take all relevant subjective and objective matters into account to arrive at a starting pre-discount figure in a process described as “instinctive synthesis”. If there is to be a discount for a plea of guilty or for assistance to authorities, the discount is to be applied to the starting figure. It is desirable that it be separately quantified to indicate the utilitarian value of the plea and that it has been taken into account: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [280] (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ). Section 16AC(2) of the Crimes Act 1914 (Cth) requires the discount for assistance to be quantified. Such transparency is apt to achieve the objective of encouraging co-operation.

39. It appears from the extract above that what the sentencing judge did in the present case was to arrive at a starting point, 30 years’ imprisonment, based on objective factors, and then proceed to discount that figure not only by the matters in respect of which the discount is to be separately identified (the plea and the assistance), but also, erroneously, in respect of subjective matters, including prospects of rehabilitation and contrition. His Honour was also in error to roll up subjective matters with the discount for assistance and the plea (if any) and arrive at an omnibus discount of 30% which gave no indication of the actual discount applied for the applicant’s assistance to authorities or for his plea.

40. Instead of approaching the sentencing exercise in the orthodox fashion, the sentencing judge adopted the so-called “two-tier process” which was held to be erroneous in Markarian v The Queen.

41. McHugh J explained the expressions “instinctive synthesis” and “two-tier process” in Markarian v The Queen, at [51], as follows:

“By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the ‘objective circumstances’ of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.”

42. At [74], McHugh J confirmed that the instinctive synthesis approach is not inconsistent with awarding a discount for some factor, such as a plea or assistance to authorities.

43. The applicant also raised an “alternative sub-ground” in [22]-[24] of his written submissions, that the sentencing judge did not take into consideration the utilitarian value of the applicant’s plea of guilty, as should have occurred according to the subsequent decision in Xiao v R at [277]-[278]. That objective factor was not allowed for at all by the sentencing judge, who referred only, in this context, to the subjective consideration that the plea indicated “a willingness to facilitate the course of justice”.

44. Ground 1 has been made out. Accordingly, the sentence must be set aside and the applicant re-sentenced by this Court.

Ground 2: alleged error in failing to take account of hardship

45. The sentencing judge did not “directly” take into account the effect of the sentence upon the applicant’s family. He understood that he was not entitled to do so in the absence of “exceptional hardship”. This Court in Totaan has subsequently held that there is no such restriction and overruled prior decisions to the contrary.

Re-sentence

Evidence on re-sentence

46. A sentence is required to take into account relevant evidence up to the time at which the sentence is imposed. In this Court, the applicant relied on his own affidavit sworn 13 January 2025 as well as the affidavit of his solicitor, Zawat Zreika, sworn 21 January 2025. Neither deponent was required for cross-examination in this Court.

47. This evidence establishes that the applicant’s wife and children have had difficulty coping with his imprisonment, particularly because they are unable to visit him because of the distance and lack of money to make the trip to Australia. Both of his parents have died while he has been in prison. The applicant has been in protective custody because of the assistance he gave to police which caused him to be the victim of violent attacks from other inmates. During the COVID-19 pandemic, he spent extended periods in isolation. He has continued to undertake a religious course while in gaol. He has been employed and currently works in a local abattoir outside the gaol (which reflects his low-security classification).

48. The evidence demonstrates the applicant is a model inmate. According to Dr Richard Furst, whose report dated 16 January 2025 was tendered in this Court on re-sentence, the applicant does not meet the criteria for a specific mental disorder.

Consideration

49. This Court is required to make its own assessment of an appropriate starting point (pre-discount) for the sentence having regard to all objective and subjective factors. The sentence is required to be of a severity that is appropriate in all of the circumstances of the case (Crimes Act, s 16A(1)), having regard to the matters as are relevant and known to the Court under s 16A(2). This Court in re-sentencing is required to have regard to the material before the sentencing judge, his Honour’s unchallenged findings and any relevant evidence of his post-sentence (pre-re-sentence) conduct.

50. The sentence is required to reflect the objective seriousness of the offending which falls in the worst category of case, having regard to the quantity of the drug. The applicant was, as the sentencing judge found, “a high-level co-venturer” but not a principal. Smith is the closest comparator for parity purposes.

51. At the time of sentencing, his Honour found that the applicant had good prospects of rehabilitation and that he had demonstrated “some evidence of actual contrition” by his engagement in religious studies. The additional evidence tends to suggest that he continues to have good prospects of rehabilitation and that the likelihood of re-offending is relatively low.

52. The Crown submitted that no lesser sentence is warranted in law and, accordingly, the appeal ought be dismissed pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW). However, it accepted that, in accordance with Totaan, hardship to the applicant’s family could be taken into account directly. Further, it accepted that inmates who were in prison during the COVID-19 pandemic suffered additional hardship because of the extended periods of isolation. His status as a protected prisoner also makes incarceration more onerous.

53. Section 16A(2)(g) of the Crimes Act requires the Court to take into account the fact of the plea of guilty, the timing of the plea, and the degree to which the fact and the timing of the plea results in any benefits to the community, or any victim of, or witness to, the offence. In Xiao v R, this Court said that this factor included the utilitarian value of the plea: [277]-[278]. A discount of 5% ought be allowed for the plea of guilty.

54. Section 16A(2)(h) of the Crimes Act requires the Court to take into account “the degree to which the offender has cooperated with law enforcement agencies in the investigation of the offence or of other offences.” Under s 16AC(2), the Court is required to specify that the sentence is being reduced for that reason (s 16AC(2)(a)) and the sentence that would have been imposed but for the reduction (s 16AC(2)(b)). The assistance given by the applicant was short-lived and was past assistance only. A discrete discount of 5% ought be allowed for this factor.

55. A pre-discount head sentence of 22 years and 3 months’ imprisonment is appropriate. When the two discounts of 5% each, being a total of 10%, are applied, the result is a head sentence of 20 years’ imprisonment. The sentencing judge fixed a non-parole period that was 60% of the head sentence. That ratio remains appropriate. On this basis, the non-parole period should be 12 years.

Orders

56. On Monday 10 February 2024, the Court made the following orders, the reasons for which are set out above:

1. Leave granted to file a notice of appeal out of time.

2. Leave granted to appeal against sentence.

3. The appeal is upheld on grounds 1 and 2.

4. The sentence passed on 4 June 2015 by Acting Judge Madgwick QC is quashed and in lieu thereof the applicant is sentenced to 20 years imprisonment commencing from 3 December 2012 and expiring on 2 December 2032 with a non-parole period of 12 years expiring on 2 December 2024.

5. The applicant is eligible for release on parole from 2 December 2024.

**********

Decision last updated: 11 March 2025