NP v R

[2008] NSWCCA 205

New South Wales
Court of Criminal Appeal

CITATION:	NP v R [2008] NSWCCA 205
HEARING DATE(S):	19/08/2008
JUDGMENT DATE:	24 September 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hislop J at 2; Hoeben J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - conspiracy to import commercial quantity of prohibited drug - effect of discounts for assistance and plea of guilty - part played by applicant in conspiracy - whether applicant withdrew from conspiracy before arrest - parity principles - whether other sentence warranted in law.
LEGISLATION CITED:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act Criminal Appeal Act 1912 Customs Act 1901
CATEGORY:	Principal judgment
CASES CITED:	R v Burns [2007] NSWCCA 228 R v C (1994) 75 A Crim R 309 R v CAS [2005] NSWCCA 192 R v JRD [2007] NSWCCA 55 R v Dodd (1991) 57 A Crim R 349 R v Geddes (1936) 36 SR (NSW) 554 R v Lopez [1999] NSWCCA 245 R v Rushby [1977] 1 NSWLR 594 R v Simpson (2001) 53 NSWLR 704 R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 R v Thomson; R v Houlton [2000] NSWCCA 309 R v WHS (NSWCCA, unreported, 27 March 1995) SZ v Regina [2007] NSWCCA 19 York v R (2005) 221 ALR 541
PARTIES:	NP - Applicant Regina - Respondent Crown
FILE NUMBER(S):	CCA 5813/2004
COUNSEL:	Mr T Game SC - Applicant Mr D Staehli SC - Respondent Crown
SOLICITORS:	Nyman Gibson Stewart - Applicant Commonwealth Director of Public Prosecutions - Respondent Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0196
LOWER COURT JUDICIAL OFFICER:	Solomon DCJ
LOWER COURT DATE OF DECISION:	10/12/2004

5813/2004

McCLELLAN CJ at CL
HISLOP J
HOEBEN J

Wednesday, 24 September 2008

NP v R

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 HISLOP J: I agree with Hoeben J.

3 HOEBEN J:

Offence and sentence:
The applicant pleaded guilty before the Local Court on 23 February 2004 to an offence contrary to s 11.5(1) of the Criminal Code/Section 233B of the Customs Act 1901 that between 15 December 2001 and 26 April 2003 he did conspire with others to commit an offence against s 233B(1)(b) of the Customs Act 1901, namely the importation of prohibited imports, being a quantity of MDMA (commonly known as ‘ecstasy’) being not less than the commercial quantity applicable to MDMA. The maximum sentence for the offence was life imprisonment and/or a fine of $750,000.

4 The applicant maintained his plea of guilty in the District Court and on 10 December 2004 was sentenced by Solomon DCJ. The sentence imposed was imprisonment with a non-parole period of 7 years to date from 16 April 2003 and to expire on 15 April 2010 with a balance of term of 4 years to expire on 15 April 2014.

5 The gross weight of the powder which contained the MDMA was 170.927 kilograms. The net weight of pure MDMA after analysis was 136.913 kilograms. For the purposes of the offence, the commercial quantity of MDMA at the time was .5 kilograms.

6 The applicant appeals from the severity of the sentence.

Factual background

7 The facts in this matter are lengthy and complex. The sentencing judge had before him a lengthy summary of facts, a statement of the applicant and the applicant gave evidence. It is not appropriate, nor would it be useful, to repeat that material. What I propose to do is to provide a general background to the offence, keeping in mind that one of the grounds of appeal is that his Honour wrongly characterised the part played by the applicant in the conspiracy.

8 The applicant was one of six persons who were convicted for their part in the importation into Australia of the 170 kgs of MDMA. It arrived concealed in freezer units in a container from Malaysia in April 2003. The other participants were WKC, Dario MILICIC, Andrew Phillip RIDDELL, Mathew WALSH, CAS, and Jamie Matthew WHATLEY. The Crown alleged that the applicant was a middleman or intermediary who facilitated contact between the various members of the conspiracy in Sydney. On the Crown case, the applicant was below WKC and Riddell in the hierarchy of the group, but above CAS who had at the time of the applicant’s sentence hearing already been sentenced by Solomon DCJ.

9 Of those involved in the conspiracy, only Riddell went to trial. The others pleaded guilty and WKC, the applicant and CAS gave statements to the police and gave evidence on behalf of the prosecution in the proceedings against Riddell. Each of them received substantial discounts for their assistance when they were sentenced. There were other participants in the conspiracy from overseas such as Johannes Francois, but they were not dealt with in Australia.

10 The applicant met Riddell in 2001. Riddell became the majority shareholder in a company, Loop Domain, with the applicant and two other men as shareholders. In late 2001, Riddell flew to Europe to meet WKC to make initial arrangements for a drug importation into Australia. In early 2002 Riddell flew to Malaysia to meet with WKC and Johannes Francois.

11 In March and April 2002 Walsh discussed overseas travel with Milicic and Whatley. On 5 April Walsh met with Milicic. Milicic contacted the applicant who knew him and the applicant arranged meetings with Walsh. On 21 April 2002 Walsh and Whatley flew to Germany for meetings related to a drug importation. On 24 April Walsh met with Francois in Belgium and was observed by Belgian police. This importation was later abandoned because of fears of police surveillance.

12 The applicant told police that Riddell had told him in May 2002 of the trip by friends of Milicic to Europe to meet a friend of Riddell’s to whom they had spoken about importing ecstasy. Riddell asked the applicant if he would be an intermediary between Riddell and Milicic and his friends. The applicant agreed and confirmed with Milicic that he had discussed an importation of ecstasy pills with Riddell. The plan was to use Walsh and a company called Muma International for the importation.

13 In June 2002 Riddell told the applicant that he was returning overseas to see his mates and asked the applicant to arrange a meeting with Milicic and Walsh to see if they were still interested in “the pills” and what legitimate items they wanted to import. He also asked the applicant to clarify Customs procedures with them.

14 On 5 June 2002 Walsh, Milicic an the applicant met in Surry Hills, walked to Prince Alfred Park and discussed the importation of drugs and Customs procedures. Walsh said he would talk to Whatley, who was a freight forwarder, about such matters.

15 On 7 June 2002 Milicic, Walsh and the applicant again met in Surry Hills and were overheard discussing shipping containers and the placement of boxes in them and how to avoid quarantine scrutiny. Riddell met briefly with them during the meeting.

16 The applicant continued to provide a means of communication between Milicic and Riddell. Riddell travelled to Hong Kong on 17 June 2002. The applicant advised Milicic when Riddell returned. Later Riddell told the applicant to let “the guys” know that WKC was coming to Australia to discuss “the other thing” with them. The applicant kept Milicic updated about these matters.

17 On 24 July the applicant confirmed that WKC was due in Australia and that Milicic was still interested in going ahead with the importation. WKC arrived in Australia on 16 August 2002. The applicant kept Milicic informed about meeting arrangements. On 18 August 2002 the applicant and Riddell met with WKC at a Kings Cross nightclub. Riddell then left and the applicant introduced WKC to Whatley, who had come to Kings Cross with Milicic. WKC discussed Customs matters with Whatley in the applicant’s presence. Milicic did not enter the nightclub. The applicant later told Riddell that the meeting had gone well but that another meeting was necessary.

18 On 19 August 2002, after a series of calls between Riddell and the applicant, Milicic, Walsh and Whatley, the applicant and WKC travelled to the Orient Hotel at The Rocks and met with Whatley. WKC left Australia later that day.

19 Between 25 September and 5 October 2002 the applicant continued to act as intermediary by providing information to Walsh and Milicic. On 1 October the applicant told Milicic to stop repeatedly contacting him on the telephone. WKC returned to Australia on 5 October 2002 and arranged a meeting with Whatley about narcotics being sent in a container. WKC left Australia on 8 October.

20 In October/November 2002 Walsh and Milicic realised that they were the subject of surveillance and located police listening devices in their vehicles. At the end of October, Whatley agreed to assist to police. In early November the applicant and Riddell discussed contact with Whatley about his meetings with WKC. Riddell told the applicant that Whatley would have a list of computer buyers. During November, Whatley met with the applicant on a number of occasions at Walsh’s instigation. At these meetings the applicant asked Whatley about Customs procedures. The applicant told Whatley that he and Riddell were sick of the delays and that Riddell or he would be going overseas to “see the Chinaman and sort it out”. They made arrangements for Whatley to provide a list of legitimate computer supply companies, contact with which might support a story that the importation was a legitimate business venture.

21 On 22 November Whatley again met with the applicant and they discussed a “dry run” and Customs procedures. The applicant told Riddell of the meeting. Riddell flew to Hong Kong on 22 November and met with Francois and WKC. He returned to Australia on 24 November.

22 In early December 2002 Riddell asked the applicant to chase up the information from Whatley about computer suppliers. On 4 December the applicant met with Whatley at a meeting organised by Walsh and Milicic and they discussed these matters. On 8 December WKC returned to Australia. Riddell had told the applicant to tell the “guys” of WKC’s arrival and arrange a meeting with Whatley. Riddell and the applicant met with WKC at Kings Cross. That evening WKC and the applicant met with Whatley at a Woollahra hotel where WKC and Whatley discussed in the applicant’s presence how computers would be used in the importation and that there would be a “dry run” and that in the second shipment there would be the “10-50” boxes containing the “real goods”. WKC left Australia on 12 December.

23 In January 2003 WKC contacted Riddell and followed up on developments. Riddell asked the applicant to find out if “the guys” received quotes from WKC and warned the applicant not to talk over the telephone. The applicant followed up these matters with Milicic. At around this time Walsh sought to replace Whatley with CAS as the person who would clear the cargo through Customs.

24 On 12 February 2003 Milicic and the applicant met with CAS at Fox Studios. The applicant told CAS that he was interested in bringing in illegal goods inside legitimate shipments. On 13 February the applicant told Riddell that he had met with Whatley’s replacement, who was available to meet with WKC, who had returned to Australia the same day. On 16 February Milicic told the applicant that he had been unable to arrange for CAS to meet with WKC.

25 On 17 February WKC met briefly with the applicant and Riddell, after which the applicant contacted Milicic. That night WKC met with the applicant and CAS at the Golden Century Restaurant at Fox Studios. During the meeting, the applicant telephoned Riddell, asked if he was coming and told him that there was no need for him to come. The three men discussed Customs procedures.

26 On 21, 24 and 27 February WKC and the applicant sought unsuccessfully to meet with CAS. The applicant asked that Milicic obtain mobile telephones for “the Chinaman”. On 28 February the applicant and Milicic had a coded conversation about the matter proceeding.

27 On 2 March 2003 WKC and the applicant met with CAS at a bar at Fox Studios. They discussed the procedure that would be adopted with the applicant asking about the suspicion of Customs and about x-ray machines.

28 On 4 March 2003 WKC met with CAS at his customs broker office and posed as a client at this first meeting. At the same time, Milicic met with the applicant. After meeting with CAS, WKC met with Riddell and the applicant at Surry Hills. WKC told the applicant to keep the mobile phone and give one to CAS so that the importation could be discussed between them.

29 Between 11 and 14 March the applicant met with CAS and provided him with a “covert” mobile telephone. On 26 March the applicant telephoned WKC in Malaysia and had a coded conversation about the importation. On 26 March the applicant contacted WKC in Malaysia and they had a coded conversation about the arrival of “the other things”. On 7 April 2003, the applicant again contacted WKC and inquired about when “it” would arrive. WKC said he would arrive on Friday and they agreed to talk then.

30 On 9 April 2003 Milicic was arrested in relation to another importation. The applicant said that he told Riddell that as a result he did not want anything more to do with the importation.

31 On 11 April WKC returned to Australia. During April Police became aware that a consignment of 36 freezers in containers had been dispatched from Malaysia and intercepted it on arrival in Australia, finding the MDMA secreted in three freezers. On 14 April WKC met with Riddell and the applicant and Riddell asked the applicant to tell WKC what had happened to Milicic. WKC asked the applicant to set up a meeting with CAS and the applicant agreed to do so, although he told WKC that he wished to have no more to do with the matter. On 16 April WKC met again with Riddell and the applicant and later attempted unsuccessfully to meet with CAS. When CAS did not arrive WKC contacted the applicant and told him he would meet with CAS the next day. During the calls which constituted this contact the applicant told WKC not to use any telephone other than the “covert” one to contact him.

32 On 17 April 2003 WKC went to CAS’s office and then met with the applicant at Surry Hills. On 23 April CAS obtained Customs clearance for the container which was delivered to his company. He advised WKC that the container was intact. On 24 April WKC was arrested as he made his way to the airport. The applicant and others were arrested on 26 April 2003.

Remarks on sentence

33 His Honour reviewed the facts and noted that on 13 February 2004 the applicant made admissions regarding his participation in the conspiracy and that on 26 February he signed a 41 page statement dealing with his involvement. His Honour found that the applicant had participated in the venture from the time of the initial contact by Riddell until his arrest.

34 His Honour referred to the applicant’s statement and to the fact that the applicant described himself as a go-between. In that statement the applicant said that at no time was he told that he would be paid for his participation in the venture but he understood that he could obtain a considerable financial benefit by Riddell and WKC investing in the company, Loop Domain, of which he was a director and shareholder. The applicant also believed that Riddell and WKC would provide other business opportunities for the company.

35 In his evidence the applicant asserted that he believed that he was involved in the importation of a few thousand pills only. His Honour did not accept that evidence. His Honour found that the applicant knew that a substantial quantity of MDMA was to be imported into Australia.

36 His Honour based that finding on four considerations:

(1) The applicant was aware of the substantial planning surrounding the importation.

(2) He was aware of the substantial amount of money provided for the purpose of the importation.

(3) He was aware of the approximate size of the freezers, which were to house the importation.

(4) He had expectations that his company was to receive a substantial financial benefit from the importation.

37 In relation to the role of the applicant, his Honour made the following findings:

(1) That he played a mid-range role within the criminal syndicate in that he attended meetings with WKC, who was a principal in the scheme and with junior members of the scheme.

(2) He was trusted by Riddell, a principal in the scheme, to arrange meetings between syndicate members and to attend meetings with WKC, Whatley and CAS, which Riddell did not attend, and where detailed planning of the importation and its Customs clearance took place. The applicant reported back to Riddell regarding those meetings.

(3) The applicant became involved in the conspiracy because he believed that he would obtain a substantial financial benefit through Riddell and WKC investing in Loop Domain and by Riddell and WKC providing additional business opportunities for that company.

38 His Honour had regard to the objective seriousness of the offence by reference to the maximum penalty. His Honour noted that MDMA had been characterised by the courts as a midrange drug which had the capacity to cause death or physical and/or psychological injury to those who used it. His Honour commented that the community would not tolerate the importation into Australia of commercial quantities of ecstasy.

39 His Honour had previously sentenced CAS, who pleaded guilty to aiding and abetting the commission of an offence against s 233(b)(1) of the Customs Act. His Honour had sentenced CAS to a term of imprisonment with a non-parole period of 5 years and a balance of term of 3 years. Because CAS and the applicant were both involved in the importation, his Honour took into account the principle of parity when sentencing the applicant.

40 His Honour distinguished the part played by CAS in the conspiracy from that of the applicant. His Honour found that CAS had played a junior role in the syndicate. CAS had joined the syndicate in about February 2003 and his sole function was to advise the syndicate on Customs procedures and to arrange for Customs clearance of the consignment of MDMA.

41 By way of contrast, the applicant had participated in the syndicate from at least May 2002 and had a significant role in communications between WKC and Riddell on the one hand, and Milicic, Whatley and CAS on the other. The applicant had attended meetings with WKC and Riddell and had arranged meetings on behalf of Riddell where Riddell did not attend but where the applicant had reported back to him.

42 As a further point of contrast, his Honour found that CAS’s involvement in the enterprise was to some extent precipitated by threats made to him by other members of the syndicate whereas his Honour found that the applicant had joined the syndicate purely of his own volition. When sentencing CAS his Honour had been unable to find that his participation in the importation was based on an expectation of financial gain whereas his Honour found that the applicant was motivated by the prospects of substantial financial gain. Finally, his Honour found that CAS was a man of good character whereas his Honour declined to make such a finding in favour of the applicant.

43 The reason his Honour declined to make a finding of good character in favour of the applicant was because he concluded that the applicant had given false evidence in the sentencing proceedings. In his evidence the applicant had said that he was not a user of illegal drugs. Other material before the court made it clear that the applicant had done so while participating in the conspiracy. While his Honour did not take that matter into account when sentencing the applicant, he noted that the effect of the applicant lying under oath was that his credibility was diminished.

44 His Honour acknowledged that the applicant had a strong subjective case. He found that the applicant’s criminal behaviour was atypical of him. The applicant was well educated and had gained a Bachelor of Commerce degree. He was undertaking a Masters Degree in Business Administration at the University of New England at the time of his arrest. From the age of nine until the date of his arrest the applicant had a good employment history. His Honour was satisfied that the business of Loop Domain was a genuine business and that it was not created by the applicant and Riddell as a means of conducting illegal operations.

45 His Honour had before him a report of Dr Westmore, psychiatrist. This report revealed that the applicant had a troubled family history and that the applicant’s family background was significantly dysfunctional. He noted Dr Westmore’s diagnosis that the applicant was suffering from a mood disturbance and required ongoing psychiatric treatment.

46 His Honour found that the applicant was making good progress towards rehabilitating himself. In that regard the applicant had strong support from his family and friends and his Honour thought that his rehabilitation would be enhanced by that support after his release from prison.

47 In relation to the applicant’s plea of guilty his Honour said:

“I also take into consideration the fact that the offender pleaded guilty at an early stage. The plea of guilty demonstrates contrition on the part of the offender. Insofar as contrition is concerned I have heard evidence from the offender he read his letter to me dated 17 June 2004, exhibit 3. I am satisfied that he is truly contrite. A plea of guilty also has a utilitarian benefit to the community and indicates to me that the offender has a desire to facilitate the course of justice.”

His Honour did not specify whether, or to what extent, the applicant was entitled to a discount for his plea of guilty.

48 Immediately following his Honour’s observations concerning the applicant’s plea of guilty, his Honour dealt with the applicant’s assistance to authorities which he characterised as “assistance of a high order”. There was before the court the evidence of a Federal police officer and a letter from the manager of the Sydney office of the AFP which set out the extent of the assistance provided by the applicant. In fact the applicant gave evidence for the prosecution in committal proceedings against Riddell. The applicant indicated his willingness to give evidence against his co-offenders in future proceedings.

49 As a result of the applicant’s past assistance, his Honour reduced the head sentence he would otherwise have imposed by 25 percent. Because of the applicant’s promise of assistance in the future, his Honour reduced the head sentence which he otherwise would have imposed by a further 25 percent.

Grounds of Appeal
Ground 1 – The learned trial judge erred in apparently failing to give the applicant the benefit of a discount on sentence by reason of his plea of guilty to the charge of conspiring to import a commercial quantity of the prohibited drug MDMA (known as “ecstasy”).

Or alternatively,

Ground 2 – If there was a discount for the plea of guilty incorporated into the discount given for past and future assistance, then the starting point for the sentence before applying the discount was in all the circumstances too high.

50 The applicant submitted that because his Honour had failed to identify a particular discount for the applicant’s plea of guilty, one of two things had happened. Either his Honour had allowed no discount for the plea or if his Honour had allowed a discount, the start point for the head sentence must have been too high.

51 The applicant’s argument was developed in this way. If his Honour allowed a discount for the plea of guilty of ten percent, the start point for the head sentence would have to have been 28 years. Given the nature of the applicant’s involvement in the importation this was too high a start point.

52 The alternative was that no discount had been allowed by his Honour. The applicant submitted that it could not be said that a discount for the plea had been included in the 50% discount allowed for assistance because of the way in which his Honour had expressed that discount. His Honour had specifically given percentages for both past and future assistance.

53 This criticism has considerable force. Quite clearly a start point of 28 years is excessive given the findings by his Honour as to the role of the applicant in the importation. Alternatively, having specifically referred to the plea of guilty and its utilitarian value, it was incumbent upon his Honour to give some indication as to how he proposed to make use of that finding, ie by including it as part of the overall discount for assistance or by taking it into account in some other way.

54 In the circumstances of this case to simply refer to the plea of guilty with its utilitarian value and as being indicative of contrition without specifying what use was to be made of it, constituted error. The applicant would be left with the strong impression that no value had been placed on his plea of guilty in the sentencing process. This is particularly so when one has regard to s 16A(2)(g) of the Commonwealth Crimes Act which specifies a plea of guilty as a matter which the court must take into account when sentencing.

Ground 3 – The learned sentencing judge erred in assessing the objective criminality of the applicant’s conduct by:

(a) Concluding that the evidence established that the applicant was aware that a substantial quantity of the prohibited drug MDMA was to be imported into Australia; and

(b) Apparently failing to have regard to the applicant’s withdrawal from participation in the illegal enterprise: See statement of facts at 44.5 and 45.8.

55 The applicant submitted that his Honour had erred in his fact finding in that the evidence did not establish to the necessary standard that the applicant was aware of the quantity of drugs that was to be imported. In his evidence the applicant had specifically denied this, asserting his belief that the importation involved a few thousand pills only. Since this was an important finding of fact which was adverse to the applicant, it needed to be established beyond reasonable doubt.

56 The applicant challenged the four reasons put forward by his Honour for making the finding. The applicant submitted that although there was evidence of substantial planning surrounding the importation, there was no conclusive evidence that the applicant was aware of the approximate size of the freezers and their number. It was submitted that there was no material in the applicant’s statement, or in the recorded conversations, which would enable the court to find to the necessary standard that the applicant was aware of the quantity of drugs being imported.

57 As the factual background makes clear, the applicant had been involved in this project for almost a year. Importantly, he had been Riddell’s representative in all of the meetings with Milicic, Walsh and Whatley. The involvement of Whatley is important because as a freight forwarder he was the person who had the expertise to advise the conspirators concerning customs procedures. This formed the subject matter of many of the meetings. Subsequently Whatley was replaced with CAS, a customs agent, so that CAS could provide the same information. It is not without significance that on 8 December 2002 WKC and Whatley discussed in the applicant’s presence how computers would be used in the importation and that there would be a dry run. They said that in the second shipment there would be “10 – 50” boxes containing the “real goods”.

58 Given the applicant’s extensive involvement, not only with Milicic and his friends but particularly with the customs experts Whatley and CAS, it is fanciful to suggest that the applicant was unaware of the approximate quantity of the drugs to be imported. The reference to “10 – 50” boxes containing the “real goods” in the circumstances of that conversation can only be consistent with a very substantial importation. As his Honour indicated, the extensive planning and the significant amount of money clearly being outlaid to set up the importation could only be consistent with a large importation. It was well open to his Honour to find beyond reasonable doubt that the applicant was aware of the quantity of drugs to be imported.

59 In relation to the second limb of this ground of appeal, it was submitted that after 9 April 2003 (being the date when Milicic was arrested) the applicant was doing whatever he could to get out of the enterprise and that he ultimately succeeded in doing so. It was submitted that this withdrawal indicated that the part played by the applicant was not essential to the importation and diminished the objective seriousness of the criminality. It was submitted that the failure of the sentencing judge to make any reference to the applicant’s withdrawal from the enterprise meant that the sentencing judge had failed to give appropriate weight to that factor.

60 In oral submissions senior counsel for the applicant put the proposition somewhat differently. He submitted that the applicant’s withdrawal from the enterprise meant that specific deterrence was not a factor to be taken into account in sentencing the applicant. He submitted that specific deterrence was one of the matters which the sentencing judge had to take into account, pursuant to s 16A of the Commonwealth Crimes Act and that his Honour’s failure to do so was indicative of error.

61 Underlying the submissions is the proposition that the applicant did in fact withdraw from the enterprise as of 9 April 2003. That proposition does not accord with the evidence. It is true that shortly after he became aware of the arrest of Milicic the applicant told Riddell that he did not want anything more to do with the importation. Nevertheless, on 14 April WKC met with Riddell and the applicant upon his return to Australia. WKC asked the applicant to set up a meeting with CAS. The applicant agreed to do so, although he told WKC that he wished to have no more to do with the matter. On 16 April the applicant once again met up with the WKC and Riddell but CAS did not attend. WKC asked the applicant to set up a meeting with CAS the following day. In the course of various telephone conversations with WKC at this time, the applicant told WKC to use only the “covert” phone to contact him. The applicant again met with WKC on 17 April 2003 after WKC had been to CAS’s office.

62 It is clear that the applicant, despite his expressed intention of withdrawing from the enterprise, continued to be active in it between 9 April and 17 April 2003. By 17 April 2003 the container had arrived and there was little more that any of the conspirators could do until the container cleared customs. In those circumstances I am not satisfied that the applicant did withdraw from the enterprise. His participation after 9 April may have been reluctant but it continued. Accordingly, his Honour was entitled to find as he did that the applicant participated in the venture up to the time of his arrest.

63 The Court was referred to such cases as R v Lopez [1999] NSWCCA 245 and R v Burns [2007] NSWCCA 228. Those cases are authority for the proposition that voluntary cessation of what is typically an ongoing criminal activity is a significant factor in mitigation. This is because there is a public policy to be served in encouraging offenders to cease criminal activities. In addition specific deterrence is a factor to be given little or no weight and such a voluntary cessation of criminal activity provides strong evidence of remorse, contrition and rehabilitation.

64 The facts of those cases and the considerations there adverted to are considerably different to the facts of this case. Here there was no real withdrawal from the enterprise. The motivation for the applicant’s expressed intention to withdraw was his fear after the arrest of Milicic that he also would be arrested. This was not consistent with contrition, remorse and rehabilitation nor did it entitle the applicant to have specific deterrence disregarded when his Honour was passing sentence.

65 This ground of appeal has not been made out.

Ground 4 – The sentence imposed on the applicant is, when compared with that imposed upon his co-offender known as CAS (a case in which the judgment of this Court is reported at (2005) 160 A Crim R 451; [2005] NSWCCA 192), is such as to leave the applicant with a justifiable sense of grievance that his sentence is manifestly excessive.

66 In raising this ground of appeal the applicant accepted that in R v CAS [2005] NSWCCA 192 this court found that there was due proportion between the sentence imposed on CAS and the applicant. The applicant submitted that this finding by the court should not be regarded as conclusively binding since the material then before the court was likely to have been different and the applicant’s submissions were not available to the court in CAS.

67 The applicant submitted that the principal point of distinction between the applicant and CAS was the fact that the applicant withdrew from the conspiracy before his arrest. It was submitted that the role of CAS was significant in that he had used his specialised skills as a customs agent to clear the goods and to take delivery of the container and that his actions had constituted a substantial breach of trust. It was submitted that when these matters are taken into account, the applicant is entitled to feel a justified sense of grievance at the sentence imposed on him.

68 His Honour carefully considered the respective roles of the applicant and CAS. There is nothing in the submission which invalidates the factors which his Honour took into account in making that comparison. In relation to the additional matters, the asserted withdrawal by the applicant from the enterprise is not made out on the evidence and was not a matter of significance. The question of breach of trust was relevant but went no further than the misuse of his position as a customs agent to facilitate the importation. This had clearly been taken into account by his Honour since it constituted the gravamen of the offence with which CAS had been charged.

Conclusion

69 His Honour’s treatment of the applicant’s plea of guilty involved error. However, for this court to quash a sentence and impose a lesser one, it is not sufficient for the applicant to establish error. It is necessary that this court be satisfied that “some other sentence … is warranted in law and should have been passed” – subs 6(3) of the Criminal Appeal Act 1912, R v Simpson (2001) 53 NSWLR 704 at [79] and [99-100]. I am of the opinion that although error has been shown in the manner specified, a lesser sentence is not warranted in law.

70 In reaching that conclusion I adopt the reasoning of Howie J in SZ v Regina [2007] NSWCCA 19 which was approved in R v JRD [2007] NSWCCA 55. There his Honour said:

“4 There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination of reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act , a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment. That bottom line is reflected in relation to a discount for assistance to the authorities by s 23(3) of the Crimes (Sentencing Procedure) Act. It is spelled out there in the Act because it is in relation to the application of discounts for assistance that the often conflicting purposes and policies of sentencing a particular offender come brightly into focus.
5 But the notion of an irreducible minimum sentence that must inform the lower limit of the sentencing discretion is manifest in the often quoted decisions of this Court emphasising that at the conclusion of the exercise of the sentencing discretion, whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfill the manifold purposes of punishment: see for example R v Geddes (1936) 36 SR (NSW) 554; and R v Dodd (1991) 57 A Crim R 349. Sometimes it is said that the sentence must “accord with the general moral sense of the community”: R v Rushby [1977] 1 NSWLR 594. After taking into account the various statutory and common law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large.
6 These observations are trite and so there is a risk that they will be overlooked in an attempt to achieve one of the purposes of punishment at the expense of another. I simply wish to emphasise that, because there is only limited room to discount a sentence without going below the bottom line, it must follow that the application of one discount for one purpose will inevitably impact upon the extent to which another discount can be applied to achieve a different purpose. The extent to which a sentence is discounted in recognition of the utilitarian value of the plea must necessarily affect the ability of the court to discount the sentence in recognition of assistance and the consequences of it for the offender. The fact that the overall sentence is discounted in recognition of assistance or for some other reason must affect the ability of the court to reduce the non-parole period in order to reflect special circumstances.

7 Counsel for the applicant argued that a proper application of both the guideline in Thomson and Houlton [2000] NSWCCA 309 as to the effect of the utilitarian value of a plea of guilty and the acknowledged range of the discount available for assistance meant that it was legitimate in an appropriate case to discount a sentence by up to 75 percent. It was argued that, as the discount for the plea and the discount for assistance reflect two different policies and did not overlap, because the utilitarian value of the plea had nothing to do with contrition, the court should give them both their full effect. But the argument simply overlooks the fact that it is impossible to see how a sentence that is only 25 percent of what would otherwise be appropriate could not be “unreasonably disproportionate to the nature and circumstances of the offence”.

8 I accept that what is “unreasonably disproportionate” is not simply determined by the objective facts of the offence and has to take into account matters such as the threat posed to the offender by reason of the assistance given and the nature and extent of the assistance: R v C ( 1994) 75 A Crim R 309. But this does not relieve the judge from the primary task of imposing a sentence that reflects the objective circumstances of the offence: R v WHS (NSWCCA, unreported, 27 March 1995). The decision in York v R (2005) 221 ALR 541 does not suggest otherwise.
9 I will assume for present argument that before Thomson and Houlton the discount for assistance was given in addition to any reduction in the sentence for a plea and could extend up to 50 percent. But in my opinion after that decision, when the discount for the utilitarian value of the plea could be as high as 25 percent, the courts generally had less scope to give a discount for assistance where there had been an early plea of guilty. This is simply because, as I have pointed out, there is a limit to the amount to which a sentence can be discounted and yet not fall beneath the bottom line. Similarly if an Ellis discount is allowed for disclosing unknown criminality in addition to a discount for an early plea, the ability to give any further discount for whatever purpose is reduced.

10 There is in my opinion nothing unfair about this result nor is the public policy in encouraging assistance necessarily reduced. There is still on offer, even after an early plea, a discount of somewhere in the vicinity of 25 percent, or more in an exceptional case. The simple fact is that it is more important to the administration of justice to encourage and reward early pleas of guilty. If the pursuit of that policy diminishes the ability to encourage and reward assistance, so be it. There is a greater public policy at stake and that is public confidence in the courts to impose sentences that are just and reasonable to all concerned.”

See also R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151.

71 I appreciate that part of his Honour’s reasoning is based on s 23(3) of the Crimes (Sentencing Procedure) (NSW). In that regard, however, the provisions of s 16A(1) and 16A(2)(g) and (h) of the Commonwealth Crimes Act are to similar effect and provide the same support for his Honour’s conclusion.

72 As can be seen from the maximum penalty for this offence, its objective seriousness was substantial. The part played by the applicant was significant as providing the link between the two principals and the link between them and other subordinate members of the conspiracy. The application of discounts should not prevent proper weight being given to these matters. It is important that the final sentence reflect an appropriate balance.

73 On the facts of this case I am not satisfied that some other sentence is warranted in law and should have been passed. The discounts specified by his Honour for the applicant’s assistance were generous. Had his Honour made clear in his remarks that he was taking the applicant’s plea of guilty into account when granting an overall discount of 50 percent, which included the discounts for past and future assistance, there would have been no error.

74 As Howie J made clear and as s 16A(1) expressly stipulates “A court must impose a sentence that is of a severity appropriate in all the circumstances of the offence”. To apply a further discount beyond the 50 percent already allowed by his Honour would breach this fundamental principle and would be unreasonably disproportionate to the nature and circumstances of the offence.

75 The orders which I propose are:

(1) Leave to appeal be granted.
(2) The appeal be dismissed.

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