Mohr v The King

Case •

[2024] NSWCCA 197

•

06 November 2024

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Mohr v R [2024] NSWCCA 197
Hearing dates: 20 September 2024
Date of orders: 06 November 2024
Decision date: 06 November 2024
Before: Bell CJ at [1];
Davies J at [90];
Wright J at [91].
Decision:

1.       Leave to appeal granted.

2.       Appeal allowed.

3.       Quash the sentence imposed on Darren Mohr on 3 July 2020 and in lieu thereof, sentence Mr Mohr to a term of 22 years imprisonment to date from 22 January 2019, expiring on 21 January 2041, with a non-parole period of 13 years, expiring on 21 January 2032.

Catchwords:

SENTENCING – appeal against sentence co-offenders – disparity between sentences – where the Applicant was a participant in a conspiracy to import a commercial quantity of a border-controlled drug – where the Applicant was the only co-conspirator to plead not guilty and was the last to be sentenced – where factual challenges made to the sentencing judge’s findings as to the Applicant being senior to another of the co-conspirators in the hierarchy of responsibility in relation to the conspiracy – whether the sentence imposed on the Applicant gave rise to a justifiable sense of grievance in light of the sentence imposed on that co-conspirator – where that co-offender’s undiscounted indicative sentence in respect of the conspiracy was half of that imposed on the Applicant

Legislation Cited:

Crimes Act 1914 (Cth) ss 16A, 17A

Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A

Criminal Appeal Act 1912 (NSW) ss 6(3), 10(1)(b)

Criminal Code Act 1995 (Cth) ss 11.5, 307.1

Supreme Court (Criminal Appeal) Rules 2021 (NSW) rr 3.1, 3.5

Cases Cited:

Adams v R [2018] NSWCCA 139

Afu v R [2017] NSWCCA 246

Assam v R [2019] NSWCCA 12

Borg v R [2019] NSWCCA 129

Cameron v R [2017] NSWCCA 229

Camm v R [2009] NSWCCA 141

Cao v R [2010] NSWCCA 109

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579

Contos v R [2022] NSWCCA 92

Daw v R [2017] NSWCCA 327

Decision restricted [2023] NSWCCA 257

Downes v R [2020] NSWCCA 167

DS v R [2014] NSWCCA 267

Fenech v R [2018] NSWCCA 160

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

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

Huckstadt v R [2016] NSWCCA 22

Keen v R [2024] NSWCCA 157

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

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

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

Martellotta v R [2021] NSWCCA 168

Miles v R [2017] NSWCCA 266

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin [2018] NSWSC 1953

R v O’Donoghue (1988) 34 A Crim R 397

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

Regina v Pan [2005] NSWCCA 114

Rosenberg v R [2022] NSWCCA 295

Tran v R [2017] VSCA 346

Tuivaga v R [2015] NSWCCA 145

Weiss v R [2020] NSWCCA 188

Wilson v R [2008] NSWCCA 245

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

Youkhana v R [2011] NSWCCA 37

Category:Principal judgment
Parties: Darren John Mohr (Applicant)
Crown (Respondent)
Representation:

Counsel:

B Walker AO SC with P Lange (Applicant)
P McDonald SC with A Payten (Respondent)

Solicitors:

Abbas & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2017/376756
Publication restriction: Pursuant to s 7 of the Court Suppression and
Non-Publication Orders Act 2010 (NSW), there be no publication or disclosure of any information about the Applicant’s co-offenders and no publication of any evidence directly relating to a medical condition suffered by the Applicant.
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Criminal
Citation:

[2020] NSWSC 871

Date of Decision:
3 July 2020
Before:
Wilson J
File Number(s):
2017/376756

HEADNOTE

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

Following a trial in the Supreme Court of New South Wales before Wilson J (the sentencing judge) and a jury, the Applicant, Darren Mohr, was found guilty of a single count of conspiring to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). He was sentenced to a term of 32 years imprisonment commencing on 22 January 2019, with a non-parole period of 18 years, expiring on 21 January 2037: R (Cth) v Mohr [2020] NSWSC 871.

The Crown case at trial was that, between about 1 May 2016 and 5 November 2016, the Applicant was one of six co-conspirators in a conspiracy known as the “Dalrymple 1 conspiracy”. A person identified in the evidence as “Gutterball” was the principal of the conspiracy from his base in Thailand. The conspiracy concerned the planned importation of 500kgs of cocaine from Chile to Australia by using a fishing vessel, the Dalrymple, to collect drugs from a Chilean ship in international waters off Fiji. Although the Dalrymple reached the designated rendezvous point and waited for the Chilean ship, it did not appear and the Dalrymple returned to Sydney empty.

The Applicant was the only co-conspirator to plead not guilty and, following his conviction, was the last of the co-conspirators to be sentenced. The evidence of one of the co-conspirators, Person A, was central to the Crown case and his evidence was accepted and drawn upon heavily by the sentencing judge. Person A pleaded guilty to three charges of conspiracy to import a commercial quantity of a border-controlled drug. The three charges concerned five conspiracies, including the Dalrymple 1 conspiracy. The Applicant was not involved in the other conspiracies to which Person A pleaded guilty.

Person A was sentenced by Wilson J on 14 December 2018 and received an aggregate term of imprisonment of 22 years and 6 months. Her Honour’s indicative sentence in relation to Person A’s involvement in the Dalrymple 1 conspiracy was, after allowing for discounts for an early plea and co-operation, 8 years imprisonment. Subsequent to the Applicant’s sentencing, Person A brought a successful appeal against his sentence. He was re-sentenced to an aggregate sentence of 19 years imprisonment, with a non-parole period of 12 years and 3 months. The Court indicated that the sentence that would have been imposed in respect of Person A’s involvement in the Dalrymple 1 conspiracy was 7 years and 2 months. Given Person A’s sentencing discounts, this indicative sentenced translated to an undiscounted sentence of 16 years in respect of the Dalrymple 1 conspiracy. This was half of the term of imprisonment of 32 years imposed on the Applicant.

By way of his Notice of Appeal, the Applicant sought leave to appeal from his sentence on the basis of a number of asserted errors in the factual findings made by the sentencing judge which contributed to her Honour’s conclusion that the Applicant was senior to Person A in the hierarchy of responsibility in respect of the Dalrymple 1 conspiracy and on the ground that the sentence imposed gave rise to a justifiable sense of grievance given the undiscounted indicative sentence in respect of Person A’s involvement in the Dalrymple 1 conspiracy.

The Court held (Bell CJ, Davies J and Wright J agreeing) granting leave to appeal and allowing the appeal:

  1. The sentencing judge erred in finding that the Applicant had offered “what was arguably the most important role after the offender’s in the Australian operation to Person A, without Gutterball’s sanction.” On the whole of the evidence, the “offer” was not concrete and was more in the nature of a sounding out and it was not open to the sentencing judge to reach the conclusion that it had been made “without Gutterball’s sanction” beyond reasonable doubt: [48]-[50].

  2. Notwithstanding the successful challenge to an aspect of sentencing judge’s fact finding, the Applicant’s overall role was more senior to that of Person A which was an important matter to take into account when considering an adequate punishment for the offence. There were also significant differences in the subjective cases of Person A and the Applicant: [83]-[84].

  3. Consideration of parity required the differences in the subjective and objective cases of Person A and the Applicant to be taken into account but did not relieve the sentencing judge of the need to give effect to the parity principle as between co-offenders where their roles were sufficiently similar so as to bear meaningful comparison: [14]-[24], [85].

Adams v R [2018] NSWCCA 139, Afu v R [2017] NSWCCA 246, Borg v R [2019] NSWCCA 129, Cameron v R [2017] NSWCCA 229, Contos v R [2022] NSWCCA 92, Daw v R [2017] NSWCCA 327, Downes v R [2020] NSWCCA 167, DS v R [2014] NSWCCA 267, Fenech v R [2018] NSWCCA 160, Green v The Queen (2011) 244 CLR 462, Hili v The Queen (2010) 242 CLR 520, Huckstadt v R [2016] NSWCCA 22, Keen v R [2024] NSWCCA 157, Lowe v The Queen (1984) 154 CLR 606, Markarian v The Queen (2005) 228 CLR 357, Martellotta v R [2021] NSWCCA 168, Miles v R [2017] NSWCCA 266, Postiglione v The Queen (1997) 189 CLR 295, Regina v Pan [2005] NSWCCA 114, Rosenberg v R [2022] NSWCCA 295, Tran v R [2017] VSCA 346, Tuivaga v R [2015] NSWCCA 145, Weiss v R [2020] NSWCCA 188, Wilson v R [2008] NSWCCA 245, Wong v The Queen (2001) 207 CLR 584, Youkhana v R [2011] NSWCCA 37, referred to.

  1. Taking into account the matters required to be taken into account by s 16A(2) of the Crimes Act 1914 (Cth), and having regard to other considerations, including the sentence imposed on Person A, the Applicant was resentenced to a term of 22 years imprisonment, commencing on 22 January 2019 and expiring on 21 January 2041, with a non-parole period of 13 years, expiring on 21 January 2032: [88].

JUDGMENT

  1. BELL CJ: On 6 March 2020, following a 20 day trial in the Supreme Court of New South Wales before Wilson J (the sentencing judge) and a jury, the Applicant, Darren Mohr, was found guilty of a single count of conspiring to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). That offence carried a maximum sentence of life imprisonment and/or a fine of 7,500 Commonwealth penalty units.

  2. On 3 July 2020, the Applicant was sentenced to a term of 32 years imprisonment commencing on 22 January 2019, with a non-parole period of 18 years, expiring on 21 January 2037: R (Cth) v Mohr [2020] NSWSC 871 (sentencing judgment or ROS).

  3. Although the Applicant’s Notice of Intention to Appeal was filed on 16 July 2020, his Notice of Appeal was filed more than 12 months later on 27 March 2024 which was 3 years and 8 months after his sentencing date. The Crown did not oppose the grant of an extension of time to appeal pursuant to the Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3) and 3.5(5) and the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act), s 10(1)(b). An extension of time was granted at the commencement of the hearing of the application for leave to appeal.

  4. The Crown case at trial was that, between about 1 May 2016 and 5 November 2016, the Applicant was one of six co-conspirators in a conspiracy known as the “Dalrymple 1 conspiracy”. A person identified in the evidence as “Gutterball” was the principal of the conspiracy from his base in Thailand. The conspiracy concerned the planned importation of 500kgs of cocaine from Chile to Australia by using a fishing vessel, the Dalrymple, to collect drugs from a Chilean ship in international waters off Fiji. Although the Dalrymple reached the designated rendezvous point and waited for the Chilean ship, it did not appear and the Dalrymple returned to Sydney empty.

  5. The Applicant was the only co-conspirator to plead not guilty and, following his conviction, was the last of the co-conspirators to be sentenced. Three of the co-conspirators gave evidence in the Applicant’s trial. The evidence of one of the co-conspirators, who, consistent with the sentencing judge’s approach, will be referred to as “Person A”, was central to the Crown case and his evidence was accepted and drawn upon heavily by the sentencing judge in making factual findings in relation to the Applicant’s role in the conspiracy.

  6. Person A had been charged with and pleaded guilty to three charges of conspiracy to import a commercial quantity of a border-controlled drug. The three charges concerned five conspiracies, including the Dalrymple 1 conspiracy. The Applicant was not involved in the other conspiracies to which Person A pleaded guilty.

  7. Person A was sentenced by Wilson J on 14 December 2018 and received an aggregate term of imprisonment of 22 years and 6 months, commencing on 25 December 2016, with a non-parole period of 14 years expiring on 24 December 2030: R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin [2018] NSWSC 1953 (R v Person A). Her Honour’s indicative sentence in relation to Person A’s involvement in the Dalrymple 1 conspiracy was, after allowing for discounts for an early plea and co-operation, 8 years imprisonment.

  8. Subsequent to the Applicant’s sentencing, Person A brought a successful appeal against his sentence: Decision restricted [2023] NSWCCA 257 (Person A v R). He was resentenced to an aggregate sentence of 19 years imprisonment, with a non-parole period of 12 years and 3 months, expiring on 24 March 2023. Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), given that an aggregate sentence was being imposed, the Court indicated that the sentence that would have been imposed in respect of Person A’s involvement in the Dalrymple 1 conspiracy was 7 years and 2 months. Again, given Person A’s early guilty plea and cooperation for which he obtained sentencing discounts, this indicative sentenced translated to an undiscounted sentence of 16 years in respect of the Dalrymple 1 conspiracy. This was half of the term of imprisonment of 32 years imposed on the Applicant.

  9. In sentencing the Applicant, the sentencing judge noted (at ROS [4]) that there was a “significant contest between the Crown and the offender as to the facts that should be found by the Court”. Her Honour added that the jury must have accepted the evidence of Person A, “at least as it was relevant to the elements of the offence, and rejected the account of events given by the offender”: at ROS [6].

  10. By way of his Notice of Appeal, the Applicant sought leave to appeal from his sentence on the basis of a number of asserted errors in the factual findings made by the sentencing judge and on the ground that the sentence imposed gave rise to a justifiable sense of grievance given the undiscounted indicative sentence in respect of Person A’s involvement in the Dalrymple 1 conspiracy (the parity ground).

  11. The Applicant’s first four grounds of appeal were ultimately directed to attacking a series of findings which contributed to the sentencing judge’s conclusion that the Applicant was senior to Person A in the hierarchy of responsibility in respect of the Dalrymple 1 conspiracy. But the parity ground was pressed even if those discrete challenges did not succeed.

  12. The Applicant’s attack on the sentence could thus be summarised as follows:

  1. Person A was either more or equally “senior” to the Applicant in terms of their respective roles in the Dalrymple 1 conspiracy, and it was not open to the sentencing judge to conclude otherwise;

  2. this was a material error in the sentencing process and, on the assumption that the error was corrected, the difference between Person A’s notional (indicative) sentence in respect of the Dalrymple 1 conspiracy and that of the Applicant was even more stark, even allowing for other factors affecting the sentencing of the two offenders;

  3. on a resentencing, and fully allowing for the seriousness of the offending and the high degree of objective criminality, parity dictated a far lower sentence than that imposed by the sentencing judge; and

  4. even if her Honour did not err in the factual conclusions the subject of attack in appeal grounds 1-4, and her Honour was correct to identify the Applicant as more senior than Person A in the Dalrymple 1 conspiracy, the sentence imposed on the Applicant, which was twice as long as that imposed on Person A, gave rise to a justifiable sense of grievance even allowing for other factors affecting the sentencing of the two offenders.

  1. It is convenient first to set out the relevant principles in relation to the important principle of parity in sentencing for it was to that principle that the thrust of the Applicant’s argument was directed.

The parity principle

  1. The parity principle of sentencing requires there should not be a disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance: Postiglione v The Queen (1997) 189 CLR 295 at 301, 309, 338; [1997] HCA 26 (Postiglione). In a passage of central importance, Dawson and Gaudron JJ observed (at 301) that:

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.” (Footnotes omitted.)

  1. The disparity in question must be “marked” but need not be “gross” or “glaring” to attract appellate intervention: Miles v R [2017] NSWCCA 266 at [9]; Cameron v R [2017] NSWCCA 229 at [79]-[90]; Daw v R [2017] NSWCCA 327 at [19]; Fenech v R [2018] NSWCCA 160 at [30]; Borg v R [2019] NSWCCA 129 at [90]-[91]; Downes v R [2020] NSWCCA 167 at [40], [57]; Weiss v R [2020] NSWCCA 188 at [89]-[90] cf. Afu v R [2017] NSWCCA 246 (Afu) at [15]; Tuivaga v R [2015] NSWCCA 145 (Tuivaga) at [56]. More is required than mere “arguable” disparity and a degree of latitude is to be afforded to the decision of the sentencing judge, especially in light of the fact, recognised in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27], that “there is no single correct sentence.”

  2. Importantly, the parity principle is free standing and does not depend upon a conclusion that the sentence under appeal is otherwise excessive: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [32]. Conversely, the Court is not bound to intervene if the sentence imposed upon the co-offender is manifestly inadequate and intervention would “produce a sentence disproportionate to the objective and subjective criminality involved”: Youkhana v R [2011] NSWCCA 37 at [49] citing Regina v Pan [2005] NSWCCA 114 at [35] and Wilson v R [2008] NSWCCA 245 at [39]; Rosenberg v R [2022] NSWCCA 295 at [11].

  3. The parity principle is of cardinal importance not only for an offender with a sense of grievance that is justifiable, but for broader reasons concerning the interests of the administration of justice and public confidence in it. As Sir Anthony Mason pointed out in his dissenting but seminal decision in Lowe v The Queen (1984) 154 CLR 606 at 610-611; [1984] HCA 46 (Lowe):

“[j]ust as consistency in punishment—a reflection of the notion of equal justice—is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”

  1. Systematic fairness is an element of the rule of law and the parity principle has been said to have its foundation in the norm of equality before the law: Green at [28]-[30].

  2. Perfect consistency is an elusive end for a variety of reasons: Postiglione at 336 (Kirby J). A comparison of like with like is not and can never be an exercise in precision but is one of necessarily imprecise approximation because of the inevitable variability of characteristics as between offenders such as age, backgrounds, antecedents and particular roles in the commission of the same offence. Yet, as Gleeson CJ observed in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6], although discretionary decision-making carries with it the probability of some degree of inconsistency, “there are limits beyond which … inconsistency itself constitutes a form of injustice.”

  3. In determining whether the parity principle has been observed, the different circumstances of co-offenders, including degrees of criminality, must be considered: Postiglione at 301-302. Thus, “the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances”: Green at [28].

  4. The parity principle does not and should not involve a mechanical or mere mathematical process of comparison: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49]. It is necessarily far more nuanced: see, for example, Adams v R [2018] NSWCCA 139 at [85], citing Tran v R [2017] VSCA 346 at [24]. Both logic and reality are at play: Lowe at 613; Green at [32]. More is involved than a simple comparison of head sentences: Postiglione at 302. A comparison of all relevant factors, including antecedents, may support a difference in terms of the sentences imposed, although it may not support the extent of the difference in the sentences under consideration.

  5. As expressed by this Court in DS v R [2014] NSWCCA 267 at [39]:

“The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be ‘gross’, ‘marked’ or ‘glaring’.”

The last sentence of this passage must be doubted in light of the authorities referred to at [15] above.

  1. In considering whether there is unjustified disparity, an appellate court “will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders”: Green at [32]. There may be cases, of which Postiglione was an example, where co-offenders have been sentenced by different judges.

  2. The fact that the sentencing of co-offenders has been undertaken by the same judge has been said to tend against appellate intervention: Tuivaga at [55]-[56]; Contos v R [2022] NSWCCA 92 at [86]; Huckstadt v R [2016] NSWCCA 22 (Huckstadt) at [90]. That is because the sentencing judge is “fully aware of the circumstances of the offending, as well as the respective subjective cases” (Afu at [15]) and is “in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way”: Huckstadt at [90]. These observations may need to be qualified to some extent, however, where the co-offenders have not all been sentenced at the same time and on the same body of evidence: as to the latter point, see Martellotta v R [2021] NSWCCA 168 at [58]. Moreover, the fact that the relevant sentences have both been imposed by the same judge does not relieve the Court from the responsibility of analysing the differences in criminality and subjective circumstances to determine whether the proportion between the sentences leaves the applicant with a justifiable sense of grievance: Cameron at [83]; Keen v R [2024] NSWCCA 157 at [146].

Facts relevant to sentencing of the Applicant

  1. In reaching her conclusion as to an appropriate sentence for the Applicant, the sentencing judge undertook a detailed examination of the facts of the offence, consistent with the verdict of the jury, noting that there was a “significant contest between the Crown and the offender as to the facts that should be found by the Court”: at ROS [3]-[4]. Her Honour went on to say (at ROS [5]-[7]):

“No more could be taken with certainty from the jury’s verdict than that its members accepted beyond reasonable doubt that the offender had agreed with one or more of the individuals named on the indictment as co-conspirators to import a commercial quantity of cocaine, that he intended to effect that agreement, and that some overt act was taken in furtherance of it.

Necessarily, the jury must have accepted the evidence of Person A, at least as it was relevant to the elements of the offence, and rejected the account of events given by the offender as one which was not reasonably possible.

Beyond those bare propositions, the facts established by the evidence are for the Court to determine, bearing in mind that conclusions adverse to the offender must be established on the evidence to the criminal standard, whilst matters favourable to him are to be established on the balance of probabilities.”

  1. In Assam v R [2019] NSWCCA 12 at [133], Bathurst CJ observed that:

“It is trite to observe that it is for the sentencing judge to determine the facts upon which an offender is to be sentenced. This Court’s authority to intervene in fact finding is dependent upon the demonstration of error. To demonstrate error, it must be established that the finding was not open to the sentencing judge. It is not a matter of this Court substituting its own findings for those of the sentencing judge. Of course, findings adverse to the offender, over and above the elements of the offence, must be established beyond reasonable doubt.”

  1. The final sentence of this passage has its foundation in what the High Court said in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at [27], namely that the court “may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt” (emphasis in original).

  2. The sentencing judge accepted the evidence that had been given by Person A in the Applicant’s trial was honest, generally accurate and reliable: ROS [8]-[9]. This assessment was not challenged on appeal.

  3. The Applicant’s role in the conspiracy predated that of Person A, and involved two trips to Thailand where it was “reasonable to infer that [he] met or otherwise communicated with Gutterball” (at ROS [76]), a trip to Chile, meetings with Person A in Sydney, and trips from Queensland to Sydney where he had further dealings with Person A.

  4. The sentencing judge made the following findings in respect of the Applicant’s involvement in the conspiracy:

  1. he travelled to Thailand on two occasions, at least partly for the purposes of the conspiracy, where it was reasonable to infer that he met or otherwise communicated with Gutterball concerning the proposed importation: at ROS [16], [33] and [76];

  2. on 2 May 2016, he had an initial meeting with Person A at Steyne Park in Sydney: at ROS [12]-[14];

  3. on 8 July 2016, he “told Person A that the drugs were pre-sold and there would be no problem with payment” and that, despite that, Person A “said that, if he couldn’t be paid ‘upfront’, he would ‘hold the amount of product equal to [his group’s] share’ until he was paid. The offender said that he ‘didn’t have a problem with that as long as Person A didn’t sell the product’ … as he and Gutterball did not want the market flooded”: ROS [22];

  4. “[t]hat agreement was made without reference to Gutterball”: ROS [22];

  5. he was sent to Chile by Gutterball to “organise the logistics” and there met with those who were responsible for packaging and shipping the cocaine. His role was “to [oversee] and advance the shipment of cocaine from there”: ROS [24], [27]-[28].

  6. on returning to Sydney, he met with Person A and conveyed information to him derived from his Chilean travel including giving him “details for direct communication with the Chilean vessel, and advising him that he and Gutterball did not need a representative on the Australian boat: ROS [29];

  7. he travelled from Queensland to Sydney on 13 October 2016 to check on the progress in readying the Dalrymple for voyage and, once that had been confirmed, paid Person A the $50,000 he had requested of Gutterball, to pay for fuel and other supplies: ROS [78];

  8. when informed that the Dalrymple was experiencing mechanical problems, he offered information to assist in getting the vessel underway again: ROS [80];

  9. after the failure of the venture, he reassured Person A that he would be looked after, and conveyed $40,000 to another of the co-conspirators to be passed onto Person A: ROS [60]-[61], [81];

  10. he had continuing communications with Gutterball: ROS [31];

  11. he had “endeavoured to mediate” conflict between Gutterball and Person A: ROS [39];

  12. he gave instructions to Person A as to the urgency of the Dalrymple’s departure: ROS [47], [50]; and

  13. he expected to receive a very substantial amount of money for his participation, in the millions of dollars: ROS [82].

  1. The Crown pointed out that Person A’s evidence as to the Applicant’s account of his trip to Chile included that the Applicant had:

  1. met "drug operators" and spent a couple of days in the jungle with them;

  2. inspected the vessel;

  3. spoken to the captain of the vessel;

  4. been shown where the drugs were going to be stored; and

  5. been advised that the drugs would be wrapped in 40kg blocks.

  1. There was also evidence that the Applicant had learnt whilst in Chile that the Chilean ship would have the benefit of a Chilean naval escort in leaving Chilean waters and reported to Person A that the people involved were “good operators and very serious people”.

  2. As to the objective gravity of the offence, the sentencing judge held that the conspiracy “represents criminality of a very high order”: at ROS [63]. Although her Honour considered that the amount of cocaine (500kgs with a value of between $106 and $150 million) from which the conspirators sought to profit was but one feature pointing towards the seriousness of the crime, she reasoned that it was “an indicator of the assets available to the international syndicate (for whom, I am satisfied, the offender was the Australian representative), of the sale and scope of the conspiracy, and of its highly developed nature”: at ROS [64]. Other features noted by the sentencing judge included the fact that the conspiracy involved a “diverse group of conspirators with specific roles to play” (at ROS [65]), was underpinned by “extensive and thorough” planning and preparation (at ROS [66]), was “highly organised”, spread across “three countries” and “to the detriment of the community” (at ROS [67]) and “did not fail to achieve its end through any want of planning or action by the conspirators”: at ROS [68].

  3. At ROS [69]-[83], the sentencing judge added as to the objective seriousness of the offending that:

“[69]    Within the group working to achieve the object of the conspiracy, I am satisfied that the offender had a very significant, and very important role, as the representative of Gutterball in Australia, trusted with the co-ordination and oversight of both the local and international operations, and with knowledge of all of the most senior members of the conspiracy, and the overall plan to bring about its object. Gutterball was the apex of the conspiracy, with the offender as his trusted lieutenant. Of these conspirators about whom something is known … I have concluded beyond reasonable doubt that the offender was second in the structure of power and authority to Gutterball, and the most senior of the Australian conspirators.

[70]    It is true, as the offender agues, that Person A was very heavily involved in the implementation of the conspiracy, and took or directed almost all of the practical steps necessary to collect the drugs at sea and bring them to Australia. That does not, however, mandate a conclusion that Person A was senior to the offender. On the contrary, on the credible evidence, the offender was not only involved at an international level to bring about the importation, where Person A was not, he had the authority to direct Person A and the Australian operation, and considerable autonomy in performing that role.

[71]    It was the offender, as Gutterball’s representative who met with Person A in early May to determine his suitability for the importation, and offer him a role in bringing the drugs to Australia from a location at sea. Having met Person A on 2 May 2016, at Steyne Park, the offender invited him to work with him and Gutterball. Since the offer to Person A was made at the meeting, it was made without any prior approval from Gutterball. The offender was sufficiently trusted, and sufficiently senior, to offer what was arguably the most important role after the offender’s in the Australian operation to Person A, without Gutterball’s sanction.

[72]    The offender continued to meet or exchange Blackberry messages with Person A and Gutterball as necessary to further conspiracy.

[73]    Significantly, he had sufficient authority to approve the proposal made by Person A that he would hold a portion of the cocaine until such time as he was paid for his involvement. The offender gave approval for that without first consulting Gutterball. That he had sufficient level to approve an arrangement of that nature, affecting as it did the integrity of the cargo, and touching upon the mechanism for payment of conspirators, bespeaks a high level of authority.

[74]    Very significantly, the offender travelled to Chile in August 2016 to meet with those who were responsible for packaging and shipping the cocaine, to review arrangements being taken there. He met with the ‘drug operators’, saw how the cocaine was to be packaged, inspected the vessel being used to transport the cargo, and was shown the measures being taken to secrete it on board the Chilean ship. Since this journey was undertaken shortly before the vessel sailed for Fiji and its rendezvous en route with the Dalrymple, it is reasonable to infer that the offender made the final inspection for the importer, Gutterball, prior to the cargo being shipped.

[75]    On returning to Sydney the offender met with Person A the very next day to convey all of the necessary information to him derived from his Chilean journey to allow Person A to ready the Dalrymple and crew to collect the cocaine.

[76]    The offender also travelled to Thailand at least partly for the purposes of the conspiracy. It is reasonable to infer that the offender met or otherwise communicated with Gutterball concerning the proposed importation when in Thailand.

[77]    When conflict about the speed with which it was necessary to ready the Dalrymple to sail jeopardised the arrangements, it was the offender who played a role in calming the argument, urging Person A to understand the stress that Gutterball was subject to.

[78]    He travelled from Queensland to Sydney on 13 October 2016 to check on the progress in readying the Dalrymple for its voyage and, once that had been confirmed, paid Person A the $50,000 Person A had asked of Gutterball, to pay for fuel and supplies.

[79]    On the evening of 13 October 2016 the offender returned to the Dalrymple, directing Person A to both set sail immediately, and to do so without [another of the co-conspirators] and a female crew member on board. He also spoke with [another of the co-conspirators], to ascertain his capacity to manage the crew.

[80]    When he was later told the Dalrymple was experiencing mechanical problems, he offered information to assist in getting the vessel underway again.

[81]    After the failure of the venture, it was the offender who reassured Person A that he would be looked after, and conveyed $40,000 to [another co-conspirator] to be passed on to Person A.

[82]    The sole motivation for the offender’s participation in this conspiracy was the acquisition of a very substantial amount of money. Person A understood that the offender was to be paid in cocaine, at a weight of 25 kilograms, and with a value of at least five million dollars. Whether it was precisely that amount or not probably matters little; I am satisfied that the offender expected to receive an amount in the millions of dollars for his role in this crime.

[83]    This was offending of the highest order in which, of the known conspirators, the offender was second only to Gutterball. His participation was critical to the success of the venture.”

  1. The sentencing judge acknowledged (at ROS [86]) that the Applicant had been “subjected to conditions of bail that amounted to house arrest” for a period of “a little less than eight months” and that that was a feature to be taken into account on sentence.

  2. At ROS [126], the sentencing judge held that the gravity of the crime was such that only a custodial sentence was available. Her Honour then held that the Applicant entered into the conspiracy “for no better reason than the lure of money, and the prestige and lifestyle that money could buy him”: at ROS [127]. Although the sentencing judge acknowledged that the Applicant’s health and associated psychological conditions (which her Honour held at ROS [89] were “devastating” and would have had “a profound psychological impact upon the [Applicant] and his sense of self”) were a relevant feature in that they would make his conditions in custody more onerous, her Honour found that they could not fully explain his role in the offending: at ROS [128], [148]-[150].

  3. As to parity, the sentencing judge again recorded her “conclusion that the offender’s role was senior to that of either of [Person A and another of the co-conspirators]” (at ROS [136]) and noted that there were “material differences in the objective gravity of the role played by each man in the conspiracy”: at ROS [137]. Her Honour added that:

“[138]    Person A was responsible for all aspects locally of the voyage to collect the cargo at sea. He acquired the boat to be used, equipped it and arranged for its crew, and had significant input into the location of the rendezvous point. He had virtually complete autonomy in all matters connected with the Dalrymple and the role it was to play. He had no involvement at all with the international aspects of the scheme; he had no knowledge of or autonomy in the arrangements for the preparation and dispatch of the drugs; and no knowledge of the overall structure of the syndicate responsible for the drugs. He had no knowledge of or role in the receipt of the cargo in Australia. Although very significant, his role was confined to the collection of the cargo at sea, and delivery to Australian shores.

[139]    The offender by contrast, was involved in and knowledgeable of these things, something established most clearly by the evidence of his trip to Chile. This was a trip precipitately taken, of short duration, and coinciding precisely with the lead up to the departure of the cargo from Chile, and Gutterball’s advice to Person A that he was sending someone to Chile to check on the operation there…

[140]    The offender’s role in the international supervision of the operation to export cocaine from Chile and import it to Australia elevates his position to one that goes well beyond a simple intermediary in Australia between Gutterball and Person A.”

In these circumstances, the sentencing judge reasoned that the principle of parity had a “limited” operation: at ROS [141].

  1. The sentencing judge next turned to consider the matters to which the Court must have regard in sentencing for a federal offence contained in s 16A of the Crimes Act 1914 (Cth) (Crimes Act).

  2. As to remorse, the sentencing judge was “not able to accept that [the Applicant’s] regret amounts to true remorse for the crime he committed”: at ROS [145]. However, her Honour accepted (at ROS [147]) that the offender regretted his actions, “even if principally because of the consequences to him” and that, “the beginnings of insight are to be found in that regret.” The sentencing judge additionally accepted that the Applicant’s prospects for the future were “reasonably positive”: at ROS [151].

  3. In relation to deterrence, the sentencing judge held that, although her finding as to the Applicant’s prospects of rehabilitation mitigated to some degree the need for a sentence with a strongly deterrent effect, the “need for the sentence to deter others by showing would-be offenders of what lies in store for drug offenders of this ilk remains, and must be given ‘chief weight’”: at ROS [157].

Factual challenges

  1. The power of this Court to interfere with findings of fact made by the sentencing judge is limited. The Applicant must either demonstrate that a particular finding was not open on the evidence or that there was error in the sense referred to in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (House v The King). However, the Court has no power to substitute its own findings for those of the sentencing judge: R v O’Donoghue (1988) 34 A Crim R 397 at 401; Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [8], [24]; Camm v R [2009] NSWCCA 141 at [68]-[70]; Cao v R [2010] NSWCCA 109 at [48].

Ground 1

  1. By Ground 1 of his appeal, the Applicant contended that the sentencing judge “erred in concluding that the applicant had made an offer to Person A to bring drugs into Australia from a location at sea and that that offer had been made without prior approval from Gutterball, when such a finding was not open”. This was an attack on ROS [71] which has been reproduced in [34] above. Particular focus was placed by Mr Walker AO SC, who appeared with Mr Lange for the Applicant, on the final sentence of ROS [71], namely:

“The offender was sufficiently trusted, and sufficiently senior, to offer what was arguably the most important role after the offender’s in the Australian operation to Person A, without Gutterball’s sanction.” (Emphasis added.)

  1. The Applicant submitted that there was no evidence that the Applicant made any offer at the 2 May 2016 meeting in Steyne Park for Person A to work on behalf of the syndicate, let alone one to collect drugs from sea. Moreover, it was put that the evidence did not permit the conclusion that the Applicant had authority to make any such offer without reference back to Gutterball.

  2. At ROS [12] and [14], the sentencing judge found that, following a meeting with another of the co-conspirators in which Person A was asked (but declined) to travel to Thailand to meet with Gutterball and discuss “an importation of drugs by sea”, a meeting was arranged between the Applicant and Person A at Steyne Park on 2 May 2016. Person A gave the following evidence as to the content of his conversation with the Applicant during that meeting:

“Q.  After he introduced himself to you, what did you say to him?

A.  We had a general conversation about what he told me, that he owned a coffee shop in Bondi Junction - sorry, he used to own a coffee shop in Bondi Junction. I told him about my experiences of fishing. It was a general conversation like that. It was just more or less a get together type thing.

Q.  Was there a discussion about doing work during that conversation?

A. … My recollection is it was a general conversation. It was not about picking up any drugs or anything like that. That’s my recollection. It was about the possibility of doing some work for them. If I was interested in doing some work for them. That's my recollection. It was about the possibility of doing some work for them. If I was interested in doing some work for them.

…

Q.  How did he respond when you said ‘I will have to speak to Joe’?

A.  My recollection is he told me that his friend will make contact with me. His friend would make contact with me.

…

Q.  Did you talk about doing work during that conversation?

A.  Darren asked me whether I would be interested in doing some work for them.

Q.  What work did you understand he was talking about?

A.  There was nothing specific said about picking up drugs or anything like that, it was just would I be - I was there for the intentions of being able to pick up drugs, because that's why I was going there, but there was nothing - at that meeting there was nothing said about can you pick up some drugs for us, it was just the words, ‘are you interested in doing some work for us’. I thought I knew what it meant but the words didn't come out of Darren's mouth.

Q.  Who did you understand the ‘us’ was?

A.  His contact.” (Emphasis added.)

“Joe” was Joseph d’Agostino.

  1. This passage of evidence certainly involved the Applicant asking Person A whether he was interested in doing some work “for us” and Person A undoubtedly understood the context of that question. Based upon this evidence (and the Crown pointed to no further relevant evidence), the Applicant’s interaction with Person A at this meeting was more in the nature of an initial inquiry as opposed to a precise or specific offer to join the syndicate. Person A’s evidence was that it was about the “possibility of doing some work for them”. Because it was not an offer of the kind described by her Honour, the significance of it being made “without Gutterball’s sanction” diminishes, even if the engagement with Person A in fact was without Gutterball’s sanction. On the evidence, the exchange was an initial sounding out which led to Person A being put in touch directly with Gutterball. As the following passage of transcript illustrates, no definite offer of the kind the sentencing judge found was made by the Applicant was in fact made. Person A gave evidence as to the content of messages he received from Gutterball a couple of days after the 2 May 2016 meeting with the Applicant:

“Q. What was the subject of that message?

A.  It was if I was interested in doing some work for them, and the fact that -and I recall that he didn't want to deal too much through [Joseph D’Agostino].

… [H]e wanted to deal directly with me.

Q. You said he asked if you were interested in doing some work for him?

A. Yes.

Q. What was the nature of the work?

A. Well, at that stage, there was nothing specifically discussed I remember. I could be wrong, but I remember it took a little while before things were discussed, drugs were discussed and options were discussed, but it was more or less, you know, if I had any interest in taking it to the next step and, if I did, they didn't want to be dealing with Joe. The less people they dealt with the better it was.”

  1. Person A then gave the following further evidence about those communications:

“Q. What was your understanding of the purpose of that contact from Gutter Ball around 4 May, why was he contacting you then?

A.   I understood Gutter Ball was the boss. That’s certainly the way it looked to me.

Q.  The boss of what?

A.  Giving the instructions in relation to this job. So, Gutter Ball was giving me all the initial instructions and from time to time I met Darren [the Applicant], but Darren was also in the loop on the BlackBerry because he was involved in the chain of emails after my initial discussions with Gutter Ball.”

  1. He later elaborated as follows:

“Q. You said ‘there were initial discussions with Gutter Ball, was jobs over in the west, like off the west coast of Australia’?

A.  Yes.

Q.  And then you said they were the initial discussions, do you remember that evidence?

A.  Yes.

Q.  To make sure we are clear on the sequence, was it the case that there were initial discussions about how this job would look?

A.  No, the initial discussions - sorry, I may have misunderstand you, but the initial discussions were about my ability to do work for them and the work they initially were suggesting suited them was over in the west. And then that became over in the east.

Q.  Who was ‘they’ who [was] discussing that?

A.  Most - most, if not all, was coming from Gutter Ball and probably, I think it would have been maybe the odd time from … Joe because at that time he was still talking to me.”

  1. The Steyne Park meeting in May 2016 was undoubtedly significant as an initial step in the recruitment of Person A and, as the sentencing judge held at ROS [71], the Applicant attended that meeting “as Gutterball’s representative”. This finding is in at least a degree of tension with her Honour’s conclusion that the Applicant offered Person A a senior role in the syndicate “without Gutterball’s sanction”. On the whole of the evidence, the “offer” was not concrete and more in the nature of a sounding out. Further, unless her Honour simply meant by the phrase “without Gutterball’s sanction” that the Applicant did not first revert to Gutterball with his impressions of Person A before suggesting that “his friend would make contact with” Person A, there was no basis in the evidence for concluding that the Steyne Park interaction and what the Applicant said on that occasion was “without Gutterball’s sanction”. It may or may not have been but it was, with respect, not open to her Honour to reach this conclusion beyond reasonable doubt.

  2. It was also a conclusion that was material, and an error made in the exercise of the sentencing discretion: House v The King at 504-505. ROS [71] appeared in the course of her Honour’s analysis of the Applicant’s role in the conspiracy, in support of her conclusion that the offender was second in the structure of power and authority to Gutterball, and the most senior of the Australian conspirators.

  3. Ground 1 of the appeal should therefore be upheld, and the Applicant must be resentenced in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]. That does not obviate the need to consider appeal grounds 2-4 which also allege errors in the sentencing judge’s fact finding, as the resentencing must proceed in accordance with the sentencing judge’s findings of fact. Resolution of challenges to those findings must necessarily precede resentencing.

Ground 2

  1. By ground 2 of his appeal, the Applicant submitted that the sentencing judge, at ROS [73], “erred in concluding that the applicant had sufficient authority to approve [Person A’s] proposal that he would hold a portion of the drugs until such time as he was paid for his involvement, when such a finding was not open.” ROS [73] is reproduced in [34] above.

  2. It was submitted that Person A’s evidence on this subject reflected “no more than the applicant’s musings about [Person A’s] demands and certainly [said] nothing about the applicant’s authority to act on behalf of Gutterball.”

  3. The Applicant pointed to the following passage of Person A’s evidence:

“Q. Who spoke about prepayment?

A.   Darren told me that the drugs were pre-sold and payment would not be a problem.

Q.   Payment to who?

A.   To me, for my cut for the delivery of the drugs from the pick-up point to back to shore.

Q.   What was your cut going to be?

A.   I knew what it was, I'm just not sure when we discussed it, but I'm aware it was going to be 10 per cent.

Q.   Who did you discuss payment with?

A.   With Darren.

…

Q.   At that meeting were you concerned about whether you'd get paid?

A.   I'm always concerned and that was the reason - oh, sorry, I told him that if we couldn't get paid up front, that I would hold the amount of product equal to our share and when they would pay me, then we could give them the product.

So it was like a security for payment. He didn't have a problem with that as long as we didn't sell the product.

Q.  I will take you back. You told him that at that meeting?

A.  Yes.

Q.  When you told him, ‘we want to hold some product’, what did he say to you?

A.  He didn't give me a definite answer, but I recall that he didn't seem to have a problem. For him, he seemed [to think] that was fair. You know, the only proviso was that they didn't want us to sell the product. They just wanted us to hold it until they gave us the money.

Q.  How did you know that was the only proviso?

A.  That was the only proviso he put to me.” (Emphasis added.)

  1. Notwithstanding Person A’s statement that “He didn’t give a definite answer” (upon which the Applicant placed some emphasis), read as a whole, this passage of the evidence provided a basis for her Honour’s observations in ROS [73]. Her Honour’s conclusions in that paragraph were in my view open. The fact that Person A said later in his cross examination that, if he went to Thailand, he “would be telling them in person that we would have to hold some product until we got paid” does not detract from this conclusion. That evidence was not consistent with a lack of apparent agreement by the Applicant with what Person A had put to him but, rather, evidence that Person A would have emphasised a matter he had already raised with the Applicant without demur and apparent acceptance.

  2. I would reject Ground 2.

Ground 3

  1. Ground 3 was that it was not open to the sentencing judge to conclude that “the applicant’s role involved the international supervision of the operation to export cocaine from Chile and import it to Australia”. It is important to note precisely what was held in ROS [140], namely that:

“The offender’s role in the international supervision of the operation to export cocaine from Chile and import it to Australia elevates his position to one that goes well beyond a simple intermediary in Australia between Gutterball and Person A.”

  1. There is a subtle difference between the formulation of the ground of appeal and ROS [140]. The latter was to the effect that the Applicant had a role in the international supervision of the operation whereas the former was to the effect that the Applicant’s role was to supervise the whole operation.

  2. It was well open to the sentencing judge to conclude that the Applicant had a role in the international supervision of the operation. It is sufficient to refer to the unchallenged factual findings referred to in [30] and [34] above to support this conclusion. Those findings included that the Applicant was sent to Chile by Gutterball to “organise the logistics” and there met with those who were responsible for packaging and shipping the cocaine and reviewed their operation: ROS [24], [74]. It was also the Applicant who was on the ground in Sydney to inspect the Dalrymple and to oversee its crewing arrangements and its departure from Sydney for Fiji. His role continued when issues arose with the Dalrymple’s voyage: see [30] above.

  3. The Applicant’s submission that there “was simply no evidence that the applicant was involved in the arrangements for the preparation and dispatch of the drugs” must be rejected, as must Ground 3.

Ground 4

  1. By Ground 4, the Applicant argued that it was not open to the sentencing judge to find that the Applicant “was second in the structure of power and authority to Gutterball and his role was ‘senior’ to that of Person A”. This was at the heart of the factual dispute between the parties. In this context, it is important to recall the constraints on appellate review referred to in [41] above.

  2. It is certainly correct that the sentencing judge concluded that the Applicant was second in the structure of power and authority to Gutterball and that the Applicant’s role was senior to that of Person A: see [34] and [37] above.

  3. It was submitted that Person A was a free agent who joined the conspiracy, bringing his own skills and resources, as evidenced by his involvement in multiple other conspiracies each involving substantial quantities of border-controlled drugs and only one of which involved the Applicant.

  4. The Applicant placed reliance on the fact that, when sentencing Person A, in a finding not disturbed on his successful appeal, the sentencing judge had described his role in the conspiracy as “pivotal”. Her Honour said in R v Person A at [347]-[350]:

“For this offence the offender reached agreement with his co-offenders … and members of an overseas syndicate based in Thailand to import into Australia about 500kg of cocaine, to be transferred at sea from a Chilean ship.

The offender was again of pivotal importance in the conspiracy. He liaised with all Australian conspirators, and had direct contact with the Thailand based conspirator known as Gutterball, including by encrypted electronic devices. He was responsible for the Australian operation, and in this role took all necessary steps to buy and fit out a boat for the collection of drugs at sea. He was responsible for securing the crew for the local vessel, and assigning roles and payment to those lower down the hierarchy.

His motivation in participating in what was a highly sophisticated conspiracy was entirely financial. His expectation was for an immediate payment of $1 million on arrival of the drugs on shore with a total of $8 million anticipated. The only thing that prevented the enormous profits expected from being realised was the failure of the international vessel to rendezvous at the meeting co-ordinates.

The offender is again at the highest level of the planning and organisation of this conspiracy.” (Emphasis added.)

  1. It is to be recalled that Person A’s sentencing occurred in December 2018, some 15 months before the commencement of the Applicant’s trial. It was a sentence which was passed by reference to agreed facts, and the sentencing judge did not have the benefit of the extensive evidence which Person A gave in the course of the Applicant’s trial and upon which her Honour drew in sentencing the Applicant and, relevantly for present purposes, drawing her conclusions as to the Applicant’s role vis-à-vis Person A. Moreover, the focus of the agreed facts for the purposes of Person A’s sentencing was his role in the conspiracy. Although some reference was made to his interactions with the Applicant, as reproduced in Person A’s sentencing judgment, those references were far less detailed as to the Applicant’s involvement than what emerged in the course of the Applicant’s trial during which Person A was in the witness box for some seven days.

  2. When one has regard to the unchallenged findings of fact set out earlier in this judgment, allowing for the fact that ground 1 of the appeal has been upheld, her Honour’s overall conclusion as to the Applicant’s role in the conspiracy was, in my view, well open to her.

  3. The Applicant was Gutterball’s “trusted lieutenant”, as the sentencing judge held, and his representative in Australia: at ROS [69]. It was he who made the initial contact with Person A. It was he who relayed critical details to Person A after his visit to Chile. It was he who discussed payment arrangements with Person A. It was he who inspected the Dalrymple at the Fish Markets and gave directions as to who was not to be on board. It was he who acted as a go-between as between Gutterball and Person A when difficulties arose with the voyage. But his involvement went well beyond these matters, including, as has already been emphasised, his trip to Chile which was to deal with logistics and his two trips to Thailand where it could be reasonably inferred that he met with Gutterball.

  4. To conclude, as the sentencing judge did, and as was open to her, that the Applicant was “second in the structure of power and authority to Gutterball and his role was ‘senior’ to that of Person A” is not to hold that Person A’s role was not also extremely important in the conspiracy. The relativities of their respective roles will be relevant on the resentencing of the Applicant.

  1. Ground 4 should be rejected.

Ground 5

  1. In light of my conclusion in respect of ground 1, and the consequent necessity for resentence, it is not necessary to deal with this ground but the discussion of the parity principle at [14]-[24] above is of relevance for the purposes of resentencing, as any resentencing of the Applicant must have regard to the sentences imposed on co-offenders. Person A is the most relevant of those co-offenders.

Resentencing

  1. The obvious gravity of the crime is such that I am satisfied, having considered all other available sentences, that only a custodial sentence is appropriate: Crimes Act, s 17A(1).

  2. I have read, had regard to and incorporated into these reasons the sentencing judge’s summary of the evidence on sentence at ROS [84]-[123]. No further evidence was led on the appeal other than the tender of medical records which made reference to “Chronic Kidney Disease”, noting that there was ambiguity as to whether there was a family history of dialysis or renal impairment due to an inconsistency between a specialist report to a general practitioner dated 30 May 2024 and nursing notes made on 8 January 2024.

  3. The resentencing of the Applicant must be based upon the sentencing judge’s findings of fact other than the finding which was the subject of the successful challenge in ground 1 of the appeal.

  4. Critical findings include those as to the Applicant’s:

  • sole motivation for participation in the conspiracy, namely the acquisition of a very substantial amount of money in the millions of dollars (ROS [82]) and “the prestige and lifestyle that money could buy him”: ROS [127];

  • choices being “further informed by his own use of cocaine from early adulthood, in circumstances where it was viewed as a ‘party drug’ and part of the social scene in which he moved”: ROS [130];

  • role as “second only to Gutterball” in the conspiracy and which went “well beyond a simple intermediary in Australia between Gutterball and Person A”: ROS [83], [140];

  • “involvement with the international aspects of the scheme”, “knowledge of or autonomy in the arrangements for the preparation and dispatch of the drugs”, “knowledge of the overall structure of the syndicate responsible for the drugs” and “knowledge of or role in the receipt of the cargo in Australia”, as established by his “short” trip to Chile at a time “coinciding precisely with the lead up to the departure of the cargo from Chile, and Gutterball’s advice to Person A that he was sending someone to Chile to check on the operation there” and travel to Thailand “at least party for the purposes of the conspiracy”: ROS [76], [138]-[139];

  • “lifelong” medical and associated psychological condition which is “significant”, “will continue to trouble the offender, possibly in a clinical sense, and very likely in a psychological sense” and “will have an impact upon the everyday conditions of custody for him, making imprisonment a greater burden on him than upon prisoners without that condition” but which was not “at the heart of the commission of this crime” and could not “fully explain his role in this crime”: ROS [128], [131], [148], [150];

  • regret for “the position in which he finds himself … and the distress that his actions have caused his family and friends” but lack of “true remorse for the crime he committed”: ROS [144]; and

  • “reasonably positive” prospects for the future, “solid work history and qualifications” and “exemplary” conduct in custody to date: ROS [151]-[152], [157].

  1. In approaching the task of resentencing, the Court must have regard to such of the matters in s 16A(2) of the Crimes Act as are relevant and known to the Court.

  2. In this regard, I note that the offence did not form part of a course of conduct consisting of a series of criminal acts, and did not result in injury loss or damage or impact on any victims. Other matters which are required to be taken into account are informed by the sentencing judge’s findings and assessments set out at [73] above and to which I have had close regard.

  3. I adopt the sentencing judge’s assessment that the conspiracy constituted “offending of the highest order in which, of the known conspirators, the offender was second only to Gutterball” and that “his participation was critical to the success of the venture”: at ROS [83]. In doing so, I note the size of the proposed importation and the sophistication and planning associated with the operation.

  4. On the question of deterrence, I also adopt the following observations of the sentencing judge at ROS [153]-[156]:

“Section 16A(2)(j) and (ja) of the Crimes Act require the Court, in common with the common law, to have regard to both specific and general deterrence.

Deterrence has been held by the High Court and by courts of criminal appeal in all states to be a most significant feature in the determination of the sentences to be imposed for drug crimes such as that committed by the offender, because of the difficulty of detecting such offences, and the social consequences that follow: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, at [64]; R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106, at [72].

Not only must the sentence imposed be one which will deter the offender from the commission of further such offences, it must ‘demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the attack made upon it. […] The extent to which a sentence recedes from the maximum in cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition’: R v Tait and Bartley (1979) 46 FLR 386 at 399.

That principle has been given effect in each of the cases to which the Court was referred for assistance with the relevant sentencing principles applicable to drug offending of a similar nature. The relevant authorities are: R v Suarez-Mejia [2002] WASCA 187; Chen & Ors v R [2002] NSWCCA 174; R v Ismunandar; R v Siregar [2002] NSWCCA 477; R v Bartle & Ors [2003] NSWCCA 329; R v Reaves [2004] WASCA 106; R (Cth) v Li & Ors [2005] NSWCCA 154; de la Espriella-Velasco v The Queen [2006] WASCA 31; Thompson v R [2007] NSWCCA 83; Melgar Sevilla v The Queen [2007] WASCA 116; Sukkar v The Queen (No 2) [2008] WASCA 2; Teng & Ors v The Queen [2009] VSCA 148; Velez v R (Cth) [2015] NSWCCA 177; R v Elfar & Golding [2017] QCA 170; I have had regard to each of those cases, in the way referred to in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [18].”

  1. In resentencing the Applicant, I give significant weight to the need for both general and specific deterrence. This was an audacious (albeit ultimately unsuccessful) endeavour to secure the import of a huge quantity of drugs into Australia. It is vitally important to deter all attempted such imports, whether they be successful or not. Drugs such as those sought to be imported represent a scourge on our society. A lengthy sentence will also effect an important element of personal deterrence to the Applicant who put aside any consideration of the obvious and damaging consequences of such an attempted importation to his fellow citizens to pursue his own enrichment.

  2. Given that the offence for which the Applicant was convicted involved a conspiracy with a number of other offenders, Person A being the most relevant, it is also necessary to have regard to the principle of parity which I have considered at some length at [14]-[24] above.

  3. As set out at [8] above, following a successful appeal against sentence in the Court of Criminal Appeal, Person A received an undiscounted indicative sentence in respect of his involvement in the Dalrymple 1 conspiracy of 16 years imprisonment.

  4. The Applicant submitted that, given the sentencing judge’s finding that Person A’s “overall criminality [was] at the very highest level” and the lack of any significant differences in their respective subjective cases, there should be no substantial disparity between the sentences imposed on Person A and the Applicant for their involvement in the Dalrymple 1 conspiracy. I have already pointed out that the sentencing judge made her observations as to Person A’s overall criminality being “at the very highest level” some considerable time before she came to sentence the Applicant and by reference to a less extensive body of evidence: see [63] above.

  5. The Crown submitted that, contrary to what was put by the Applicant, there were material differences in the objective gravity of the roles played by the Applicant and Person A in the Dalrymple 1 conspiracy. In particular, the Crown pointed to the sentencing judge’s unchallenged findings at ROS [138] that although Person A had “virtually complete autonomy in all matters connected with the Dalrymple and the role it was to play”, unlike the Applicant who had a “role in the international supervision of the operation”, Person A “had no involvement … with the international aspects of the scheme”, “no knowledge or autonomy in the arrangements for the preparation and dispatch of the drugs”, “no knowledge of the overall structure of the syndicate responsible for the drugs” and “no knowledge of or role in the receipt of the cargo in Australia.”

  6. Notwithstanding the successful challenge to an aspect of the sentencing judge’s fact finding dealt with at [42]-[50] above, it remained the case that the Applicant was Gutterball’s “trusted lieutenant”, and his representative in Australia. His overall role was more senior to that of Person A and that is an important matter to take into account when considering an adequate punishment for the offence. That having been said, unlike other co-offenders, Person A’s undoubtedly senior role does bear some comparison with that of the offender.

  7. In the context of parity, the Crown also submitted, and I accept, that there were “significant differences” in the subjective cases of Person A and the Applicant. In this respect, the Crown pointed to the fact that the sentencing judge had found “powerful evidence of contrition and remorse” in respect of Person A, but did not accept that the Applicant’s regret amounted to true remorse.

  8. Consideration of parity requires these differences to be taken into account (this is the concept of “due allowance”), but their existence does not relieve a sentencing judge of the need to give effect to the parity principle as between co-offenders where their roles are sufficiently similar so as to bear meaningful comparison.

  9. Consistent with s 6(3) of the Criminal Appeal Act, I am satisfied that a different and lesser sentence was warranted than that imposed by the sentencing judge, and that that sentence should be quashed.

  10. Pursuant to s 16A(1) of the Crimes Act, a sentence must be imposed of a severity appropriate in all the circumstances of the offence.

  11. Taking into account the matters required to be taken into account by s 16A(2) of the Crimes Act, and having regard to the considerations identified above, including the sentence imposed on his co-offender Person A, for the offence of conspiring to import a commercial quantity of a border controlled drug, the offender is sentenced to a term of 22 years imprisonment to date from 22 January 2019, expiring on 21 January 2041, with a non-parole period of 13 years, expiring on 21 January 2032.

Orders

  1. I therefore propose the following orders:

  1. Grant leave to appeal.

  2. Allow the appeal.

  3. Quash the sentence imposed on Darren Mohr on 3 July 2020 and in lieu thereof, sentence Mr Mohr to a term of 22 years imprisonment to date from 22 January 2019, expiring on 21 January 2041, with a non-parole period of 13 years, expiring on 21 January 2032.

  1. DAVIES J: I agree with Bell CJ.

  2. WRIGHT J: I agree with Bell CJ.

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Decision last updated: 06 November 2024

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