Jackson v The Queen

[2020] NSWCCA 230

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Jackson v R [2020] NSWCCA 230

Hearing dates:

14 August 2020

Decision date:

11 September 2020

Before:

Bell P at [1];
Johnson J at [2];
Rothman J at [8]

Decision:

(1)   Leave to appeal granted;

(2)   Appeal dismissed.

Catchwords:

CRIME – SENTENCE APPEAL – importation of commercial quantity of cocaine – characterisation of offender’s role in syndicate – manifest excess – offender was principal in Australia – “middle manager” – no error in characterisation – no manifest excess – if “crushing” sentence, then due to seriousness of offence at offender’s age – appeal dismissed

Legislation Cited:

Criminal Code Act 1995 (Cth), ss 307.1(1), 400.5(1)

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

Cases Cited:

Barbaro v the Queen; Zirilli v the Queen (2014) 253 CLR 58; [2014] HCA 2

Barton v R [2009] NSWCCA 164

Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

Goebel-McGregor v R [2006] NSWCCA 390

House v The King (1936) 55 CLR 499; [1936] HCA 40

Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242

R v Holyoak (1995) 82 A Crim R 502

R v Jackson [2019] NSWDC 1

R v Kassir [2020] NSWCCA 88

R v McLean (2001) 121 A Crim R 484; [2001] NSWCCA 58

R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238

Ta’ala v R [2008] NSWCCA 132

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

Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215

Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14

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

ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132

Category:

Principal judgment

Parties:

Kent Anthony Jackson (Applicant)
Crown (Respondent)

Representation:

Counsel:
F Coyne (Applicant)
J Single SC / A Brown(Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Cth) (Respondent)

File Number(s):

2017/346206

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Crime

Citation:

[2019] NSWDC 1

Date of Decision:

29 January 2019

Before:

Berman SC DCJ

File Number(s):

2017/346206

Judgment

1. BELL P: I agree with the reasons of Rothman J and the orders proposed by him. I also agree with the separate reasons of Johnson J.

2. JOHNSON J: I have had the advantage of considering in draft the judgment of Rothman J. I agree with the orders proposed by his Honour and generally with his Honour’s reasons subject to the following additional observations.

3. As the sentencing Judge found, the principal motivation of the Applicant to commit these serious crimes was financial gain with any element of threat being limited and with the effect of those threats on sentence being “relatively modest”: R v Jackson [2019] NSWDC 1 at [27]. His Honour explained how and why he reached this conclusion having regard to the principles expressed in Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215: R v Jackson at [22]-[27], [40]. This finding was understandable in the circumstances of the case. It is not challenged on appeal. The Applicant was acting, in effect, as the Australian principal of this very substantial drug importation enterprise.

4. As Rothman J has noted, the Applicant was 63 years of age at the time of the offence. He was a mature and experienced person who made a considered decision to engage in very serious criminality for financial gain. Whilst the age of the Applicant needed to be taken into account on sentence, this cannot give rise to an expectation that an older person can offend with relative impunity: R v McLean (2001) 121 A Crim R 484; [2001] NSWCCA 58 at [44].

5. The sentence must reflect the objective seriousness of the offence and, in the case of an older offender, it may be the case that, in order to reflect the objective seriousness of the offence, a sentence may unavoidably extend for all or most of the offender’s life expectancy: Goebel-McGregor v R [2006] NSWCCA 390 at [128]; Barton v R [2009] NSWCCA 164 at [22]-[24]. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved and is one that accords with the general moral sense of the community: R v McLean at [45].

6. With respect to the submission that the sentence in this case was a “crushing sentence”, as Grove J stated in Ta’ala v R [2008] NSWCCA 132 at [42], courts are familiar with descriptions of sentences as “crushing”, but that does not articulate some applicable test. An assessment whether a particular sentence is “a crushing sentence” must have regard to the offence committed by the offender, the maximum penalty and all objective and subjective factors which should be appropriately brought into account on sentence: Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 at [215]; ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [71]-[82]. The substantial sentence of imprisonment imposed in this case resulted from the very serious offences committed by the Applicant with the sentencing Judge taking into account all factors that bore upon the imposition of sentence in his case.

7. The Applicant has not made good either of his grounds of appeal.

8. ROTHMAN J: On 29 January 2019, the applicant, Kent Jackson, was sentenced by Berman SC ADCJ, following a plea of guilty. The learned sentencing judge imposed an overall effective sentence, with a non-parole period of 12 years and 6 months and a head sentence, including the non-parole period, of 19 years and 6 months, commencing on 15 November 2017. The applicant seeks leave to appeal, and if leave be granted, appeals the sentences imposed upon him.

9. The applicant pleaded guilty to two offences with the following short details:

Offence 1: Importing a commercial quantity of a border controlled drug (being 547.71 kg of pure cocaine) at Toronto, in the State of New South Wales, on 15 November 2017, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) (hereinafter “the Code”), which carries a maximum penalty of life imprisonment and/or a fine of 7,500 penalty units, for which the applicant was sentenced to imprisonment of 19 years with a non-parole period of 12 years to date from 15 May 2018;

Offence 2: Deal with money ($60,000 in cash) which is and is believed to be proceeds of crime valued at $50,000 or more at Islington on 15 November 2017, contrary to s 400.5(1) of the Code, which offence carries a maximum penalty of 15 years’ imprisonment and/or a fine of 900 penalty units, for which the applicant was sentenced to imprisonment for a fixed term of 2 years from 15 November 2017.

10. The applicant’s sentence was discounted by 40% on account of his plea of guilty and for past and future assistance, pursuant to the terms of s 16AC of the Crimes Act 1914 (Cth) (hereinafter “the Commonwealth Crimes Act”). As a consequence, the notional starting point for the overall sentence equates to 32 years and 6 months’ imprisonment.

Grounds of Appeal

11. The applicant raised two grounds on his application for leave to appeal and for the appeal. Those grounds are:

Ground 1: That the learned sentencing judge erred in his characterisation of the role of the applicant in the drug importation enterprise; and

Ground 2: that in all the circumstances the total sentence imposed is manifestly excessive.

Facts

12. The relevant facts upon which the sentencing judge acted were set out in a document (hereinafter, “the Agreed Facts”). [1] Those facts were summarised by the sentencing judge. [2]

    1. Appeal Book, pp 206-220.

    2. Remarks on Sentence, at [3]-[12].

13. The applicant and his co-offenders, Dennis Malcolm Bath and Craig Lembke, were involved in the importation of 547.71 kg of pure cocaine. The cocaine was imported from Tahiti by use of a catamaran, Skarabej. The drugs were seized from the vessel while it was in dock in Lake Macquarie on 15 November 2017 and the applicant and his co-offenders were arrested that same day. The applicant has been imprisoned since that date.

14. The applicant first became aware of the importation in early 2017. By September 2017, he had recruited Bath into the enterprise and the two discussed “a shipment in PNG”. The applicant told Bath:

“well we got a boat, just need to fly upthere and get it”. [3]

3. Agreed Facts, at [7(b)].

15. On 30 September 2017, the applicant recruited Lembke into the enterprise. Lembke had experience in sailing and was to sail the Skarabej from Tahiti to Australia. Between 6 and 12 October 2017, an associate of Lembke, who was involved in the commercial delivery of sailing vessels, received a series of emails from a person purporting to be named Stefie Kraup, regarding the transporting of the vessel from Tahiti to Australia for a fee. On 13 October 2017, Lembke travelled from Australia to Tahiti by aircraft, with his associate. The applicant had given Lembke $10,000 to pay for the flights. Lembke and his associate departed Tahiti on 17 October 2017 aboard the Skarabej.

16. On 10 November 2017, the Skarabej was sailed into Coffs Harbour and moored. On 13 November 2017, the Skarabej, with Lembke and his associate on board, departed Coffs Harbour Marina, heading south and arrived at Lake Macquarie on 14 November 2017.

17. That day, the applicant arrived at Sydney Airport on a flight from Bangkok. Bath collected him from Sydney Airport and they headed north towards Lake Macquarie. During the course of the journey, they were recorded discussing the size of the importation, in the following terms:

“Bath:       ‘can we get it all off in one go? You reckon?’

Applicant:    ‘um seven hundred, I reckon (indecipherable)’

Bath:       ‘it’s um less than a tonne’

Applicant:    ‘it is less than a tonne. It’s um what’s that 70 cement [perhaps percent]. Not even that.’”

18. They further discussed money, with the applicant stating:

“we’ll get another batch, another bunch of money on Friday. Then we’ll get the 15 million.”

19. Shortly after this conversation the applicant made an enquiry about the availability of a tradesman’s van.

20. During the course of 14 November 2017, the applicant and Bath discussed, on a number of occasions, the cocaine and how it was to be removed from the Skarabej. The applicant was told by others in the enterprise that there would be tools on the boat that would be used in the removal of the concealed drugs. However, he and Bath went to a Bunnings hardware store and bought items including a multi-function tool, a cutting disc and breathing masks.

21. At about 8:50 AM on 15 November 2017, Lembke and Bath boarded the Skarabej, with Lembke departing about 10 minutes later. From about 9:20 AM, the sound of power tools operating could be heard. Police boarded the vessel at about 3:20 PM and arrested Bath.

22. Found concealed in the hold was 700 wrapped blocks of cocaine, which were later determined to weigh 702.2 kg (gross) (the purity being between 76% and 79.4%), the equivalent of 547.71 kg of pure cocaine.

23. The applicant was arrested outside his residence in Islington that same afternoon. During a search of the residence, $60,000 cash in bundles of $10,000 was found in his bedroom (this being the amount that is the subject of the proceeds of crime offence).

24. All of the foregoing is taken from the Agreed Facts. The applicant gave evidence in the proceedings, during the course of which he said:

“Q.    Do you recall telling the police that you had instructions to take 400 kilograms in a van to Hornsby?

A.    Oh yeah, it was - that was not exact - yeah, I did say that, yeah, you’re right.

Q.    Yes, and you were to receive 15 million dollars for that 400 kilograms, that’s correct?

A.    That’s correct, yes.

Q.    You were to keep 300 kilograms as collateral, that’s correct?

A.    Yes. Yep.

…

Q.    You were to then get further instructions as to what to do with the 300 kilograms, is that correct?

A.    That’s correct, yes.

Q.    Of the 15 million dollars you received for the first portion of the drugs, you were to keep 3 million dollars of it, that’s correct?

A.    Yes.

Q.    And it was your decision to split that three ways between yourself, Mr Bath and [Mr Lembke]?

A.    That’s correct, yes.

Q.    You weren’t instructed by others to split it three ways …?

A.    Well it was - no, not really, it was just for me and my boys.

Q.    So you could have kept all three million dollars if you’d chosen to?

A.    I could have, yes.

Q.    So when you said that you were just to throw it in the outboard and in your van and then get a message, that wasn’t correct, was it?

A.    Well not, not, at the face of it, no.

Q.    No, it was not correct, was it?

A.    No.

Q.    See you haven’t been truthful with this court have you?

A.    Well about the taking it to Hornsby, that was pretty vague - was a vague thing where I was supposed to take it.

...

Q.    You were asked a question I believe, by his Honour, as to how much money you were to pay Mr Lembke, do you recall that?

A.    Yes, that was right.

Q.    And you gave the answer $10,000?

A.    That’s how much I paid Mr Lembke, yes.

Q.    And you were also intending to pay him a further million dollars, is that correct.

A.   That’s correct.

Q.    But you didn’t mention that at the time, did you?

A.    No, because it was one - I was under the - I thought you were talking about the money that was already paid to Lembke for his tickets.” [4]

4. Appeal Book, pp 104-105; Tcpt, 11 December 2018, pp 35-36.

Sentence Proceedings

25. The learned sentencing judge heard together the applicant’s proceedings on sentence and the sentence proceedings of his co-offender, Bath. Those proceedings occurred between 30 November 2018 and 11 December 2018. Sentence was imposed on 29 January 2019. The co-offender Lembke entered a plea of not guilty and his matter proceeded separately to trial, where he was found guilty by a jury.

26. Exhibit 1 on sentence, tendered by the Crown, included the Statement of Agreed Facts and the Applicant’s Criminal History. The applicant tendered a report by Dr Stephen Allnutt, Forensic Psychiatrist, and a number of character references. This material was marked Exhibit 2 in the proceedings.

27. As earlier indicated, the applicant gave oral evidence. Apart from the material already extracted, the applicant’s evidence included facts to the following effect:

1. The applicant was earlier involved in sourcing a different yacht in late 2016-early 2017, for a separate importation which ultimately failed. [5]

   5. Tcpt, 11 December 2018, pp 44-47.

2. The only members of the enterprise in Australia were the applicant, Bath and Lembke. The applicant recruited Bath and Lembke [6] and provided them with encrypted EncroChat phones. [7]

   6. Tcpt, 11 December 2018, pp 25, 28, 53 and 56.

   7. Tcpt, 11 December 2018, p 15.

3. The applicant unsuccessfully attempted to recruit another person, named Leon, into the enterprise. [8]

   8. Tcpt, 11 December 2018, p 59.

4. The applicant was the “only conduit for all of it” in Australia. [9]

   9. Tcpt, 11 December 2018, p 57(10-15).

5. The applicant met directly with a more senior figure in the enterprise, known as “the Black Prince”. They met in Thailand shortly before the applicant returned to Australia on 14 November 2017. [10]

6. The applicant collected a quantity of cash in a McDonald’s paper bag from a man in North Sydney. [11]

7. The applicant was to arrange for the removal of the drugs from the yacht. The applicant was to source an outboard boat to transport the drugs from the yacht and a van to transport the drugs onshore. [12]

8. Following retrieval of the cocaine from the Skarabej, the applicant was to take 400 kg (of the 700 kg gross weight) in a van to Hornsby and exchange it for $15 million. He was to keep 300 kg (gross weight) as “collateral”. [13]

9. The applicant was to receive $3 million as payment which he had intended to split equally with Bath and Lembke. [14] The equal split was at his discretion. [15]

   10. Tcpt, 11 December 2018, p 17.

   11. Tcpt, 11 December 2018, p 19.

   12. Tcpt, 11 December 2018, pp 17, 20 and 21.

   13. Tcpt, 11 December 2018, p 35.

   14. Tcpt, 11 December 2018, pp 31, 35 and 55.

   15. Tcpt, 11 December 2018, p 35.

28. During the course of the submissions on sentence, the Crown referred to the applicant as the principal in Australia. It is clear from the evidence that it was the applicant alone who dealt with persons more senior in the undertaking; it was the applicant alone who sourced the other personnel involved; he sourced personnel on the basis of persons he could trust and who had, otherwise, the skills necessary to assist; their payment was, as stated, a matter decided by the applicant.

29. The co-offender Bath was sentenced to imprisonment for 13 years, with a non-parole period of 8 years to date from 15 November 2017. There is no complaint in this appeal about the application of the parity principle.

The Applicant’s Subjective Circumstances

30. The sentencing judge summarised the applicant’s subjective circumstances in his Remarks on Sentence. [16] The applicant was 63 years of age at the time of the offence and 64 at the time that the sentence was imposed. He was born in New Zealand but came to Australia at a young age, completing his schooling at the end of year 11. He was raised in a loving and supporting household and was not exposed to abuse. The applicant worked as a labourer and a musician, with his most recent employment involving the running of a security company.

    16. Remarks on Sentence, at [18]-[19]; [33]-[36]; [45]-[51] and [54]-[55].

31. The applicant was married for 20 years and has five children. He separated from his wife in late 2014. This coincided with a number of other stressors in his life: the passing of his mother; and the discovery of a tax debt.

32. The applicant suffered depression for a time, but his mental state improved when he commenced a relationship with a woman in Thailand. At the time of the offences, he was dividing his time between living in Australia and Thailand.

33. The applicant tendered, as already stated, a number of character references, each of which attested to his concern and care for others and his community-mindedness, suggesting that the subject offences were “grossly out of character”. [17]

    17. Remarks on Sentence, at [19].

34. As earlier stated, there is a report of Dr Allnutt whose evidence was summarised by the sentencing judge. Dr Allnutt expressed the view that, at the time of the offending, the applicant displayed “symptoms consistent with a chronic adjustment disorder with a depressed and anxious mood”, which rendered him more vulnerable to engage in the subject offending. The sentencing judge noted that Dr Allnutt’s opinions were largely based on the applicant’s account of duress, to which some attention is paid later in these reasons, which the sentencing judge did not accept was as significant as the applicant had sought to convey. [18]

    18. Remarks on Sentence, at [47].

Remarks on Sentence

35. Much of the Remarks on Sentence were taken up, as would be expected, with a summary of the circumstances of the offending and the subjective circumstances of the offender. Those matters have been dealt with sufficiently already.

36. The sentencing judge assessed the importation offence to be “a serious example of a very serious offence”. [19] His Honour made clear that the above description was informed by a number of factors, including, amongst other things, the applicant’s role; the quantity of drugs imported (547.71 kg of pure cocaine); the duration of the offending; and the applicant’s motivation. Ground 1 of the appeal, as stated, challenges the sentencing judge’s characterisation of the applicant’s role.

    19. Remarks on Sentence, at [2], Appeal Book, p 192.

37. The sentencing judge characterised the applicant’s role as follows:

“[13]    The roles of the 2 offenders appearing for sentence today were not identical, Mr Jackson was more heavily involved, having a higher level of responsibility in the drug importation organisation which was responsible for this shipment. His role included co-ordination and logistics as well as recruitment of Mr Bath and Mr Lembke. He collected money to be used in this criminal endeavour and gave some of it to Mr Bath. He gave instructions to Mr Bath and Mr Lembke. It appears that he was the person within the organisation responsible for removing the drugs and getting them onto dry land for delivery to others. He provided encrypted mobile phones to Mr Bath and Mr Lembke and directed Mr Bath as to how the cocaine should be removed.

[31]   On the other hand Mr Jackson’s role could be described as one which approached that of a middle manager in the operation. He did not do only what he was directed to do. He was able to exercise independent judgment as to who he would recruit to assist him. These were Mr Bath, Mr Lembke and a man named Leon. He was going to be paid the $3,000,000 and it was his job to divide up that payment. He was the person who supplied Mr Bath and Mr Lembke with their encrypted phones so that they could communicate securely with him, and also with other members of the syndicate, albeit in Mr Bath’s case this was not terribly successful.

[32]   It is clear also that Mr Jackson held a position of some trust within the organisation. He was trusted to receive payment from whoever it was in Hornsby who was to receive 450 kilograms of cocaine, the sum of $15,000,000. And he was also trusted to hold onto the remaining 300 kilograms.”

38. From the foregoing there are a number of aspects that should be stressed. First, the applicant’s role included coordination and logistics as well as recruitment; he collected the money; he gave instructions to the co-offenders; he was responsible for removing the drugs and getting them onto dry land for delivery; and he provided encrypted mobile phones to each of his co-offenders.

39. Further, as is stated by the sentencing judge at [32] extracted above, the applicant held a position of trust within the organisation as a whole. Further again, his Honour described the applicant’s role as one that “approached that of a middle manager in the operation” who was “able to exercise independent judgement”.

40. There are a number of other relevant findings of the sentencing judge to which there is no challenge. These included some significant mitigating factors. The applicant pleaded guilty at the earliest opportunity and was entitled to a discount of 25% on that basis. [20] The applicant provided assistance for which a combined discount of 40% was provided, being a discount for the plea of guilty and the other matters to which the provisions of s 16AC of the Commonwealth Crimes Act apply.

    20. Remarks on Sentence, at [16].

41. The sentencing judge also held that the applicant had good prospects of rehabilitation; [21] the applicant accepted responsibility for his actions; [22] the applicant was, otherwise, of good character prior to the commission of the offences; [23] and concluded, on the principles of totality, that the extent of accumulation between the two sentences that were imposed upon the applicant should be modest and should involve a significant degree of concurrence, given the relationship between the two offences. [24]

    21. Remarks on Sentence, at [51].

    22. Remarks on Sentence, at [55].

    23. Remarks on Sentence, at [51], this finding made despite the evidence provided as to an earlier attempt at similar offending.

    24. Remarks on Sentence, at [43].

Applicant’s Submissions

42. In relation to Ground 1, much of the criticism of the sentencing judge focused on his categorisation of the applicant as “middle management”. The applicant stressed that references to engaging in coordination, logistics and recruitment by the sentencing judge grossly exaggerated his actual role. Nor, according to the applicant’s submissions, did the applicant give instructions to Bath and Lembke; they received instructions directly from the principals.

43. As to the retrieval of the drugs from the boat, the applicant submitted that he simply read out a message from the principals as to where the drugs were located and how they should be retrieved. The applicant had no involvement in sourcing the drugs or the boat and had no role in packing the drugs onto the boat or getting it to Tahiti.

44. The applicant’s role was, according to his submissions, largely limited to the retrieving of the boat and its contents in Australia. His role was to cease on retrieving and delivering the shipment to a person nominated by his handlers in the syndicate. Further, the applicant acted on instructions in finding a skipper for the trip from Tahiti to Sydney and in retrieving the drugs from the boat on arrival for delivery to a third unknown party. The applicant stressed that he and his two co-offenders were expected to receive equal payments, of $1 million each, for their respective roles.

45. In relation to Ground 2 of the appeal, manifest excess, the applicant’s submissions drew attention to the applicant’s actual role; the contribution of non-exculpatory duress; the applicant’s previous good character; his age (65) and his health. The applicant submitted that the sentence imposed was, in those circumstances, unreasonable and plainly unjust.

46. Further, the applicant submitted that the sentence imposed was “a crushing sentence” in all the circumstances particularly given that the applicant will be 76 years’ of age when first eligible for parole and will have served his sentence in protection.

Consideration

47. As correctly identified by the sentencing judge, this is an extremely serious example of a serious crime. The legislature has determined the seriousness of the crime by fixing the maximum sentence as life imprisonment. As a consequence, a worst-case offence of this kind involves the most dramatic and serious sentence that courts can impose.

48. In determining an appropriate sentence, a sentencing court is required to synthesise the objective circumstances of the commission of the offence with the subjective circumstances of the offender and derive a sentence to be imposed that, in the discretion of the sentencing judge, best achieves the objects of sentencing.

49. The purposes of sentencing are well known. They were summarised by the High Court in Veen v R (No 2). [25] Those objectives are the protection of society; the deterrence of the offender and of others who might be tempted to offend; retribution; and reform. They include the desirability of rehabilitation and, most appropriately, the need to ensure that appropriate punishment is meted out as a reflection of the condemnation of the conduct in question.

    25. (1988) 164 CLR 465; [1988] HCA 14.

50. No submission is made that the learned sentencing judge failed to have regard to all of the criteria necessary in fixing the sentence. [26] Nor is any submission put to the Court that the learned sentencing judge considered matters that were irrelevant to the exercise of discretion being undertaken. As indicated, two issues are raised: the characterisation of the applicant’s role in the importation; and manifest excess.

    26. See, inter alia, s 16A of the Commonwealth Crimes Act.

51. At one stage, during the course of submissions to the Court, it was suggested that the characterisation by the learned sentencing judge did not reflect the characterisation by the Crown and was, in some sense, a characterisation of the applicant’s position as one higher in the hierarchy of the offending than the Crown, itself, suggested.

52. There are some fundamental aspects to the exercise of the sentencing discretion of which parties should never lose sight. First, it is for the prosecutor, and the prosecutor alone, to determine the charge or charges to be preferred. Secondly, it is for the accused and the accused alone to determine the plea to be entered to the charges that have been preferred. Lastly, and most importantly for present purposes, it is for the sentencing judge, alone, to determine the sentence that should be imposed in order to achieve the purposes of sentencing, to which reference has already been made. [27]

    27. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22.

53. In the exercise of the discretion to determine an appropriate sentence, a sentencing judge is required to determine facts and to characterise, in many instances, the role played by an offender in a criminal enterprise. In so doing, the sentencing judge is entitled to receive assistance from the Crown and Counsel for an accused/offender.

54. However, in appropriately characterising the role of an offender, a sentencing judge is not bound by the label ascribed to the offender’s role by counsel. Nor, subject to procedural fairness, is a sentencing judge bound by a range of characterisations the ambit of which is determined by the submissions of the Crown on the one hand and the offender on the other. [28]

    28. See, by analogy, Barbaro v the Queen; Zirilli v the Queen (2014) 253 CLR 58; [2014] HCA 2 at [7], per French CJ, Hayne, Kiefel and Bell JJ and, in particular therein, the reference to “bounds”.

55. In fact, the Crown described the role of the applicant as the “principal in Australia”. [29] This description is an accurate one.

    29. Tcpt, 11 December 2018, p 107, Appeal Book, p 176; Tcpt, 11 December 2018, p 102, Appeal Book, p 171.

56. The applicant chose the persons who were to work on the importation and, in doing so, chose them on the basis of their trustworthiness to him, their robust characters and, in the case of the skipper, and Lembke, their sailing skills. The applicant dealt with the principals overseas; took possession of the drugs; handled the money on behalf of the syndicate; determined the amount that would be paid to his co-offenders in Australia; and was responsible for holding $12 million for his principals, in relation to the first amount of drugs and holding the 300 kg of drugs for what would become a second sale.

57. There can be little doubt, in my mind, that the characterisation by the learned sentencing judge was open to him and correct, if not understated. Whether that characterisation is given the label the principal in Australia or middle management of the entire syndicate is of little consequence in determining the actual role played by the applicant in this importation.

58. In my view, Ground 1 of the appeal is without merit and must fail.

59. In relation to Ground 2, the applicant submits that the sentence imposed is manifestly excessive. The maximum sentence for an offence of this kind is life imprisonment.

60. Because of the level of discount, the starting point for the more serious offence in question was 32 years and 6 months and the overall effective sentence imposed for both offences was 19 years and 6 months head sentence, with a non-parole period of 12 years and 6 months. This is a significant sentence. It relates to two offences one, as stated, with a maximum sentence of life imprisonment, and the other with a maximum penalty of 15 years’ imprisonment. Each can also carry a fine.

61. Having dealt with the submissions in relation to Ground 1 of the appeal, the applicant is unable to point to any identifiable error in the Reasons provided by the sentencing judge. Identifiable error arises where the sentencing judge acts on a wrong principle; has made a mistake of fact; a mistake of law; failed to take into account relevant consideration; or taken into account irrelevant considerations. [30]

    30. House v The King (1936) 55 CLR 499; [1936] HCA 40.

62. As a consequence, the applicant relies upon manifest excess. Manifest excess is a subset of manifest error, which, in sentencing, exists when the result is unreasonable or plainly unjust. [31] It arises when, because the sentence imposed is plainly unjust or unreasonable, an appellate court comes to the view that there must have been error, even though the error is not identifiable. [32]

    31. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; House v The King, supra.

    32. House v The King, supra.

63. The sentencing judge evaluated the objective seriousness of this offence in a manner that was not only open to him, but was correct. It was a serious example of an offence of this kind. Further, the applicant’s role in the offence was significant. Whatever label is placed upon that role does not obscure the assessment of the actual role played by the applicant. [33]

    33. The Queen v Olbrich (1999) 199 CLR 270 at 279; [1999] HCA 54.

64. As stated in relation to the issues associated with Ground 1, the applicant’s role was that of middle manager of the enterprise, or principal in Australia. The applicant’s submission as to the proper characterisation of his role grossly understates his position in the enterprise and in Australia.

65. The applicant exercised independent judgement as to whom he would recruit; he coordinated the execution of the offence and organised the logistics; he recruited his co-offenders, and attempted to recruit another; he determined the amount to be paid to them; he collected the money to be used in carrying out the criminal enterprise; he gave instructions to his co-offenders; he was the person within the organisation responsible for removing the drugs and getting them onto dry land for delivery to others; he provided the encrypted mobile phones to the co-offenders; he directed the co-offender Bath as to how the cocaine should be removed; he was involved in the enterprise over a considerable period of time, commencing at the start of 2017; he had knowledge of the details and size of the importation, how it was to be distributed and the money involved; he was the repository of a significant degree of trust by those higher up in the syndicate in relation both to the possession of 700 kg of the drug and of $15 million in cash; and he exercised a degree of autonomy in fulfilling the role that he was given.

66. Over and above all of that, his motive was financial. He was provided with $3 million for his part in the organisation (20% of the amount received), which he divided amongst himself and his co-offenders as he decided.

67. Against that it is said there was a degree of non-exculpatory duress. I can imagine that such would be the case but the sentencing judge found that the threats were not a significant feature of his motivation. [34] His motivation was financial, but given that he was holding 700 kg of cocaine and $15 million in cash, at various stages, there can be little doubt that there would be some threat associated with ensuring his loyalty to the principals above him.

    34. Remarks on Sentence, at [40].

68. He is otherwise, or was otherwise, a person of good character. The sentencing judge found so and found him to be a caring person who does not otherwise have any of the characteristics of a person who would commit these sorts of crimes. This finding informed the sentencing judge’s conclusion that the applicant had good prospects of rehabilitation, which the sentencing judge took into account. It also informed the sentencing judge’s conclusion as to the effect of the threats. However, as has been noted on a number of occasions, prior good character is not an uncommon characteristic of persons involved in drug importation. [35] Prior good character may not always be given full weight in cases such as importation of drugs. [36]

    35. R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72], per Johnson J (with whom Macfarlan JA and RA Hulme J agreed).

    36. R v Kassir [2020] NSWCCA 88 at [99].

69. The sentencing judge expressly applied principles associated with totality in sentencing. The learned sentencing judge imposed a sentence with a significant degree of concurrency and with what the sentencing judge described as “some small or modest accumulation”. The six months accumulation, referable to the offence of the proceeds of crime, is both appropriate and available. It reflects the application of principle.

70. In relation to the applicant’s health, it was taken into account by the sentencing judge and does not render the sentence imposed either plainly unjust or unreasonable. The factor relating to the health of the applicant, his age and what has been described by the applicant as a “crushing sentence” are matters that are appropriate to be dealt with as particulars of the one issue.

71. The applicant was, as has been stated, 63 years’ of age at the time of the offence and 64 at the time that he was sentenced. The non-parole period will conclude on 14 May 2030, when the applicant will be 76 years’ of age.

72. Nevertheless, it was the applicant’s choice to commit an offence of such seriousness at a time in his life when any sentence that would be imposed would be lengthy. There was no delay between offending, charging and sentencing.

73. There is not an automatic discount on an appropriate sentence simply because a person may be relatively old when the person is first eligible for parole. However, the age of the applicant is a relevant factor, which the sentencing judge considered.

74. The advanced or more advanced age of an offender is relevant to sentencing in a number of ways. I refer to two only. First, it may render imprisonment more onerous than for someone younger.

75. Secondly, it may be relevant, in fixing an appropriate sentence, that the offender should have an opportunity for rehabilitation in the community at the conclusion of the sentence. Where the effect of a sentence is that it is unlikely that an offender will have any meaningful life after its conclusion, this may be an important consideration in the sentence to be imposed. [37] There are other bases for consideration of the elderly nature of an offender, but it is unnecessary to list them.

    37. R v Holyoak (1995) 82 A Crim R 502; Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18.

76. The age of the applicant was considered by the learned sentencing judge. Ultimately, it is necessary for the sentencing judge to impose an appropriate sentence. The serious nature of the offending conduct requires significant general deterrence.

77. At 76, when the applicant is first eligible for parole, he will, nowadays, likely have many years ahead of him in which to establish his rehabilitation. Fundamentally, the applicant must show that the sentence is unfair or plainly unjust. The fact, if it were the fact, that this Court may have exercised the sentencing discretion differently is an insufficient basis for interfering with the sentence imposed in the absence of the applicant showing a plainly unjust or unfair sentence.

78. This extremely serious offence involves more than 273 times the commercial threshold necessary for an offence of this kind. There are reasons why general deterrence and the need for punishment loom large. [38]

    38. Wong v R (2001) 207 CLR 584 at 607-608; [2001] HCA 64.

79. The applicant, at 63 years’ of age, took the decision to become involved in an extremely serious offence. The fact that the imposition of an appropriate sentence has the result that the applicant will be 76 years’ of age, when he is first eligible for parole, does not render the sentence imposed as other than appropriate.

80. The fact, if it were the fact, that any one of the members of this Court might have imposed a sentence that is different from that imposed by the sentencing judge, does not render the sentencing judge’s exercise of discretion one that calls for intervention. There is more than one correct sentence.

81. The sentence imposed by the learned sentencing judge is neither plainly unjust nor unreasonable. It is not the sentence that is crushing; it is a sentence of some seriousness that was required to be imposed and any “crushing effect” is a result of the applicant deciding that, at his age and in his health, he would undertake criminal activity that required a sentence of that kind.

82. The second Ground of Appeal must also be dismissed. I would propose that the Court make the following orders:

1. Leave to appeal be granted;

2. Appeal be dismissed.

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Endnotes

Amendments

14 September 2020 - Coversheet amended.

Decision last updated: 14 September 2020