Parker v The Queen

[2020] NSWCCA 206

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Parker v R [2020] NSWCCA 206

Hearing dates:

21 May 2020

Decision date:

21 August 2020

Before:

R A Hulme J at [1];
Wright J at [85];
N Adams J at [170]

Decision:

In respect of conviction:

(1) Leave to allow Ground 1(a), (b) and (c) refused pursuant to r 4 of the Criminal Appeal Rules.

(2) Application for leave to appeal against conviction dismissed.

In respect of sentence:

(1) The applicant has leave to appeal.

(2) The appeal is dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – circumstantial case – coincidence evidence – no coincidence reasoning because no reliance on improbability of similarities – similarities proof of involvement in drug syndicate

CRIME – appeals – appeal against sentence – manifest excess – stern but not excessive

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s5(1)(c)

Criminal Appeal Rules, r 4

Criminal Code (Cth), ss 11.2(1), 300.2, 305.3(1), 307.1(1), 311.4, 400.4(1), 400.5(1)

Evidence Act 1995 (NSW), Part 3.6, ss 97(1)(b), 98(1)(b)

Cases Cited:

Barrett v R [2020] NSWCCA 11

El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10

Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50

Heng v R [2019] NSWCCA 317

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

Hughes v R [2018] NSWCCA 2

Jaafar v R [2017] NSWCCA 223

Keung, Bow, Liu v R [2008] NSWCCA 193; 191 A Crim R 317

Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270

Law v R [2006] NSWCCA 100

Mac v R [2014] NSWCCA 24

Moodie v R [2020] NSWCCA 160

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Kassir [2020] NSWCCA 88

R v Lee [2007] NSWCCA 234

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

R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345

R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531

The Queen v Falzon (2018) 264 CLR 361; [2018] HCA 29

Tu v R [2011] NSWCCA 31

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

Xiao v R [2018] NSWCCA 4

Zaugg v R [2020] NSWCCA 53

Category:

Principal judgment

Parties:

Anthony Parker (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr T Edwards (Applicant)
Mr S Duggan (Crown)

Solicitors:
Just Defence Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2014/279153

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

15 December 2017

Before:

Sweeney DCJ

File Number(s):

2014/279153

Judgment

1. R A HULME J: Mr Anthony Parker (the applicant) was found guilty by a jury on 19 October 2017 of three counts of importing a commercial quantity of cocaine. (On sentence, there was a finding that the total amount of pure cocaine imported was about 125kg.)

2. In addition, the applicant pleaded guilty to five counts of dealing with proceeds of crime, including $5.37 million in cash that was found in his home.

3. On 15 December 2017, her Honour Judge Sweeney imposed a total effective sentence of 33 years with a non-parole period of 22 years.

4. The applicant seeks leave to appeal against conviction upon the following grounds:

1. Miscarriage of justice:

1. A miscarriage of justice resulted from the Crown's reliance on tendency/coincidence reasoning for proving the guilt of the accused in respect of each count;

2. A miscarriage of justice resulted from the failure of the trial judge to warn the jury against impermissible tendency/coincidence reasoning;

3. A miscarriage of justice resulted in circumstances where there had been non-compliance with Part 3.6 of the Evidence Act 1995 (NSW).

5. Leave to appeal against sentence is sought upon the sole ground that the sentence is manifestly excessive.

Overview

6. The Crown case was that the applicant worked at Sydney airport and thereby had access to baggage unloaded from arriving flights. On 12 occasions from May 2013 to April 2014, he retrieved cocaine from bags arriving on flights from Chile, left the airport to deliver it to a recipient, then returned to the airport and resumed his duties. The Crown contended that the financial reward to the applicant was substantial, there being evidence of millions of dollars in cash found at his home and considerable unexplained wealth.

7. The three counts in the indictment alleged the following:

Count 1: A series of importations between 1 January 2013 and 10 February 2014, contrary to ss 307.1(1) and 311.4 of the Criminal Code (Cth).

Count 2: An importation on 25 February 2014, contrary to s 307.1(1) of the Criminal Code.

Count 3: An importation on 13 April 2014, contrary to s 307.1(1) of the Criminal Code.

8. The applicant was originally to be indicted with three co-accused: Siobhan Oliver (his partner), Denese Carter (his mother) and Phillip Scahill (an accountant). The Crown served upon all four accused a coincidence notice, pursuant to s 98 of the Evidence Act 1995 (NSW). The applicant's trial for the importation offences was separated after he pleaded guilty to the proceeds of crime offences. From that point, there was no reliance by the Crown upon the s 98 notice (or any other notice under ss 97 or 98).

The Crown case

9. The applicant was employed as a technician who carried out maintenance and repairs on conveyor belts at Sydney International Airport. On the relevant occasions, he worked the 6pm – 6am nightshift. He had an airport security identification card that enabled him to come and go without any customs vetting.

10. The various baggage conveyor belts and carousels in the airport were identified by a number. Baggage conveyor belt number 14 ("Belt 14") was within a secure area of the airport and was used to deliver oversized baggage to the arrivals hall above. It had two small “void” areas that were concealed from CCTV.

11. Qantas flight QF28 flew from Santiago to Sydney. Oversized passenger luggage from this flight was, on all relevant occasions, delivered to the arrivals hall via Belt 14.

12. The Crown case was circumstantial. In summing up, the learned judge told the jury:

"The Crown asks you to take into account all the circumstances it relies on in relation to all three counts".

13. The Crown relied on the $5.37 million cash found in the applicant’s home on 22 July 2014. In addition, the Crown adduced evidence of the accused having access to large amounts of cash in 2013 and the first half of 2014 that he spent, gifted or "lent" to others. The Crown contended that such money flowed from the applicant’s involvement in drug importation.

14. The Crown relied on all of the other circumstances (that is, aside from the proceeds of crime circumstances) in demonstrating a "consistency of approach" (the judge called it “consistent methodology”) that helped prove all three counts. The Crown case was that, when all the circumstances were considered, “the clear and only picture that emerges is that the accused is an active member of a syndicate with the role where he’s been importing cocaine into Australia and he’s guilty of all three offences on the indictment”. Many of these circumstances were summarised in a table of circumstances prepared by an AFP officer.

15. It is convenient to deal with Count 3 first, as this was the only occasion on which drugs were intercepted.

Count 3

16. QF28 landed on 13 April 2014 at 4.39pm. Two oversized kiteboard bags were seized on the tarmac after they were unloaded from the flight and before being taken to Belt 14. Within the bags were a number of blocks that contained a total of 50.7kg of pure cocaine.

17. The two bags had baggage tags linking them to passengers on the flight but these passengers had not checked in any oversized baggage.

18. CCTV recorded the applicant's presence at Belt 14 at 4:47pm and 5:03pm. He was carrying two black garbage bags. (It was the Crown case, largely based upon the events pertaining to Count 2, that the applicant put the cocaine he retrieved from arriving luggage in black plastic garbage bags.) The applicant had no work-related reason to be at Belt 14: his shift did not start until 6pm; he was not paid overtime; he had no tools; various maintenance records logged no issues with Belt 14 on that day (though these could be flawed); and Belt 14 was outside his area of responsibility.

19. According to CCTV and the evidence of another employee, at 5:31pm the applicant was at Carousel 9 – the conveyer belt allocated to normal-sized bags from QF28. There was no work-related reason for the applicant to be there either.

20. At 5:42pm, the applicant and his partner had a telephone conversation. His partner asked, “okay all good”? He replied, “nah no good”. The Crown suggested that the applicant was communicating that the drugs had not arrived.

21. The Crown argued that the jury could infer that the applicant was expecting to receive the drugs, he had been communicating with someone to coordinate their arrival, and he was therefore involved in their importation. Of course, the circumstances reviewed above were not sufficient to prove the charge beyond reasonable doubt. The Crown relied upon circumstances pertaining to the other two counts as well (e.g. for the significance of the black garbage bags).

Count 2

22. On 25 February 2014, the applicant arrived at work at 4:49pm for a 6pm shift. Belt 14 had been allocated to QF28, which arrived at 6:30pm.

23. A black Prolimit sports bag was loaded on one end of Belt 14, next to a bike box. From the way it was handled, it appeared heavy. At the other end, in the arrivals hall, the bag had changed places on the belt with the bike box. From the way it was handled, it now appeared light. Evidence was led from the baggage handlers to this effect.

24. CCTV placed the applicant at Belt 14 at 6:35pm (five minutes after the flight's arrival). There was no work-related reason to be there. He brought empty black garbage bags with him. He left at 6:54pm and returned at 7:48pm. He was recorded on CCTV loading black garbage bags on to a buggy at 7.52pm. He was logged leaving the airport’s secure area in the work utility vehicle shortly after. There was no work-related reason to leave.

25. As the judge summarised for the jury, the Crown case was that the applicant removed bags containing cocaine from the black sports bag, put the cocaine in garbage bags and left the airport to deliver it to someone.

26. A discarded Prolimit sports bag was found a few days later. It contained another sports bag that contained airline pillows, sheets and blankets. A subsequent AFP experiment using blocks of the same size as were found to contain cocaine in the 13 April 2014 importation suggested a capacity of around 24 x 1kg blocks. Based upon the average purity of cocaine imported into Australia at the time, this would equate to pure cocaine well in excess of the 2kg commercial quantity threshold. A presumptive test for cocaine on linen inside the bag was positive but a confirmatory test of a swab of the bag itself was negative. On the Crown case, the difference in the results was explained by the difference in the areas tested.

Count 1

27. Count 1 was brought pursuant to s 311.4 of the Criminal Code, allowing the Crown to prove the quantity element by proving that the applicant was engaged in an organised commercial activity that involved repeated imports, and that the total quantity of those imports amounted to a commercial quantity. (The Crown relied upon the circumstances pertaining to all three counts.)

28. A Prolimit golf bag was found in an airport bin on 10 February 2014, along with two baggage tags. This returned a positive presumptive test result for cocaine. About three other Prolimit golf bags were found in the lost luggage hall prior to 10 February 2014. All these bags contained LAN airline bedding.

29. A search of one of the void areas under Belt 14 revealed more LAN airline bedding. Bag tags found in the area on this date were associated with QF28 arrivals in Sydney on 25 August 2013, 26 September 2013, 20 October 2013, 15 December 2013 and 9 February 2014. Bag tags found in the same area on 12 and 20 March 2014 were associated with arrivals of QF28 on 25 August 2013 and 15 December 2013. As was the case with the passengers associated with the baggage tags on the bags seized on 13 April 2014, the passengers named on all of these baggage tags provided evidence that they had collected their entire luggage and had not checked in any oversize bags.

30. All of these dates were included in the 10 occasions of QF28 arrivals itemised in the table of circumstances (Exh A Tab 14) when the applicant had (with only one exception) arrived well before the commencement of his shift and (with no exceptions) had left the secure area of the airport sometime later in the night. In 9 of the 10 instances of his leaving the airport he drove the work utility; the single exception being on 26 September 2013 when he was absent for only 5 minutes and attended the food court. The table also included the arrival times of QF28 and a confirmation that on each occasion there was no record of any maintenance issue requiring a technician to be at Belt 14. Similar details were included for the dates relevant to Counts 2 and 3.

31. On the Crown case, this demonstrated a “consistency of approach” (or "consistent methodology”) whereby cocaine would be imported in Prolimit sports bags with fake baggage tags, intercepted by the applicant in Belt 14’s void area, emptied into garbage bags and smuggled out of the airport in the utility vehicle. The Crown argued that the jury could include the circumstances used to prove Counts 2 and 3 in determining whether Count 1 was proved.

32. When the jury considered “the commercial aspect and the number of times that multiple Prolimit bags have been used”, they would be satisfied as to the commercial quantity element.

Defence case

33. The applicant gave evidence. He asserted, inter alia:

1. He only left in the work utility to get parts or to get KFC.

2. The garbage bags were used to clean up rubbish under the conveyer belts.

3. The phone conversation with his girlfriend in Count 3 ("nah, no good") was a reference to his injured leg.

4. Although he accepted guilt for the proceeds offences, there was a more benign explanation for the cash found at his house: he was hiding it for another person who was involved in crime.

34. The defence relied upon the lack of direct evidence. In particular, trial counsel drew attention to there being no evidence of communication between the applicant and anyone offshore despite the surveillance of his phone.

35. The defence noted that there was no conclusive proof that drugs were found in relation to Counts 1 and 2. In relation to Count 3, trial counsel argued that the drugs were never imported because they were seized on the tarmac.

36. Regarding the table of circumstances, counsel drew out variations and inconsistencies between each column, in particular regarding how early the applicant arrived at work and how long he was gone when he left the airport. Counsel suggested that someone smuggling drugs through customs in a work vehicle would be gone for the shortest time possible, while the applicant was away for up to three hours.

37. Regarding the bag tag evidence, counsel submitted that the Crown could not rule out the involvement of the passengers. Counsel also disputed the provenance of both bag tags and the Prolimit sports bags that were found.

Applicant's submissions

38. The applicant contends that there was tendency and/or coincidence reasoning involved in the manner the Crown presented its case. This was impermissible because no notice pursuant to either s 97(1)(b) or s 98(1)(b) of the Evidence Act had been given. Therefore, the trial judge was not called upon to rule upon the use of evidence for a tendency and/or coincidence purpose. Accordingly, the trial judge should have directed the jury not to engage in such reasoning.

39. It was acknowledged that experienced defence counsel made no objection and did not seek any direction prohibiting the jury engaging in such reasoning.

40. The applicant impugned the Crown's reliance upon a “consistent methodology” and the table of circumstances. In the applicant’s submission, the Crown used this material to demonstrate that the applicant had a tendency to act in a certain way (intercepting and importing cocaine), and that it was unlikely that each circumstance occurred coincidentally.

41. The table in Exhibit A, Tab 14 laid bare the similarities in the circumstances "in a way that made it improbable that those incidents occurred coincidentally". Through the table, the Crown embraced the same reasoning outlined in its abandoned s 98 notice.

42. Proof of the quantity element in Counts 1 and 2 was said to be purely reliant on tendency and coincidence reasoning.

43. The prosecutor invited the jury to reason this way:

“So now I’m going to list through, I’ve got 46 circumstances that the Crown says you can look at when examining the evidence for all of the counts on the indictment."

44. This was reinforced in the trial judge’s summing up:

“The Crown asks you to take into account all the circumstances it relies on in relation to all three counts, in respect of each of them, and you can do that. You cannot take the evidence into account in the sense of thinking, if you find one or more of the offences proved, that, if the accused committed the offence, well, then he must have committed the other offences. You cannot think, ‘If he committed that offence, he must be the kind of person who commits offences or commits offences involving drugs, and so he must have committed the other offences.’ You cannot reason in that way.

The Crown case is that there was a consistent methodology used in all three offences, so that when you consider the circumstances you will be satisfied beyond reasonable doubt that the Crown has proved the accused’s guilt of each of the offences in counts 1, 2 and 3.

…

The Crown case is that you would consider the evidence in respect of count 2 in the light of the evidence relating to count 3 and count 1, that is, that the circumstances in respect of each count explain or can be explained by the circumstances the Crown relies on in respect of each other count.”

45. The applicant acknowledged that in the first paragraph of the above extract the judge warned against impermissible reasoning but this was undermined immediately by an invitation to use the "consistent methodology" evidence.

46. The applicant submitted that the jury was being asked to “reason back” from Counts 2 and 3, using coincidence/tendency reasoning, to shore up a weak case on Count 1. The applicant noted that no drugs were found and highlighted the dearth of forensic or direct evidence linking him to any of the bag tags. That is, without the methodology evidence, the case for Count 1 was tenuous.

47. The applicant submitted that the methodology could not be admitted as contemporaneous similar fact evidence because the transaction could not be demonstrated without first assuming the guilt of the applicant. Without assuming guilt of the subject charge, the circumstances could not be shown to be linked. In addition, the events were too far apart in time to be considered contemporaneous.

48. In essence, the written submissions for the applicant first sought to show that there was no reason to admit the methodology evidence other than for a tendency or coincidence purpose, which made the evidence inadmissible due to non-compliance with ss 97 and 98 of the Evidence Act. Moreover, had the trial judge engaged in the s 98 consideration, she would have concluded that the similarities were too remote to be sufficiently probative.

49. At the hearing however, the applicant acknowledged that the evidence was cross-admissible for a purpose other than tendency or coincidence reasoning, but he maintained that it was impermissibly used for those purposes as well. He submitted that the Crown's overriding purpose was to establish a modus operandi and so there should have been compliance with the provisions of s 98.

50. The applicant submitted that a direction should have been given that the jury could not conclude from Counts 2 and 3 that there was a modus operandi, then assume that modus operandi was in place for Count 1. The "consistent methodology" reasoning advanced by the Crown made Count 1 immeasurably stronger and proof of the quantity involved in Count 2 depended upon it.

45. Counsel had difficulty when asked a number of times at the hearing to articulate the tendency that it was contended the Crown sought to prove, or the jury might have adopted. Ultimately it was described as a tendency "to act in a particular way", namely to remove cocaine from oversized baggage that had come from Chile. It is understandable in these circumstances that coincidence reasoning was more the focus of submissions as the hearing progressed.

46. The applicant's case appeared to be encapsulated in the submission that by reason of "the similarity in the circumstances that were alleged in respect of each of the counts … if [the] jury were satisfied that the accused was involved in one of the offences then they could reason that he was involved in the other offences". In other words, because the jury was asked to analyse the similarities in the circumstances of each alleged importation, coincidence reasoning was being deployed despite the fact that no notice had been given, no determination had been made by the judge as to admissibility, and no direction had been given prohibiting such reasoning.

Crown submissions

53. Once the applicant was to be tried separately from any co-accused, the Crown abandoned reliance on the original coincidence notice.

54. The Crown noted that no application for any ruling or direction was made by either party in respect of the evidence the use of which the applicant now says caused a miscarriage of justice in his trial. There was no application to sever counts. The table of circumstances document was admitted as part of Exhibit A in the Crown case without any objection by the applicant.

55. The Crown submitted that while all coincidence evidence is a form of circumstantial evidence, not all circumstantial evidence demands coincidence reasoning. In this case, coincidence and tendency reasoning was not part of the Crown case.

56. The Crown characterised the present case as analogous with cases in which an accused is charged with possession with intent to supply and evidence of participation in a trafficking business is relevant to proving the necessary intent. It is well settled that such evidence is admissible for that purpose. It is not admitted for a propensity or tendency purpose: The Queen v Falzon (2018) 264 CLR 361; [2018] HCA 29 at [1], [42].

57. The evidence, on the Crown’s argument, was adduced for three purposes.

58. Firstly, it was relevant in showing that each count did not occur in isolation. It was used to prove that the applicant was involved in an ongoing and sophisticated criminal activity that was in turn relevant to whether he participated in the importations as alleged. The system and methodology itself amounted to the crime independent of the propensity or tendency it might otherwise demonstrate.

59. Secondly, the evidence relating to Counts 1 and 2 was relevant to the issue of quantity in circumstances where no actual drug was seized and so the proof of a commercial quantity having been imported was a matter of inference. The sophistication and repetition of the conduct allowed the jury to infer that more than 2kg of cocaine had been imported.

60. Thirdly, the evidence rebutted the applicant’s denial that the $5.37 million cash belonged to someone else. In the Crown’s submission, the jury would use the consistency and sophistication of the conduct in determining whether the cash came from drug importation activities or from elsewhere.

61. Finally, the Crown noted that a specific and unnecessary direction that tendency or coincidence reasoning was impermissible would only have tempted jurors to engage in reasoning that might not otherwise have occurred to them. It was also submitted to be significant that a possibility that the jury could engage in such reasoning did not occur to either party.

Case law

62. Much energy was expended on submissions based on what was asserted to be relevant case law. Upon closer consideration, it is apparent that the cases are more concerned with issues of admissibility of evidence of uncharged misconduct or circumstances indicating a certain propensity. Prominent in the submissions were Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50; R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345; Mac v R [2014] NSWCCA 24.

63. At trial, and in this Court, there was no issue about the cross-admissibility of evidence between the three counts. The issue in this Court, but not in the trial court, was whether the evidence was used in a manner that exceeded the bounds of its cross-admissibility. It is apparent that neither the very experienced counsel appearing for Crown and defence at trial, nor the trial judge herself, perceived any potential for misuse of the evidence.

Consideration

64. Part 3.6 (ss 94 – 101) of the Evidence Act (the Act) is concerned with tendency and coincidence evidence.

65. "Tendency evidence" is defined in the Dictionary to the Act as:

"[E]vidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection."

66. "Coincidence evidence" is defined in the Dictionary as:

"[E]vidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection."

67. Section 97 of the Act provides:

"The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency … to act in a particular way, or to have a particular state of mind, unless …"

68. Section 98 (relevantly) provides:

"The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless …"

69. Section 95 provides:

"Use of evidence for other purposes

(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose."

70. The Crown did not "seek to have adduced" any evidence for a tendency or coincidence purpose. So, according to the Dictionary definitions, there was no tendency or coincidence evidence in the trial. The applicant's case is correctly characterised as a contention that there was a breach of the s 95 prohibition on the use of otherwise admissible evidence for tendency and coincidence purposes: El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [42] (Leeming JA).

71. The particulars of the grounds of appeal contend for a miscarriage of justice on account of (a) the Crown having relied upon tendency or coincidence reasoning; (b) the trial judge having failed to warn the jury against such reasoning; and (c) a non-compliance with the notice and other requirements for admissibility of tendency and coincidence evidence in Pt 3.6.

72. In reality, there are two issues:

1. Did the Crown rely upon tendency and/or coincidence reasoning in proof of its case?

2. Could the jury have engaged in impermissible tendency and/or coincidence reasoning in returning verdicts of guilty?

Tendency reasoning

73. The inability of counsel to articulate the form of tendency reasoning that might have been deployed is indicative of such reasoning not being in play. Counsel's best attempt was to the effect that there might have been reasoning that the evidence established a tendency to remove cocaine from bags imported from Chile, which supported an inference that the applicant was involved in importing cocaine. The logical difficulty with this is that the premise is tantamount to the conclusion. The practical difficulty is the absence of any articulation of how this was conveyed by the Crown or might have been engaged in by the jury.

74. As indicated earlier, it is unsurprising that less emphasis was given to the assertion of impermissible tendency reasoning as the applicant's case was developed.

75. I am not persuaded that there is any merit in this aspect of the ground. There was nothing in the way the Crown presented its case, or the judge summarised the Crown case, that suggested that the jury should or could engage in any mode of reasoning analogous to that described in s 97(1) of the Act. In fact, the trial judge warned the jury against such reasoning:

"The Crown asks you to take into account all the circumstances it relies on in relation to all three counts, in respect of each of them, and you can do that. You cannot take the evidence into account in the sense of thinking, if you find one or more of the offences proved, that, if the accused committed that offence, well, then he must have committed the other offence or offences. You cannot think, 'If he committed that offence, he must be the kind of person who commits offences or commits offences involving drugs, and so he must have committed the other offences'. You cannot reason in that way."

Coincidence reasoning

76. The coincidence rule in s 98 is concerned with two or more events that are relied upon:

"to prove that a person did a particular act or had a particular state of mind on the basis that … it is improbable that the events occurred coincidentally."

77. A major focus of the applicant's submissions was upon the use by the Crown Prosecutor in closing address to the jury of the terms, "consistency of approach" and "modus operandi". Clearly, these were references to the table of circumstances (Exh A Tab 14) which set out events relating to each of the 10 instances relevant to Count 1, and the further instances in relation to Counts 2 and 3. Many of the events were similar and that is certainly what the Crown relied upon.

78. However, the Crown did not rely upon such similarities to establish anything by way of improbability of coincidence reasoning. After taking the jury through all of the circumstances that the Crown relied upon, the prosecutor submitted:

"The Crown's case is if you look at all that globally and when you look at the above facts, the clear and only picture that emerges is that the accused is an active member of a syndicate with the role where he's been importing cocaine into Australia and he's guilty of all three offences in the indictment."

79. That was a relevant matter for the Crown to prove in relation to whether the applicant was involved in importation of a substance, his intention in that respect, and the quantity of the substance involved where there was no direct proof (i.e. Count 3). It was particularly pertinent to prove in relation to Count 3 on the element of "import" because of the interception of the cocaine before it crossed the border. As a consequence, for that count the Crown was able to make out the "import" element if it could establish that there was a "dealing with the substance in connection with its importation", part of the inclusive definition of "import" in s 300.2 of the Criminal Code. The Crown sought to establish this by the inference that there must have been communication prior to the arrival of the cocaine on 13 April 2014 between the applicant and the people sending the drugs from South America "so that they knew what date to send the drugs so that he could be available to collect them".

80. It was not the case, as the applicant contended, that the Crown sought to establish (or was able to establish) guilt in respect of one of the offences and then invited reasoning that the applicant must also have been guilty of one or both of the other offences. It was not possible, for example, for the Crown to establish the import element in relation to Count 3 without reliance upon the overall circumstances as indicated above. Count 2 would have provided a curious set of circumstances, undoubtedly suspicious, if viewed in isolation but fell well short of proof beyond reasonable doubt without regard to all else. The various events upon which Count 1 was based were suspicious of some nefarious activity being regularly engaged in but the true meaning to be ascribed to it was unascertainable without regard to the events with which Counts 2 and 3 were concerned.

81. In short, each of the offences required an examination of the totality of the circumstances rather than there being available a sequential process of reasoning from one particular count to another. In any event and as has been previously noted, the judge specifically warned the jury that if they found one of the offences proved they could not reason that all of the offences had been committed, whether by way of propensity or generally.

82. Far from there having been a miscarriage of justice, the applicant's trial involved the presentation of a powerful circumstantial prosecution case. A retrospective attempt by the applicant to classify it in a technical and artificial way to which all involved at trial were apparently oblivious must be rejected.

83. I propose the following orders in respect of conviction:

1. Leave to allow Ground 1(a), (b) and (c) refused pursuant to r 4 of the Criminal Appeal Rules.

2. Application for leave to appeal against conviction dismissed.

   84. As for sentence, I agree for the reasons given by Wright J, and the additional reasons of N Adams J, that the application for leave to appeal should be granted but that the appeal be dismissed.

   85. WRIGHT J: In relation to the applicant’s appeal against conviction, I agree with the orders proposed by R A Hulme J for the reasons that his Honour has given.

   86. In addition to his appeal against conviction, the applicant sought leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentences imposed by Sweeney DCJ in the District Court at Sydney on 15 December 2017.

Sentences imposed by the District Court

87. The applicant was found guilty by a jury of three counts of importing a commercial quantity of cocaine (counts 1, 2 and 3) and he pleaded guilty to five counts of dealing with the proceeds of crime (counts 4, 5, 6, 7 and 8). Sentences were imposed as follows:

Offence	Maximum penalty	Sentence	Relevant quantities and $ amounts
1	Import commercial quantity (2 kg) of cocaine contrary to s 307.1(1) of the Criminal Code	Life and/or 7,500 pu	27 yrs from 23 Sep 2020	50.7 kg
2	Import commercial quantity (2 kg) of cocaine contrary to s 307.1(1) of the Criminal Code	Life and/or 7,500 pu	20 yrs from 23 Sep 2014	15 kg
3	Import commercial quantity (2 kg) of cocaine contrary to s 307.1(1) of the Criminal Code	Life and/or 7,500 pu	26 yrs from 23 Sep 2017	60 kg
4	Deal with proceeds of crime ≥ $1 million contrary to s 400.3(1) of the Criminal Code	25 yrs and/or 1,500 pu	Notional starting point: 14 yrs 6 ms 13 yrs (after 10% discount) from 23 Sep 2014	$5.37 million
5	Deal with proceeds of crime ≥ $100,000 contrary to s 400.4(1) of the Criminal Code	20 yrs and/or 1,200 pu	Notional starting point: 7 yrs 10 ms 7 yrs (after 10% discount) from 23 Sep 2014	$187,000
6	Deal with proceeds of crime ≥ $100,000 contrary to s 400.4(1) of the Criminal Code	20 years and/or 1,200 pu	Notional starting point: 8 yrs 11 ms 8 yrs (after 10% discount) from 23 Sep 2014	$312,450
7	Deal with proceeds of crime ≥ $50,000 contrary to s 400.5(1) of the Criminal Code	15 years and/or 900 penalty units	Notional starting point: 5 yrs 7 ms 5 yrs (after 10% discount) from 23 Sep 2014	$50,000
8	Deal with proceeds of crime ≥ $10,000 contrary to s 400.5(1) of the Criminal Code	10 years and/or 600 penalty units	Notional starting point: 4 yrs 6 ms 4 yrs (after 10% discount) from 23 Sep 2014	$35,800

Manifest excess ground of appeal

88. The sole ground of appeal sought to be relied on by the applicant was that “the sentence was manifestly excessive”.

Remarks on sentence

89. There was no challenge to any of the findings made by Sweeney DCJ when sentencing the applicant on 15 December 2017. Her Honour’s findings included the material set out in the paragraphs which follow.

Circumstances of the offending and objective seriousness

90. At the relevant times, the applicant was employed at Sydney International Airport as a baggage carousel technician. In that capacity, he had access to secure areas of the airport, including where baggage was delivered from international flights, and he was able to remove items from the baggage area and take them outside the airport without going through Customs control.

91. In relation to each of the importation offences, the cocaine came into Australia on a flight from Santiago, Chile, in oversized baggage. Items of oversized baggage were delivered to an oversized baggage carousel in a basement area of the airport from where those items were ordinarily delivered via another carousel to the public collection area. The applicant’s role was to:

1. remove the oversized bags containing cocaine from the oversized baggage carousel in the basement before the luggage was moved up to the public area;

2. remove the cocaine from the oversized bags in the basement area;

3. leave the airport, without being required to go through any Customs control; and

4. deliver the cocaine to persons unknown outside the airport.

92. In each case, the applicant was in touch with persons in order to coordinate the sending and the arrival of the cocaine with times when he would be at the airport to collect it. In addition, he was in touch with someone who had to manipulate the baggage tag system in Santiago and arrange for the bags containing cocaine to be loaded onto the flights. The manipulation of the airline baggage system involved some sophistication.

93. Because he arranged to collect the cocaine and because he physically handled it when he retrieved it from the oversized bags and delivered it to a person or persons outside the airport, the applicant was aware of the approximate weight of the cocaine he was involved in importing.

94. As to the specific conduct which was the subject of count 1, on four occasions between 1 January 2013 and 10 February 2014, the applicant imported cocaine totalling in the order of 60 kg in the way outlined above.

95. Count 2 concerned one importation on 25 February 2014 of approximately 15 kg of cocaine in a black Prolimit sports bag.

96. Count 3 involved one importation on 13 April 2014. On that occasion, however, Customs officers retrieved from the plane which had arrived from Chile two oversized kiteboard bags which contained blocks of cocaine. The weight of pure cocaine was 50.7 kg. The drugs were seized by the Australian Federal Police before the applicant obtained possession of them. The applicant was seen to sit by the oversized baggage carousel waiting for the bags which had been intercepted by Customs and police and which, as a result, did not arrive on the carousel.

97. In summary, the offences of importing a border controlled drug involved a total of approximately 125 kg of cocaine imported on six occasions over a period of about one year.

98. Although the applicant could not be placed in any notional hierarchy because so little was known about the hierarchy, his role was essential to the enterprise because he brought to it the access he had to the secure area of the airport where oversized baggage was delivered from the flights on which the cocaine was carried. His access was critical to the importation plan. In carrying out his role in the importation, the applicant abused the trust placed in him by his employer and his responsibility and criminality were of a high order. He was rewarded handsomely for carrying out his role as is demonstrated by the fact that he accumulated funds in the order of $6 million as a result of his involvement.

99. In these circumstances, Sweeney DCJ described the applicant’s role in the importation of the cocaine as being “essential and high ranking” and her Honour found that the importation offences were “very serious”.

92. As to the offences of dealing with the proceeds of crime, which were the subject of counts 4, 5, 6, 7 and 8, the learned sentencing judge found that the money, approximately $6 million in total, was the proceeds of the applicant’s involvement in importing cocaine so that he not only knew the illegal source for the money but was involved in the illegal conduct from which it was derived. He was the owner of the money and the beneficiary of the laundering activities, which entailed his involving other people in the offending. The overall operation of laundering the money was to the benefit of the applicant as he had it available to spend on building a new home, travel and jewellery.

93. More specifically, count 4 related to the applicant’s possession of $5.37 million in cash, found in his home. Her Honour found that, the amount involved being well over the threshold of $1 million in s 400.3(1) of the Criminal Code, this offence was “a serious offence of its kind”.

94. As to the offence which was the subject of count 5, the money involved was only a little over the $100,000 threshold for this offence, but the applicant did involve another person in a number of transactions. It was held that this was an offence “of low to moderate seriousness”.

95. The monetary amount in the offence in count 6 was well over the $100,000 threshold for the offence and it involved the applicant’s partner whom he had recruited to deposit cash in 60 transactions in amounts under $10,000. It was found to be a “moderately serious offence of its kind”.

96. Count 7 was found to involve an amount of money on the threshold of $50,000 for the offence and involve only one transaction. On this basis, it was considered to be “an offence of low seriousness of its kind”.

97. As to the offence in count 8, her Honour noted that the amount involved was midway between the $10,000 threshold for this offence and the $50,000 threshold for the next offence and it involved a number of transactions. Thus, it was held to be a “moderate offence of its kind”.

Pleas of guilty

106. Her Honour took into account that the applicant pleaded guilty to the dealing with the proceeds of crime charges at the beginning of his trial but did not accept his account of obtaining the money from another person and holding it on that person’s behalf. On that basis, it was not accepted that the pleas involved contrition or remorse or an acceptance of responsibility for the offences. Nonetheless, a discount of 10% was allowed because the pleas saved some time in the conduct of the trial and to that extent demonstrated some willingness to facilitate the course of justice. It was not contended that there was any error in relation to the discount for the pleas of guilty.

Subjective circumstances

107. Sweeney DCJ noted that that the applicant was 40 years old at the time of sentencing and that he did not give evidence on sentence. Her Honour took into account that the applicant suffered a traumatic childhood in which he suffered abuse and violence from his stepfather because he was not the stepfather’s biological son. It was accepted that in 2001 the applicant was involved in a serious motor vehicle accident which resulted in injuries to his leg and brain injuries which kept him in a brain trauma unit for two months. In about 2011, the applicant commenced a relationship with his partner, who was involved in some of the money laundering activities. His mother said that she supported her son and that he was a good father to his children and enjoyed his job.

108. The sentencing judge noted that the applicant had no prior criminal record and, while in custody, he had been working as a sweeper, which is a position of trust. Her Honour also took into account a reference from Ms Ellery, the mother of a man who was in the brain injury unit at the same time as the applicant in 2001. That reference attested to the applicant’s ongoing kindness to her son and herself over a number of years.

109. Overall, it was accepted that the applicant had some positive personal qualities which enabled him to overcome the difficulties of his childhood and become a hard-working man and good father and, as a result, it was likely he would have reasonable prospects of rehabilitating himself when he was released “from what will have to be a substantial sentence to reflect the seriousness of his offences and the purposes of sentencing including general deterrence”.

Maximum penalty consideration

110. The learned sentencing judge also gave explicit consideration to whether the offending in the present case was so grave as to warrant the imposition of the maximum penalty of life imprisonment. Her Honour noted the comment from Spigelman CJ in R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531, at [3] (Carruthers AJ agreeing at [179]):

“I would myself reserve the term of life imprisonment as “the norm” for persons at the top of the importation hierarchy, rather than those who “provide important assistance”. Nevertheless, I agree that an appropriate starting point, in all of the circumstances of the present case, is a head sentence of 27 years after a s16G adjustment.”

111. Her Honour went on to note that such an approach has not always been followed, as illustrated by some of the cases relied upon by the Crown, which were set out in an attachment to the Crown’s written submissions before her Honour. These included Law v R [2006] NSWCCA 100 and Keung, Bow, Liu v R [2008] NSWCCA 193; 191 A Crim R 317.

112. The sentencing judge’s reasons for imposing the sentences which she did in relation to the importation offences then included the following concerning the applicant’s role:

“the difficulty in this case is that nothing is known about the importation hierarchy and [the applicant’s] position in it, particularly where he was relevant to the person or persons who sent the cocaine and the person or persons to whom he delivered the cocaine. However, as I have said, his role was important, indeed critical, using his access to the secure area of the airport to collect the cocaine and deliver it, bypassing Customs controls, and the financial reward he received for his involvement indicates how important his role was. However I do not consider that this offending warrants the maximum penalty.”

Accumulation and concurrence

113. As to accumulation and concurrence, the remarks on sentence contained the following:

“There is a dispute between the Crown and [the applicant] as to whether the sentences for the money laundering offences should be partly accumulated on the sentences of the importation offences. On behalf of [the applicant] , Mr Korn submitted that there should be no accumulation of sentences for the money laundering offences, as the money is taken into account as an indicator of the seriousness of his drug offences and that to do so would involve double counting.

The Crown submitted that there was additional criminality in the conduct the subject of counts 5 and 6, by involving other people to launder money by depositing it in small sums into bank accounts. Mr Korn submitted that spending the money or putting it somewhere so that it was available to spend it did not involve additional criminality. Accumulating and possessing the money is clearly very closely associated with the importation offending but laundering it using other people does in my view involve some additional criminality to disguise the source of the money as proceeds of crime. Relative to the overall criminality of the offences relating to the money, the further criminality, although it involved multiple transactions adds to the overall criminality by only a small degree, on the basis of which I have decided to not accumulate the sentences for those offences in counts 5 and 6.”

114. Notwithstanding these comments, the sentencing judge effectively accepted the submissions of the applicant’s legal representative since the sentences imposed in respect of counts 4, 5, 6, 7 and 8 were entirely concurrent, each commencing on 23 September 2014. It was not a ground of appeal that this involved any error by the sentencing judge and, even if there were error, it would have been an error in the applicant’s favour.

115. In a later passage in the remarks on sentence, accumulation was again referred to as follows:

“The three importation offences occurred in a course of conduct over about a year in which commercial quantities were imported on at least six occasions by a similar methodology. But the criminality of each of the offences could not be comprehended in an appropriate sentence for any one of the offences because the time over which the offences occurred and the significant quantities contained in each. So there will be some accumulation of sentences.”

116. As has already been noted, there was no accumulation in relation to the dealing with the proceeds of crime offences and the importation offences. The sentences for counts 4, 5, 6, 7 and 8 were entirely concurrent with the 20 year sentence for count 2, since all of those sentences commenced on 23 September 2014. Further, there was only a limited degree of accumulation of the 3 importation offences in that:

1. the 20 year sentence for count 2 commenced on 23 September 2014;

2. the 26 year sentence for count 3 commenced 3 years later on 23 September 2017; and

3. the 27 year sentence for count 1 commenced on 23 September 2020, 3 years after the commencement of the sentence for count 3.

117. Thus, the entire 26 year sentence for count 3 was subsumed in the sentences for counts 1 and 2. Furthermore, 14 years of the 20 year sentence for count 2 were concurrent with the sentence for count 1.

Were the sentences manifestly excessive?

118. Although the ground of appeal referred to “the sentence”, the application for leave to appeal should be understood as seeking to appeal against each sentence and the non-parole period of 22 years. As I understood it, this was in substance the way in which the applicant and respondent approached the matter.

119. There was no dispute as to the principles to be applied when considering whether sentences are manifestly excessive. They were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J, with whom Bathurst CJ, Leeming JA, Hamill J and Adams JJ agreed) as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

120. This statement of the principles has recently been endorsed in Barrett v R [2020] NSWCCA 11 at [109] and Hughes v R [2018] NSWCCA 2 at [86].

121. The substance of the applicant’s submissions was that the total overall sentence of 33 years’ imprisonment with a 22 year non-parole period was plainly unjust, in the circumstances of his case and having regard to comparable cases. Consequently, the individual sentences actually imposed, with the degree of accumulation adopted, must be similarly unjust and should be quashed.

122. The circumstances to which the applicant drew particular attention were that: (a) the applicant had no prior criminal record; (b) although vital to the importation of the border controlled drugs, the applicant’s role was a visible one involving a high degree of risk; (c) the applicant had a deprived background; and, (d) the applicant had reasonable prospects of rehabilitating himself on release.

123. It can be noted that each of circumstances (a), (c) and (d) was expressly taken into account by the learned sentencing judge, as appears from her remarks on sentence, which have been summarised above. There is nothing to suggest that there was any error of principle or of fact made by her Honour when she did so. Moreover, those circumstances were only some of the relevant considerations that she was required to, and did, take into account in determining the appropriate sentences.

124. As to circumstance (b), the applicant relied on the visibility of his role and the risk involved to contend, in effect, that his role should be assessed as being at a low level in the hierarchy. It does not necessarily follow, however, that a role in drug supply that is “visible” with a significant risk of detection must be at a lower level in the drug hierarchy and must call for a lesser sentence. The observation that those lower down in a drug hierarchy are often the most active and the most visible is, as McCallum J (as her Honour then was) commented in Tu v R [2011] NSWCCA 31 at [134], only a “concession, sometimes appropriately made in favour of an offender that a greater and more detectable level of activity does not necessarily indicate higher status in the operation”. In the present case, it was not submitted during the proceedings on sentence that the applicant’s role was a visible one involving a high degree of risk and, as a result, his role in the drug hierarchy was low. In these circumstances, it is understandable that the sentencing judge did not make such a finding. In any event, the applicant’s role was considered in some detail by her Honour and her unchallenged findings were that “his role was important, indeed critical” in that he used his access to the secure area of the airport to collect substantial quantities of cocaine and deliver it, bypassing Customs controls. In addition, the very significant financial reward, in the order of $6 million, which he received for his involvement was found to be indicative of the importance of the applicant’s role.

125. In my view, in the circumstances of the present case, her Honour was correct to judge the significance and level of the applicant’s participation in the importation offences by reference to:

1. the fact that the applicant’s role was critical to the successful importation of very significant quantities of cocaine over a one year period; and

2. the very substantial financial reward which the applicant obtained for carrying out his role,

and to conclude that his role was “essential and high ranking”.

126. None of the circumstances (a), (b), (c) or (d) on which the applicant relied in submissions established, whether alone or taken in combination, that the sentences imposed on the applicant were plainly unjust or indicative of error.

127. In further support of the contention that the sentences were plainly unjust, the applicant relied upon a table of what were said to be comparable cases, about which it was submitted:

“[a]lthough these are for single offences, they provide some guidance because the starting points for the applicant individually were generally significantly higher than the cases”.

128. Although 19 such cases dating from 2008 to 2019 were included in the table, Mr Edwards of counsel, who appeared for the applicant, dealt with only three of them in any detail during oral submissions: Jaafar v R [2017] NSWCCA 223; Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270; and, Heng v R [2019] NSWCCA 317.

129. It can also be noted, at this point, that the applicant’s submissions focused entirely upon drug importation cases and did not refer to any comparable cases concerning dealing with the proceeds of crime. This is perhaps understandable in light of the fact that the sentences for the five proceeds of crime offences were entirely subsumed in the sentences for the importation offences. Nonetheless, the five proceeds of crime offences cannot be ignored when considering whether the total effective sentence, the non-parole period and the individual sentences were plainly unjust or unreasonable.

130. At the sentence hearing, the Crown had relied on a table of six drug importation cases dating from 2006 to 2015. Before this Court in oral submissions, the Crown relied upon the observations in Nguyen at [89] to [95].

131. Before considering the comparable cases specifically relied upon in submissions, I pause to note the proper use of past sentences in comparable cases. The important principle of consistency in sentencing warrants reference to sentences which have been imposed in such cases: Moodie v R [2020] NSWCCA 160 at [81].

132. As was explained in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54], a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. The true usefulness of considering sentences imposed in other cases was identified in Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64 at [59]. There the High Court said that recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal.

133. In relation to drug importation and related offending, unifying sentencing principles which can be discerned from past cases have been most helpfully identified in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 (Nguyen). These principles were endorsed and applied by this Court recently in R v Kassir [2020] NSWCCA 88 at [99] and Zaugg v R [2020] NSWCCA 53 at [56].

134. In Nguyen, Johnson J (with Macfarlan JA and R A Hulme J agreeing) identified the unifying principles, at [72], as follows:

“[72] The following general propositions emerge from the authorities:

(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee [[2007] NSWCCA 234] at [27];

(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [(1999) 199 CLR 270 at 279; [1999] HCA 54 at [19]]; R v Lee at [25];

(c) it is the criminality involved in the importation which must be identified – the fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];

(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen [(2001) 207 CLR 584; [2001] HCA 64] at 607-608 [64]; R v Lee at [23]-[24];

(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];

(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];

(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64];

(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];

(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];

(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49].”

135. It was not submitted by the applicant that these principles were no longer applicable. Nor was it submitted that the learned sentencing judge had failed to apply or misapplied these principles in the present case.

136. Turning to the particular cases relied upon by the applicant, I shall focus on the three decisions dealt with by Mr Edwards in oral submissions.

137. In Jaafar v R [2017] NSWCCA 223 (Jaafar), the offender pleaded guilty in the Local Court to one charge of conspiring to import a commercial quantity of a border controlled drug (123.4 kg of cocaine) contrary to s 307.1(1) of the Criminal Code. He was originally sentenced to imprisonment for 18 years and 6 months with a non-parole period of 11 years, after a 25% discount for his early guilty plea. The implied starting point before that discount was a sentence of approximately 24 years and 9 months. (This is generally consistent with the sentencing judge’s comments, quoted in the next paragraph below, as to the appropriate sentence after allowing for subjective matters being about 25 years.)

138. On appeal, it was conceded, and this Court accepted, that the sentencing judge had fallen into error when he adopted a two tier sentencing approach rather than the process of instinctive synthesis, as disclosed in the following passage from the remarks on sentence:

“I think that, had he been convicted after a trial and had he not got the discounts that are properly available to him for subjective matters and for his plea of guilty, the starting point would have been 28 years. I would discount that by 10 per cent for his previous good character and the other subjective matters to which I have referred which brings it down to about 25 years.”

139. On resentencing, Price J (with whom Hoeben CJ at CL and Lonergan J agreed) took into account, among other things, the sentences of Mr Jaafar’s co-offenders in relation to this conspiracy which included (see [77]):

1. 26 years for “Vinci” with a non-parole period of 17 years after a discount of 12.5% for a late plea of guilty to a charge of conspiracy to possess a commercial quantity of a border controlled drug contrary to s 307.5(1) of the Criminal Code. Without the discount, sentence would have been approximately 29 years 9 months;

2. 21 years for “Palomarez” with a non-parole period of 12 years 6 months after a discount of 12.5% for a late plea of guilty to a charge of conspiracy to import a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code. Without the discount, the sentence would have been 24 years;

3. 20 years for “Rodriguez” with a non-parole period of 12 years after being found guilty after trial on a charge of conspiracy to import a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code; and

4. 15 years for “Aldo” with a non-parole period 8 years after being found guilty after trial on a charge of conspiracy to import a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code.

140. In particular, Price J took into account the requirement for parity having regard in particular to the sentence imposed on, and the circumstances of, Rodriguez. His Honour also bore in mind Mr Jaafar’s subjective circumstances (which were not contended to be strikingly similar to those of the applicant in the present case), and accepted that a 25% discount for the guilty plea was appropriate. In determining the appropriate sentence, his Honour said at [113] – [118]:

“113 It must not be overlooked that the applicant played a major part in the importation into Australia of 123.4 kilograms of pure cocaine. This was a highly sophisticated international operation. The cocaine was dissolved in an aqueous ethanol solution which was secreted in 42 dozen wine bottles that were part of about 900 cases of Argentinian wine shipped from Chile.

114 The difficulty in detecting such an importation cannot be underestimated and the grave consequences to Australian society that would follow from the imported cocaine being supplied in this country do not need to be detailed. The potential financial rewards from such a large importation were immense. This is a very serious offence.

115 In sentencing the applicant, chief weight is to be given to general deterrence: R v Nguyen; R v Pham at [72]; Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at [64]. But for the justifiable sense of grievance arising from the sentence imposed upon Rodriguez, I would have no hesitation in concluding that a lesser sentence is not warranted.

116 The question remains whether the applicant’s sentence should be reduced on account of the marked disparity. This Court is not obliged to reduce the sentence to a level that would be regarded as erroneously lenient: Green at [33].

117 Given the objective gravity of the applicant’s offending and the guidepost of the maximum sentence of life imprisonment, the scope for reduction in the applicant’s sentence is limited. I propose that the term of the sentence be reduced by one year.

118 In my respectful opinion, the non-parole period imposed by the judge was particularly generous and any reduction would amount to “an affront to the proper administration of justice”: Green at [33].”

141. On resentence, this Court imposed a sentence of 17 years and 6 months with a non-parole period of 11 years on Mr Jaafar. Before the discount for the guilty plea, this was equivalent to a sentence of approximately 23 years 4 months.

142. Jaafar concerned one conspiracy to import 123.4 kg of cocaine into Australia. There were numerous participants operating at different levels of seniority in the hierarchy of the conspiracy. It is not possible, in my view, to reach a properly informed conclusion that Mr Jaafar, as opposed to Vinci, Palomarez or Rodriguez, should be considered as equivalent, in some relevant sense, to the applicant in the present case so as to provide a useful point of comparison. Furthermore, while the amount of cocaine involved in that case was similar to the total amount of cocaine involved in the present case (125.7 kg), in the applicant’s case there were 6 occasions, encompassed in three counts, when cocaine was imported over a period of approximately one year. In addition and unlike the situation in Jaafar, the applicant was also sentenced in relation to five counts of dealing with the proceeds of crime.

143. Fairly read as a whole and having regard to the particular circumstances specifically identified in the applicant’s table of cases, I do not think that the decision in Jaafar provides any substantial support for the conclusion that the particular sentences imposed on the applicant in the present case were plainly unjust. The Jaafar decision at [115] does, however, emphasise the high need for general deterrence in cases involving the importation and supply of prohibited drugs: Murray v R [2017] NSWCCA 262 at [74]. In this regard, it is consistent with the principles in Nguyen at [72(h) and (i)].

144. Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270 concerned applications for leave to appeal against sentence by three persons, Mr Kuo, Mr Shih, and Mr Huang. They had each pleaded guilty to the same charge that, on a date in 2014, they attempted to commit an offence against subs 307.5(1) of the Criminal Code in that they attempted to possess an unlawfully imported substance, being the border controlled drug, methamphetamine. The amount of the pure drug involved was 142 kg which was more than 180 times the commercial quantity for this drug, which is 0.75 kg. The drugs had been imported by a Ms Lin. In the District Court, Mr Shih was sentenced to 27 years imprisonment with a non-parole period of 18 years and Messrs Kuo and Huang were each sentenced to 22 years with non-parole periods of 14 years 6 months.

145. The three applicants sought to rely on various grounds of appeal including, in each case, that the sentencing judge had erred in not taking into account the utilitarian value of the plea of guilty. In each case, it was accepted by the Crown that error had been established because, contrary to the decision in Xiao v R [2018] NSWCCA 4, the utilitarian value of their pleas had not been taken into account. Accordingly, it was necessary to resentence the offenders.

146. In relation to Mr Kuo, it was held, at [90], that his late plea entitled him to a “modest” discount of “about 10 to 15%”. It was noted that he “was not a principal, albeit an important member of the drug importation syndicate” and that there had been no previous offending by him. The Court went on to identify a particular danger in a matter of this kind at [97] as being:

“that the sentencing judge, to some extent, can be overwhelmed by the sheer quantity of the drug sought to be imported”.

147. It can be noted that this particular danger is to be approached having regard to the principles from Nguyen at [72], set out above, and in particular pars (d) and (e).

148. The sentence imposed on Mr Kuo was 19 years with a non-parole period of 12 years. Thus, the sentence before the discount of between 10% and 15% for the guilty plea would have been between approximately 21 years 2 months and 22 years 5 months.

149. In relation to resentencing Mr Huang, it was found that he had no prior convictions, that he was at a similar position in the hierarchy as Mr Kuo and that “[i]n other matters, their position was fairly similar”. In resentencing Mr Huang, the Court reached a different conclusion from that of the sentencing judge as to who was at the apex and who was at the bottom of the hierarchy. This led to a reconsideration of the parity between the sentences of Ms Lin and Mr Huang, at [110] – [111]. In light of this reconsideration and of the matters taken into account concerning Mr Kuo, the Court imposed the same sentence on Mr Huang as it had imposed on Mr Kuo.

150. The circumstances of Mr Shih were different. In his case, the Court gave much more detailed consideration to his level of involvement compared to that of Ms Lin and the others. The Court did not adopt the sentencing judge’s finding that Mr Shih was at the apex of the syndicate in Australia. The Court went on to say, at [118] and at [123]:

“118 This case provides a good example of why a sentencing court (including an appellate court called upon to re-sentence) is better to focus on what a drug offender actually did than to attempt to make findings as to their relative roles in a hierarchy or the precise position within a hierarchy. Because drug syndicates do not operate transparently, the “rank” of a drug offender within the criminal organisation may be more a matter of speculation than a process of rational drawing of inferences. …”.

…

123 … Even so, making assessments of where criminals operate in a hierarchy of a drug syndicate is a very difficult matter either for a sentencing judge or for an appellate court. Such criminal syndicates are by their nature secretive and where people stand in such a hierarchy is necessarily opaque. It seems to us that Shih was operating at a relatively similar level to Lin, although in a superior position to Kuo and Huang. As to the latter matter, he honestly conceded as much in his evidence.”

151. At [131], the Court concluded that, taking into account their assessment of Mr Shih’s role in the importation, the magnitude of the importation, his particular personal circumstances including the likely hardship in custody, his absence of any serious criminal history, and his prospects for rehabilitation upon deportation at the end of a very long sentence, they should impose a sentence of 22 years with a non-parole period of 14 years. This would equate to a sentence of between 24 years 5 months and 25 years and 11 months prior to the 10% to 15% discount for his plea of guilty.

152. Similarly to Jaafar and unlike the present case, Kuo involved offenders being sentenced in respect of only one offence of importation of drugs and did not involve any sentences for other importation or proceeds of crime offences.

153. It can be noted that in relation to Ms Lin, she had been found guilty after trial on 3 counts and had been sentenced to an effective overall sentence of 23 years with a non-parole period of 15 years. This, however, was on the basis that, as found by the sentencing judge, she was at the bottom of the hierarchy, not the apex (see [73] and [110]). The sentences imposed on Mr Kuo, Mr Huang and Mr Shih on resentencing were based on a factual foundation which was different from the basis upon which Ms Lin was sentenced. They were sentenced on the basis that Ms Lin was at the top of the hierarchy in Australia (see [112] and [117]).

154. Once again and even having regard to the particular circumstances of each of the offenders referred to in Kuo as set out in the applicant’s table of cases, it does not appear to me that the decision in Kuo demonstrates, or even suggests in any clear way, that the sentences imposed on the applicant in the present case were plainly unjust. The confusing situation concerning the changing assessments of the offenders’ relative levels in the hierarchy renders this decision even less helpful than might otherwise have been the case.

155. In Heng v R [2019] NSWCCA 317, Mr Heng was originally sentenced in the District Court for an offence, to which he had pleaded guilty, of importing a commercial quantity, 73.8 kg, of a border controlled drug, methylamphetamine, contrary to s 307.1(1) of the Criminal Code, with an additional offence, aiding and abetting the manufacture of a commercial quantity of a border controlled drug contrary to ss 11.2(1) and 305.3(1) of the Code taken into account. The sentence imposed on Mr Heng was 23 years and 9 months imprisonment with a non-parole period of 15 years and 9 months. Mr Heng sought leave to appeal against his sentence.

156. Although Mr Heng had pleaded guilty, the sentencing judge did not indicate the quantum of any discount that he had applied in that regard. In this Court, Macfarlan JA said at [31] in relation to this aspect of the appeal:

“His Honour said that the applicant’s plea of guilty had been late and although the applicant sought a significant discount for his assistance to authorities, the assistance that he gave was limited. His Honour did not quantify the discount that he allowed for these matters but by inference it would not seem to have been more than about 10%.”

157. It was not entirely clear why it was inferred that the total discount for the guilty plea and assistance was 10% rather than some other percentage.

158. Mr Heng sought to rely on two grounds of appeal: one, that the sentencing judge had erred in assessing objective seriousness; and, the other, that the sentence was manifestly excessive. Although leave to appeal was granted the appeal was dismissed. As to the first ground, it was held that the sentencing judge had made no error in assessing the offending as at the “higher end of the objective seriousness” and the sentence was consistent with that finding. It was also held that the manifest excess ground was not made out.

159. The specific factors identified by the applicant in relation to the role of Mr Heng in the table of cases were “Significant and high level directing role. Offending at higher end of objective seriousness. Offence committed for financial reward, 98 times greater than commercial quantity. Knew a very large quantity of drugs was involved, had a directing and crucial role, following orders from Hong Kong”. While some of these factors are similar to the circumstances of the applicant in the present case, there was no finding that the applicant was following orders, either from Chile or from elsewhere.

160. When an assumed 10% discount for a plea of guilty and assistance is taken into account, the sentence imposed on Mr Heng indicates that the starting point was 26 years and 5 months. However, if the discount for the plea and assistance was or should have been 15% or 20%, this would equate to a starting point for Mr Heng’s sentence of approximately 28 years or 29 years 8 months.

161. In all the circumstances, there was nothing about the objective seriousness of Mr Heng’s offending or his subjective circumstances which suggested that the sentences of 27 years, 20 years or 26 years imposed on the applicant in this case were so far outside any applicable range as to be plainly unjust or unreasonable.

162. Indeed, I do not accept that any of the three cases relied upon by the applicant in oral submissions indicates that the applicant’s sentences individually were, in all the circumstances, to be seen as “significantly higher” than in those cases.

163. The Crown referred in oral submissions to the comments concerning the decision in R v Lee [2007] NSWCCA 234 in Nguyen at [89] to [95]. In addition, it was submitted that the sentencing judge found that the importation offences were “particularly serious”. Having regard to: the weight of the drugs involved; the substantial and critical role of the applicant; and, the considerable financial reward he received, the Crown submitted that the criminality and nature of the offending was such that general deterrence was an important aspect of the sentencing process and some matters such as prior good character were of lesser significance. In all the circumstances, it was contended that the individual sentences and the total effective sentence and non-parole period were not unreasonable or plainly unjust.

164. As the applicant’s written submissions properly accepted, the three cases relied upon in oral submissions and the other cases referred to in the applicant’s table of cases provided examples of sentences for “single offences”. The applicant’s case involved multiple offences. The individual sentences for those multiple offences were not, in my view, so outside any applicable range that those sentences were plainly unjust, unreasonable or bespoke error, even having regard to the comparable cases relied on by the applicant.

165. The appropriate degree of accumulation and concurrence was considered by the learned sentencing judge and her conclusions were explained. It was not submitted that any specific error had been made in that regard. Taking into account the way in which the sentences for the proceeds of crime offences were made concurrent with the sentences for the importation offences and the distinct criminality of each of the importation offences, it appears to me her Honour’s limited accumulation of sentences for the importation offences was well open in the proper exercise of her discretion.

157. The total effective sentence of 33 years and the non-parole period of 22 years do not, in my view, indicate that some error must have been made, when all of the relevant circumstances are taken into account. The overall sentence is perhaps towards the top end of the range but:

1. the three importation offences, which attract a maximum penalty of life imprisonment, extended over six occasions and were very serious;

2. the applicant’s role in the importation was “essential and high ranking” and involved an abuse of the trust placed in him;

3. the total amount of drugs involved exceeded 100 kg by a significant amount;

4. the applicant’s monetary reward was well in excess of $5 million;

5. the five proceeds of crime offences ranged from serious, to moderately serious to low seriousness, having regard to the amounts involved and the monetary thresholds for the particular offences and the extent to which the applicant involved others in the offending;

6. while there were some positive aspects to the applicant’s subjective circumstances, they do not justify a substantial reduction in any of the sentences, having regard to the principles in Nguyen at [72]; and

7. the degree of accumulation was modest in the circumstances, when all of the offending was considered.

167. For all of these reasons, I am unable to conclude that the applicant has established that the sentences imposed or the non-parole period were plainly unjust or unreasonable.

168. While I would reject the only ground of appeal relied upon by the applicant, leave to appeal should be granted, since the ground was arguable.

Proposed orders

169. Accordingly, the orders I propose in relation to the application for leave to appeal against sentence are:

(1)   The applicant has leave to appeal.

(2)   The appeal is dismissed.

170. N ADAMS J: I have the advantage of reading the judgment of R A Hulme J in draft. I agree with the orders proposed by his Honour for the reasons provided. I have also had the advantage of reading the judgment of Wright J in draft. I agree with the orders proposed by his Honour for the reasons provided. The sentence imposed was a stern one but the criminality was significant. The applicant abused his position as a baggage handler at the Sydney International Airport to allow a significant amount of prohibited drugs to enter the country. He received payment of approximately $6 million for his involvement and showed no remorse for the drug offences. As Johnson J observed in R v Nguyen; R v Pham at [72](h), in the passage extracted by Wright J at [134], it is necessary to “signal” to potential drug traffickers that the financial rewards of such activity are “neutralised” by the risk of severe punishment. I am not satisfied that the sentence imposed on the applicant was unreasonable or plainly unjust.

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Decision last updated: 21 August 2020