Oliveira v The Queen - [2020] WASCA 32

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   OLIVEIRA -v- THE QUEEN [2020] WASCA 32
CORAM:   MAZZA JA
MITCHELL JA
VAUGHAN JA

HEARD:   18 FEBRUARY & 11 MARCH 2020
DELIVERED          :   18 MARCH 2020
FILE NO/S:   CACR 98 of 2019
BETWEEN:   BRUNO CORREIA OLIVEIRA
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 1893 of 2018

Catchwords:

Criminal law - Federal offences - Appeal against sentence - Importation of a marketable quantity of a border controlled drug (cocaine) - Where appellant pleaded guilty and acted as a courier importing 1.33 kg of cocaine into Australia - Where sentencing judge assessed the severity of the offence by reference to the 'position in which cocaine is regarded in the hierarchy of drugs', being 'at the top end of the scale of seriousness in relation to drugs' - Whether sentencing the appellant on that basis is inconsistent with the structure of ch 9 pt 9 div 307 of the Criminal Code - Whether a different sentence should have been imposed

Legislation:

Crimes Act 1914 (Cth), s 16A, s 19AB
Criminal Code (Cth), s 307.2, s 307.3, s 307.4

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	G M Rodgers
Respondent	:	C Moss

Solicitors:

Appellant	:	G M Rodgers
Respondent	:	Director of Public Prosecutions (Cth)

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

Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
Bick v The Queen [2006] NSWCCA 408
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Gwardys v The Queen [2019] NSWCCA 62
Harding v The State of Western Australia [2015] WASCA 27
Hibgame v The Queen [2014] VSCA 26
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Jackamarra v The State of Western Australia [2019] WASCA 150
Jiang v The State of Western Australia [2020] WASCA 7
Lam v The Queen [2014] WASCA 114
Mohlasedi v The Queen [2006] WASCA 267
Power v The Queen (1974) 131 CLR 623
Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174
R v Cunha [2017] QCA 6
R v Jimson [2009] QCA 183
R v Mokoena [2009] QCA 36
R v Ng [2012] WASCA 180
R v Pidoto [2006] VSCA 185; (2006) 14 VR 269
Samardali v The Queen [2018] WASCA 220
Sayed v The Queen [2012] WASCA 17
Stipkovich v The Queen [2018] WASCA 63
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

JUDGMENT OF THE COURT:

Summary

On 29 March 2019, the appellant was convicted, on his plea of guilty, of one count of importing a marketable quantity of a border controlled drug, namely cocaine, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The total weight of the cocaine was 2.295 kg (58% pure, being 1.331 kg of the drug in pure form).
The appellant was sentenced to 8 years' imprisonment, with a non-parole period of 5 years and 4 months. The sentence was backdated to 4 September 2018 to take into account time spent in custody on remand.
The appellant now appeals against his sentence, on two grounds. Ground 1 contends that the non-parole period is manifestly excessive. Ground 2 contends that:
The learned sentencing judge erred in law in sentencing the appellant on the basis that, in considering the severity of the offence and the nature and circumstances of its commission, he was required and permitted to take into account 'the position in which cocaine is regarded in the hierarchy of drugs', being 'at the top end of the scale of seriousness in relation to drugs' (ts 77).
The Crown concedes that ground 2 is established. For reasons which follow, that concession should be accepted. As a result it is necessary for this court to consider, afresh and for itself, the appropriate sentence. It is therefore unnecessary to consider whether the non-parole period was manifestly excessive.
The appellant accepts that the head sentence of 8 years' imprisonment imposed by the sentencing judge is the appropriate head sentence in all the circumstances of this case. However, the appellant submits that a lower non-parole period should have been imposed. The Crown submits that this court should dismiss the appeal on the ground that no different sentence should have been imposed.
For the following reasons, we are of the view that a sentence of 8 years' imprisonment with a non-parole period of 5 years is of a severity appropriate in all the circumstances of the offence. We would grant leave to appeal on ground 2, allow the appeal and substitute that sentence.

Circumstances of offending

The sentencing judge made the following unchallenged findings as to the circumstances of the offending.[1]
[1] Primary ts 73 - 74, 77 - 78.
On 4 September 2018, the appellant arrived at Perth International Airport on a flight from Dubai. He was travelling on a tourist visa.
Australian Border Force officers selected the appellant for baggage examination. The appellant said that he was aware of the contents of his baggage and that he had packed it himself. The officers conducted swab tests on two bottles of shampoo in the appellant's luggage, which returned a presumptive positive reading for cocaine. Further tests of the liquid contained within the bottles also returned presumptive positive readings for cocaine.
After learning that the tests had returned positive readings, the appellant attempted to avoid apprehension by fleeing from the arrivals hall of the airport. The appellant exited the terminal and was observed on CCTV cameras removing his outer layer of clothing in order to change his appearance. Border Force officers later discovered the appellant hiding in bushland a short distance away from the terminal. He was arrested and transferred into the custody of the Australian Federal Police.
Forensic testing of the seized items in the appellant's baggage revealed that liquid cocaine was secreted inside four toiletry bottles. The total net weight of the liquid in the bottles was 2.295 kg. A sample of the liquid was found to contain 58% of pure cocaine. The total weight of pure cocaine was 1.331 kg. A marketable quantity of cocaine for the purposes of the Commonwealth Criminal Code is an amount between 2 g and 2 kg.[2] The cocaine had an estimated value of between $240,000 and $570,000.[3]
[2] See sch 4 (item 41) of the Criminal Code Regulations 2002 (Cth) as at 4 September 2018. See now, sch 2 (item 43) of the Criminal Code Regulations 2019 (Cth).
[3] Primary ts 76.
The appellant participated in a recorded interview with Australian Federal Police officers. The appellant said that he was planning to be in Australia for two weeks, and planned to leave on about 18 September 2018. The sentencing judge found that the appellant lied during the interview, including by claiming to have paid for the flights himself.
In fact, while the appellant was in Brazil, he had entered into arrangements to courier drugs to Australia. In return for his cooperation, the appellant would receive an all-expenses paid holiday to Australia.
The appellant was present when other people packed liquid cocaine into the four toiletry bottles. The appellant was aware that the substance being packed into the bottles was cocaine, but was not aware of its quantity or its purity. The appellant then packed the four toiletry bottles into his luggage. He had been provided with a phone number to contact upon landing in Australia. The appellant's role was a courier who knowingly brought cocaine into Australia, who was willing to travel from Perth to the east coast of Australia once he had received further instructions to deliver the cocaine to representatives of the drug-dealing syndicate.

Personal circumstances

The sentencing judge made the following unchallenged findings as to the appellant's personal circumstances.[4]
[4] Primary ts 75.
The appellant was 36 years old at the time of the offending. He was born in Brazil, where he completed high school. The appellant moved to the United States in 1999, when he was 19 years of age. He lived in Miami, Florida, where he operated a successful business manufacturing and installing drapery.
The appellant separated from his wife in 2014 and they divorced in 2016. He has an 11-year-old daughter from that relationship. The appellant's former wife and daughter live in Miami. The remainder of his immediate family live in Brazil, including his 62-year-old mother. The appellant has no prior convictions in Australia, Brazil or the United States. He did not suffer from physical or mental health issues.

The sentencing judge's approach

The sentencing judge took into account the effect of a sentence of imprisonment on the appellant, who would be unlikely to be visited by family or friends while imprisoned and who would miss a significant part of his daughter's childhood.[5]
[5] Primary ts 75.
The sentencing judge identified two aggravating factors of the appellant's offending:[6]
(1)The amount of cocaine in the appellant's possession was substantial.
(2)After his luggage was searched and he learned of the presumptive positive readings for cocaine, the appellant fled from the airport and removed some of his clothing.
[6] Primary ts 76.
The sentencing judge identified the following mitigating factors:[7]
(1)The appellant pleaded guilty at the earliest reasonable opportunity. While not required to do so in sentencing a federal offender, the sentencing judge indicated that he allowed a discount of 25% from the sentence his Honour otherwise would have imposed if the appellant had been found guilty of the offence after trial.[8]
(2)The appellant provided some limited assistance to authorities after his arrest in 2018, described as being of low value.
(3)The appellant showed contrition and remorse for the offence following his arrest, which was indicated by his plea of guilty and his behaviour in custody on remand.
(4)The appellant had taken steps to rehabilitate himself, completing various courses whilst on remand and attempting to improve his English skills.
(5)The appellant was of previous good character.
[7] Primary ts 76.
[8] Primary ts 78.
The sentencing judge referred to the matters he was required to consider by s 16A(1) of the Crimes Act 1914 (Cth). His Honour observed:[9]
In considering the severity of the offence and the nature and circumstances of [its] commission, I must take into account the position in which cocaine is regarded in the hierarchy of drugs.
Cocaine, like heroin and methylamphetamine, is viewed as being at the top end of the scale of seriousness in relation to drugs. The danger of the circulation of a drug like cocaine in the community is well known. The need for deterrence, both personal and general, has been emphasised in many appeal court decisions in Australia.
Considerations personal to an offender will always be of significance but must in the context of cases such as this take second place to the need for deterrence.
(emphasis added)
[9] Primary ts 77.
The sentencing judge then imposed a sentence of 8 years' imprisonment, with a non-parole period of 5 years and 4 months. The appellant had been in custody since his arrest, and the sentence was backdated to 4 September 2018 to take account of that time served on remand.

Ground 2: the position of cocaine in the hierarchy of drugs

By ground 2, the appellant contends that the emphasised parts of the passage of the sentencing judge's reasons quoted at [21] above reveal express error. The Crown concedes that this is the case, and that his Honour's view is inconsistent with the structure of the Criminal Code provisions which create the offence and similar offences.
The appellant was convicted of an offence against s 307.2(1) of the Criminal Code. That section provides:
(1)A person commits an offence if:
(a)the person imports or exports a substance; and
(b)the substance is a border controlled drug or border controlled plant; and
(c)the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2)The fault element for paragraph (1)(b) is recklessness.
(3)Absolute liability applies to paragraph (1)(c).
(4)Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
Note:A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
Section 307.2 appears in ch 9, pt 9.1 div 307 of the Criminal Code. Other provisions of div 307 create offences of importing or exporting a border controlled drug or border controlled plant. For concision, we will refer only to importing a border controlled drug (the circumstances of this case) in the summary below.
Section 307.1 creates an offence of importing a commercial quantity of a border controlled drug. The elements of the offence are the same as in s 307.2, save that:
(1)the Crown must prove that the quantity of the border controlled drug is a commercial quantity (rather than a marketable quantity); and
(2)there is no equivalent of the defence of an absence of intention to sell, which is provided for in s 307.2(4).
The maximum penalty for an offence against s 307.1 is imprisonment for life or 7,500 penalty units, or both.
Section 307.3 creates an offence of importing a border controlled drug. The elements of the offence are the same as for s 307.2, save that there is no requirement for the Crown to prove the quantity of the border controlled drug. The maximum penalty for an offence against s 307.3 is imprisonment for 10 years or 2,000 penalty units, or both.
Section 307.4 creates an offence of importing a border controlled drug. The elements of the offence are the same as for s 307.3, save that there is no equivalent of the defence of an absence of intention to sell, which is provided for in s 307.2(4) and s 307.3(3). The maximum penalty for an offence against s 307.4 is imprisonment for 2 years or 400 penalty units, or both.
In the above manner, the Commonwealth Parliament has provided for a series of graduated penalties which largely depend on whether the quantity of the imported border controlled drug is a 'commercial quantity', a 'marketable quantity', or neither.
Border controlled drugs, and the commercial and marketable quantities of those drugs, were prescribed by reg 5D of, and sch 4 to, the Criminal Code Regulations 2002 (Cth). Cocaine, heroin and methamphetamine were all prescribed as border controlled drugs. The marketable quantity is 2 g for each of cocaine, heroin and methamphetamine. The commercial quantity is 2 kg for cocaine, 1.5 kg for heroin and 750 g for methamphetamine. These were the provisions in force at the time of the appellant's offence. The current provisions of the Criminal Code Regulations 2019 (Cth) are to the same substantive effect.
Predecessor offence creating provisions in the Customs Act1901 (Cth), which adopted a similar structure, were considered by the High Court in Adams v The Queen.[10] In that case, the offender was convicted of importing many times the commercial quantity of MDMA, commonly known as ecstasy. In the course of sentencing the offender, the trial judge in that case had observed:[11]
The serious nature of your offending is indicated by the maximum penalty of life imprisonment that has been prescribed by the legislature. In general terms the courts equate ecstasy, in terms of sentencing, as being similar to heroin.
[10] Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143.
[11] Adams [5].
In the High Court the plurality (Gleeson CJ, Hayne, Crennan and Kiefel JJ) made the following observations in relation to this passage:[12]
The second sentence was an observation that, generally speaking, importing or possessing ecstasy is taken as seriously for sentencing purposes as importing or possessing heroin. Since the maximum penalty prescribed by the Customs Act for possessing a commercial quantity of both was life imprisonment, and since the appellant possessed many times the commercial quantity of MDMA, the observation, in the context of the present case, was unexceptionable.
[12] Adams [6].
In Adams, the offender submitted that he should have been sentenced on the basis that MDMA was less harmful to users and to society than heroin. The plurality identified the following difficulties in assessing the harm caused by a particular type of drug:[13]
Harm to users and society is a protean concept. Counsel had understandable difficulty explaining exactly what the proposition means, let alone demonstrating, by evidence available to the sentencing judge or matters of which a court could take judicial notice, that it was true. What kinds of user, and what kinds of harm to society, are under consideration? The social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers. As the Victorian Court of Appeal pointed out in R v Pidoto and O'Dea [(2006) 14 VR 269 at 282 [59]], questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community.' Furthermore, in relation to some of these matters, scientific knowledge changes, and opinions differ, over time. Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken.
[13] Adams [9].
The plurality then went on to identify a further difficulty with the offender's argument, based on the structure of the Customs Act:[14]
An equally serious difficulty for the appellant's argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties. In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme. … A similar problem in relation to Victorian legislation underlay the decision in Pidoto and O'Dea noted above.
Of course, the fixing of a maximum penalty is not the end of the matter… But there is nothing in the Customs Act, or the evidence, or the demonstrated state of available knowledge or opinion, which requires or permits a court to sentence on the basis that possessing a commercial quantity of MDMA is in some way less anti-social than possessing a commercial quantity of heroin. (emphasis added) (some citations omitted).
[14] Adams [10] - [11].
R v Pidoto[15] was referred to with approval in the above passages. In Pidoto, the Victorian Court of Appeal comprised of five judges had considered the similarly structured provisions of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). In a joint judgment, Maxwell P, Buchanan, Vincent and Eames JJA held that, as a matter of statutory construction, the harmfulness of the drug was irrelevant to the exercise of the sentencing discretion under that Act.[16] The sentencing judge in Pidoto was held to have erred in referring to his assessment of the harm associated with using MDMA.[17]
[15] R v Pidoto [2006] VSCA 185; (2006) 14 VR 269.
[16] Pidoto [3] - [6].
[17] Pidoto [81] - [83].

In The State of Western Australia v Higgins,[18] this court considered the application of the approach taken in Pidotoand Adams to the Misuse of Drugs Act 1981 (WA). Steytler P, with whom McLure and Miller JJA agreed, distinguished those cases by reference to the different structure and provisions of the WA Act. His Honour held that relative harm of particular types of drugs was not a mandatory irrelevant consideration under the WA Act,[19] although it was not ordinarily a factor to which much weight should, or can, be given.[20]
[18] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302.
[19] Higgins [101].
[20] Higgins [102] - [107].
Steytler P went on to consider the way in which offences involving MDMA had been dealt with under the WA Act. His Honour noted a number of cases supporting the proposition that MDMA has been treated as seriously, for the purposes of sentencing, as methylamphetamine, heroin and cocaine. In doing so, Steytler P referred to the following passage from of the reasons of Malcolm CJ, with whom Kennedy and Franklyn JJ agreed, in Darwell v The Queen:[21]
It is important to note that methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If not equated to heroin and cocaine, it is close enough to those drugs to be regarded as in the same category.
[21] Darwell v The Queen (1997) 94 A Crim R 35, 40.
The impugned observations of the sentencing judge in the present case echo the language of Malcolm CJ in Darwell. If they had been made in the context of sentencing for an offence under the WA Act, the observations may have been unobjectionable. However, in the circumstances of this case, they seem to us to be inconsistent with the structure of div 307 of the Criminal Code.
As the decision in Adams illustrates, there is no inherent vice in regarding offences involving different types of drugs as the same for the purposes of sentencing. The direction in Adams, that:
In general terms the courts equate ecstasy, in terms of sentencing, as being similar to heroin …
was regarded as 'unexceptionable' in the circumstances of that case, where the maximum penalties for the drugs were the same and the offender was in possession of many times the commercial quantity of MDMA. Nor is a sentencing judge prevented from making some inquiries about the characteristics and use of a particular drug which may be unknown to the court.[22]
[22] Hibgame v The Queen [2014] VSCA 26 [49] - [52].
However, in the present case, the appellant was charged with possessing a total pure weight of 1.331 kg of cocaine. That was a marketable quantity of cocaine, but well under the commercial quantity of 2 kg. However, 1.331 kg of methamphetamine would have been a commercial quantity of that drug (the commercial quantity being 750 g). That amount of heroin would have been under the prescribed commercial quantity of 1.5 kg for heroin by only 169 g. In identifying different commercial quantities of cocaine, heroin and methamphetamine, Parliament has made a judgement as to the seriousness of possession of particular quantities of those border controlled drugs.
In our view, the sentencing judge, by referring to 'the hierarchy of drugs', and in viewing cocaine, heroin and methamphetamine to be at 'the top end of the scale of seriousness in relation to drugs', has identified a hierarchy which is inconsistent with that provided for by Parliament. His Honour has, with respect, applied a 'judicially constructed harm-based gradation of penalties' which is inconsistent with the structure of div 307 of the Criminal Code. The Criminal Code and Crimes Act neither permitted nor required the sentencing judge to sentence the appellant by reference to 'the position in which cocaine is regarded in the hierarchy of drugs', being 'at the top end of the scale of seriousness in relation to drugs' and equivalent to methamphetamine and heroin.
In our view, this error is material.[23] It is capable of affecting the sentence imposed. Further, as it was taken into account by the sentencing judge in considering the severity of the offence, on the face of things it appears to have actually affected the sentence his Honour imposed.
[23] See Harding v The State of Western Australia [2015] WASCA 27 [73] - [74], adopted in Jackamarra v The State of Western Australia [2019] WASCA 150 [52] and Jiang v The State of Western Australia [2020] WASCA 7 [61].
Therefore, ground 2 is established. It is unnecessary to deal with ground 1 although, as will be apparent from the sentence we would impose on resentencing, we would not consider the non-parole period imposed by the sentencing judge to be manifestly excessive.

Resentencing

Material express error in the sentencing judge's reasons having been established, it is necessary for this court to consider, afresh and for itself, the sentence which should be imposed. The court is required to determine the sentence that is of a severity appropriate in all the circumstances of the offence.[24] In doing so, the court must have regard to the matters referred to in s 16A(2) of the Crimes Act so far as they are relevant and known to the court. This court must allow the appeal if it is of the opinion that a different sentence should have been imposed.[25]
[24] Section 16A(1) of the Crimes Act 1914 (Cth).
[25] Section 31(4)(a) of the Criminal Appeals Act 2004 (WA).
The appellant accepts that the head sentence of 8 years' imprisonment was an appropriate sentence in all the circumstances of the offence. We agree with that assessment.
The appellant submits that a lower non-parole period ought to be imposed, particularly having regard to the appellant's good prospects of rehabilitation. The Crown submits that no different non-parole period ought to be imposed. It is therefore appropriate for these reasons to focus on the contentious issue of the appropriate non-parole period.

Setting the non‑parole period: general principles

The following summary of the general principles governing the setting of non-parole periods for federal offences is taken from the court's judgment in Stipkovich v The Queen.[26]
[26] Stipkovich v The Queen [2018] WASCA 63 [29] - [35].
The Crimes Act creates a separate and exhaustive regime for fixing non‑parole periods for sentences of imprisonment for federal offences.[27] In applying that regime, the court has no regard to sentencing practice and decisions under the State regime for non‑parole periods.
[27] Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174 [52].
Generally, with specified exceptions, a court must fix a single non‑parole period when sentencing for a federal offence and when imposing a sentence exceeding 3 years' imprisonment upon a person not already serving a federal sentence.[28]
[28] Crimes Act s 19AB.
The fixing of a non‑parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender.[29]
[29] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
The length of the non‑parole period should be the minimum time that a judge determines justice requires that the offender must serve, having regard to all the circumstances of the offence.[30] The evident legislative intention is for a non‑parole period to provide for mitigation of the punishment of the prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires must be served, having regard to all the circumstances of the offence.[31]
[30] Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367.
[31] Power v The Queen (1974) 131 CLR 623, 628 ‑ 629; Sayed v The Queen [2012] WASCA 17 [120]; Lam v The Queen [2014] WASCA 114 [45].
When fixing the non‑parole period, the court must consider all of the circumstances of the case, including the matters listed in s 16A(1) and (2) of the Crimes Act.[32] The considerations which a sentencing judge must take into account when fixing a non‑parole period are the same as those applicable to the setting of the head sentence. However, the weight to be attached to those factors, and the manner in which they are relevant, will differ due to the different purposes underlying each function.[33] Sentencing factors counting against mitigation may increase both the length of the head sentence and the proportion that the non‑parole period bears to the head sentence.[34] The converse is true of factors in favour of mitigation.[35]
[32] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [40].
[33] Bugmy (531); Sayed [121]; Lam [47].
[34] Lam [56].
[35] Lam [57].
The following have been described as the main factors relevant to the determination, in any case, of the appropriate ratio between the non‑parole period and the head sentence:[36]
Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see R v Bernier (1998) 102 A Crim R 44 at 49 and R v Sweet (2001) 125 A Crim R 341 at 346), the seriousness of the offence and the prospects of rehabilitation (see R v Stitt (1998) 102 A Crim R 428 and R v Meloh [2001] NSWCCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see R v Drazkiewicz, unreported, NSWCCA, Library No 60705, 23 November 1993).
[36] Bick v The Queen [2006] NSWCCA 408 [15], cited with approval in Sayed [122].
The discretion to fix the non‑parole period is not constrained by a requirement that the non-parole period should bear a particular relationship with the head sentence. It is wrong to approach the discretion from a judicially determined percentage as a norm or starting point.[37]
[37] Hili [44].
In Lam,[38] McLure P (Buss & Newnes JJA agreeing) noted that this court had applied the principles approved by the High Court in Hili. Her Honour recognised that Hili establishes that it is wrong to rely on a fixed or narrow range expressed as a proportion or percentage of the head sentence as a starting point (or an end point) for determining the non-parole period. To the extent that the non-parole periods customarily imposed reflect erroneous past practice, they are an unreliable yardstick or benchmark for consistency purposes.[39] Similarly, in Stipkovich,[40] the court recognised that past practice must be treated with caution because, to an extent at least, it reflected an erroneous approach of presuming a norm in that range, departure from which must be justified.

Maximum penalty

[38] Lam [49].

[39] Lam [58].

[40] Stipkovich [40].

An offence against s 307.2(1) carries a maximum penalty of 25 years' imprisonment, or a fine of $1,050,000, or both.

Customary sentencing standards

As this court observed in Samardali v The Queen:[41]
When sentencing a Federal offender, a court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence: s 16A(1) of the Crimes Act. A court must consider the factors set out in s 16A(2) of the Crimes Act if those matters are relevant and known to the court, although the list of factors is not exhaustive. Other common law principles of sentencing, including totality, apply in order to determine a sentence of a severity appropriate in all of the circumstances of the case. (citation omitted)
[41] Samardali v The Queen [2018] WASCA 220 [61].
Well‑known sentencing considerations for drug offences were outlined by Buss JA in R v Ng:[42]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
[42] See R v Ng [2012] WASCA 180 [34].
The appellant refers to the decision of the Queensland Court of Appeal in R v Cunha,[43] and the comparative cases referred to in that decision.[44] Cunha was in many respects similar to the present case. Mr Cunha, a 26-year-old Brazilian national of prior good character and good prospects of rehabilitation, agreed to act as a courier transporting a pure weight of about 1.33 kg of cocaine. On his plea of guilty, Mr Cunha was sentenced to 8 years' imprisonment with a non-parole period of 5 years. An appeal against that sentence on the ground of manifest excess was dismissed.
[43] R v Cunha [2017] QCA 6.
[44] Cunha [56] - [75].
The appellant also placed particular emphasis on the decision of the Queensland Court of Appeal in R v Jimson.[45] The offender in that case imported a pure weight of about 1.7 kg of cocaine, secreted in her luggage, into Australia from South America. She had instructions to carry the drugs from Brisbane to Sydney after her entry into Australia. The circumstances of the offending were broadly similar to those of the present case, although the offender in Jimson came from an impoverished background in Malaysia. The court dismissed an appeal against a sentence of 8 years' imprisonment with a non-parole period of 4 years 6 months on the ground that it was manifestly excessive.
[45] R v Jimson [2009] QCA 183.
Jimson is one of the cases decided prior to Hili which needs to be treated with some caution, particularly as the court applied its own earlier decision which had proceeded on the basis that:[46]
the setting of a non-parole period of 53 per cent of the sentence was consistent with the practice in other drug importation cases in this and other States of setting the non-parole period beyond the halfway mark of the head sentence, at a point to be determined by the circumstances of the case.
[46] Jimson [16] - [17], citing R v Mokoena [2009] QCA 36.
The appellant also referred to Mohlasedi v The Queen,[47] where this court dismissed an appeal against a sentence of 18 years' imprisonment, with a non-parole period of 10 years, for importing a pure weight of 1,462 g of heroin. The circumstances of that case are so different from those of the present case that it is not a useful comparator.
[47] Mohlasedi v The Queen [2006] WASCA 267.
We have also had regard to the approach reflected in Stipkovich and cases considered in that decision,[48] to which the respondent referred.

Seriousness of offending and personal circumstances

[48] Stipkovich [59]. See also, for a more recent example of the sentencing for this offence in somewhat similar circumstances, Gwardys v The Queen [2019] NSWCCA 62.

As the sentencing judge recognised, the appellant's offending was serious. The appellant consciously chose to import a significant quantity of drugs into Australia. While it is true the appellant did not know of the exact quantity and purity of the drugs he was importing, the sentencing judge found that he would have been aware that it was a substantial quantity.[49] The sentencing judge also found that the importation was clearly planned and carried out with the full knowledge of the risks involved.
[49] Primary ts 77.
There was no evidence that the appellant was to be paid a pecuniary sum for his efforts in importing the drugs. However, the offending was still carried out for a self-serving motive. The appellant carried out the offending in order to obtain an in-kind benefit, namely, an all-expenses paid holiday.
The appellant's personal circumstances are noted above. There is substantial mitigation to be found in his prior good character, plea of guilty, cooperation, remorse and steps towards rehabilitation. However, the weight to be given to those factors is reduced by the significance of personal and general deterrence as sentencing considerations. While the impact of imprisonment far from his home is a factor to be taken into account, that was a risk which the appellant took when he decided to import a significant quantity of dangerous drugs into Australia.

Conclusion

Having regard to all of the above matters, we are of the view that a sentence of 8 years' imprisonment with a non-parole period of 5 years is of a severity appropriate in all the circumstances of the offence (including those personal to the appellant). It follows that we are of the opinion that a different sentence should have been imposed and the appeal should be allowed.
The appeal was instituted a little over two months out of time. The delay is explained by the need for the appellant to obtain legal aid and his need for assistance in instituting the appeal given that English was his second language.
We would make the following orders in the appeal:
(1)The time for the appellant to commence this appeal is extended to 26 June 2019.
(2)Leave to appeal is granted on ground 2.
(3)The appeal is allowed.
(4)The sentence imposed by the District Court of Western Australia on Perth indictment 1893 of 2018 is set aside and there is substituted a term of 8 years' imprisonment with a non-parole period of 5 years.
(5)The sentence substituted by order 4 of these orders is taken to have commenced on 4 September 2018.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell
18 MARCH 2020