R v Bateman

[2000] NSWSC 915

CITATION:	R v Bateman [2000] NSWSC 915
FILE NUMBER(S):	SC 70056/00
HEARING DATE(S):	31/08/00, 04/09/00
JUDGMENT DATE:	18 September 2000
PARTIES :	Regina v Russell Douglas Bateman
JUDGMENT OF:	James J at 1

COUNSEL :	I McClintock - Commonwealth DPP R Baker - Prisoner
SOLICITORS:	J Azize - Commonwealth DPP K J Madden - Walter Madden & Jenkins - Prisoner
CATCHWORDS:	Customs Act - Importation of prohibited imports - sentencing
DECISION:	Sentenced to imprisonment for thirteen years - Non-parole period of eight years. Sentence to commence on 01/02/2000

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Monday 18 September 2000

70056/2000 - R v Russell Douglas Bateman

Remarks on Sentence

1 HIS HONOUR: On 31 August 2000 Russell Douglas Bateman (who I will refer to as “Mr Bateman” or “the prisoner”) pleaded guilty before me to a charge of being knowingly concerned in the importation into Australia of prohibited imports to which s233B of the Customs Act (Commonwealth) applied, being a quantity of cocaine not less than the commercial quantity of cocaine, this being a charge of an offence under s233B(1)(d) of the Customs Act. The prisoner had pleaded guilty in the Local Court to a charge under the same provision of the Customs Act and had been committed for sentence. He was re-indicted before me, because of minor changes made by the Crown to the form of the charge.

2   The evidence in the proceedings on sentence before me included a statement of the facts prepared by Mark Heather, an agent of the Australian Federal Police; transcripts of interviews of the prisoner on 2 February 2000 and 24 August 2000; statements made by the prisoner on 2 and 3 February 2000 and 24 August 2000; the criminal history of the prisoner; two statements as to assistance provided by the prisoner, which were prepared by Mr Heather, and an undertaking by the prisoner to provide future assistance. In addition to this documentary evidence Mr Heather and the prisoner gave oral evidence in the proceedings on sentence.

3   It was stated by counsel for the prisoner that I could accept as being true facts asserted in the statement of facts prepared by Mr Heather, including asserted facts which were preceded by the expression “police allege” or some similar expression.

4   There was little dispute about any of the facts of the offence committed by the prisoner and I am satisfied that the following facts have been established to the requisite standard. My statement of the facts is taken largely from the statement of facts prepared by Mr Heather and from the prisoner’s statements. I have taken into account all of the evidence adduced in the proceedings on sentence, whether or not it appears in my statement of the facts.

5   On 30 October 1993 the prisoner had been sentenced in the District Court, for an offence of knowingly being concerned in the cultivation of cannabis, to a term of imprisonment of five and a half years, with a minimum term of three and a half years.

6   While the prisoner was in custody, either awaiting sentencing or serving the sentence which was imposed, he met two other prisoners Maximiliano Diez and Sir Thomas Fry. It would seem that the “sir” in Fry’s name is not an indication of a knighthood but is a name that was given to him.

7   In June 1994 the prisoner escaped from lawful custody, on an occasion when he had been permitted to leave a correctional centre to attend a sporting function. He remained at liberty until he was arrested on 1 February 2000, for the offence for which I am sentencing him.

8   From 1996 onwards the prisoner was in contact with Diez and Fry. At some time after he escaped, the prisoner went to live in Melbourne.

9   About the middle of 1999 the prisoner and Diez met by arrangement in Sydney

10   It is alleged by the Australian Federal Police that in a conversation at this meeting, as in other, subsequent, conversations, certain words (“code words”) were used, in other than their ordinary meanings, so as to refer to drugs or to aspects of a criminal enterprise to import drugs into Australia. In the proceedings on sentence no objection was made by counsel for the prisoner to what were alleged by the Federal Police to be the true meanings of code words used in these conversations and in summarising this first conversation and subsequent conversations I will adopt the translations of the code words alleged by the Federal Police.

11   In this first conversation Diez asked the prisoner whether he knew anyone who could captain a yacht, so as to bring drugs into Australia. The prisoner replied that both he and Diez knew Fry. Diez asked the prisoner to contact Fry and the prisoner said that he would. The prisoner telephoned Fry, who was then living in New Zealand.

12   A meeting took place between the prisoner, Diez and Fry at Melbourne airport. At this meeting Fry indicated his willingness to sail a yacht carrying cocaine from overseas to Australia. Diez told Fry that he wanted Fry to travel to Panama, so that “the boss” could make an assessment of Fry. Diez said that he also would travel to Panama but that he and Fry should travel separately, so that they would not be seen together. Diez supplied Fry with money for the trip. Both Diez and Fry, but not the prisoner, travelled to Latin America.

13   After Fry had returned to Australia, the prisoner had a meeting with Fry. Fry showed the prisoner a satellite telephone which he said he had bought in Panama, using money given him by Diez. Fry believed that the authorities would be unable to intercept calls made using such a telephone. After this meeting Fry returned to New Zealand.

14   Fry telephoned the prisoner from New Zealand and said that the venture to import cocaine into Australia would be going ahead. Fry said that a boat he had, which was known as the “Lone Bird”, could be used but that he would need money for repairs to the boat.

15   It is clear that what was proposed was that one vessel would bring cocaine from South or Central America to a meeting place somewhere in the Pacific Ocean, that the cocaine would be transferred to another vessel captained by Fry and that the cocaine would be brought to Australia in Fry’s vessel.

16   Diez telephoned the prisoner from Colombia and asked the prisoner to send money to Fry, so that repairs could be made to Fry’s boat. Diez promised to reimburse the prisoner. The prisoner sent money to Fry in New Zealand, to enable repairs to be carried out to Fry’s boat.

17   After Diez had returned from Latin America there was a meeting between Diez and the prisoner. Diez reimbursed the prisoner for the monies the prisoner had sent to Fry in New Zealand.

18   According to the prisoner’s statement of 2 and 3 February 2000, the prisoner said at this meeting that he was unwilling to be involved in the venture to import cocaine into Australia. According to his statement he was told by Diez that the vessel carrying the cocaine had already left South America, that the prisoner could not pull out, that “they” have got “hit men” and that “they” would get the prisoner’s family.

19   In his first statement as to the assistance provided by the prisoner to the authorities, Mr Heather said, with reference to assertions by the prisoner in the prisoner’s statement that he had not wished to go ahead with the importation but had been threatened by Diez, “I have some doubts about the accuracy of this statement due to the contents of intercepted telephone conversations between Bateman and Diez and Bateman’s demeanour when he was observed by police meeting Diez in January 2000”.

20   In his oral evidence in the proceedings on sentence the prisoner gave evidence in cross-examination that Diez had not threatened him and that he had been a willing participant in the venture. In the proceedings on sentence no submission was put to me by counsel for the prisoner that I should find that the prisoner was an unwilling participant in the enterprise to import cocaine and I do not make any such finding.

21   In New Zealand Fry engaged a man named Hamish Thompson to help him with the repairs to Fry’s boat. However, it was decided that, rather than attempt to repair Fry’s boat, another vessel, a yacht, should be purchased. At a meeting with the prisoner Diez gave the prisoner $200,000 for the purchase of a yacht and associated expenses.

22   About this time the prisoner recruited as a member of the criminal organisation a friend of his named McCaffrey. The prisoner did not want to directly transfer to New Zealand the money Diez had given him for the purchase of the yacht and other associated expenses. An arrangement was entered into between McCaffrey and the prisoner, pursuant to which on 8 December 1999 McCaffrey transferred $100,000 into an account of the prisoner’s and the prisoner then transferred $127,000 to Hamish Thompson in New Zealand.

23   On 9 December 1999 Hamish Thompson bought in New Zealand a yacht named the “Ngaire Wha”, which was to be used in the importation of the cocaine. After the purchase of the yacht the prisoner transferred further money to Hamish Thompson.

24   In a telephone conversation between Fry and the prisoner, Fry asked the prisoner if he knew anyone with mechanical experience. The prisoner nominated two friends of his, named Robert Roberti and Garry Bartle. On 30 November 1999 Roberti and Bartle flew to New Zealand. Their plane tickets were paid for out of money provided by Diez. On 23 December 1999 Bartle returned to Australia but Roberti remained in New Zealand.

25   From 23 December 1999 onwards the Australian Federal Police began intercepting calls on the prisoner’s mobile telephone service.

26   In a conversation between the prisoner and Diez before Christmas 1999 Diez said:-

“You will have to organise some people to collect the ‘building supplies’ (drugs) once they arrive in Sydney. You will also be there and be responsible for it”.

27   The prisoner recruited as a member of the criminal organisation a friend of his named Peter Fox and Fox travelled to New Zealand.

28   In a telephone conversation in early January 2000 Fox told the prisoner that there would be a meeting near Norfolk Island between the vessel bringing the cocaine from America and the yacht which would be sailed by Fry.

29   In the first week of January 2000 the prisoner arranged with Bartle for Bartle to supply and drive a van, in which the cocaine would be transported after it had been landed in Australia from the yacht.

30   The prisoner had further meetings with Diez in Sydney on 5 and 6 January 2000 and a meeting in Melbourne on 13 January with Diez and South American associates of Diez. The prisoner claimed in his statement that he was told at this meeting that he could not “pull out” of the venture. As indicated earlier, I am not prepared to find that the prisoner was an unwilling participant in the venture to import cocaine.

31   On 13 January 2000 the Australian Federal Police began intercepting calls on the mobile telephones of Bartle and Diez.

32   Fox returned from New Zealand on 14 January 2000.

33   Diez decided that a boat should be purchased, which would meet the “Ngaire Wha” and to which the drugs would be transferred. Between 15 and 17 January 2000 Bartle made enquiries about purchasing a boat. On 17 January the prisoner told Bartle that the boats Bartle had been looking at were too small. Bartle replied that a larger boat would cost $20,000 to $30,000.

34   On 16 January Diez received a large number of overseas calls in his voice mail. One call informed him that the vessel which was bringing the cocaine from America, the “Bora Bora”, had arrived at the place fixed for the rendezvous but that the “Ngaire Wha” had not yet arrived.

35   The “Ngaire Wha”, crewed by Fry, Thompson and Roberti, left New Zealand on some date in about the middle of January. A meeting between the “Bora Bora” and the “Ngaire Wha” ultimately took place and the cocaine was transferred from the “Bora Bora” to the “Ngaire Wha”.

36   On 19 January 2000 the “Bora Bora” reached New Zealand. After it arrived in New Zealand it was searched by New Zealand customs officers, who, unsurprisingly, found no drugs.

37   On 19 January the prisoner, his partner and their infant child travelled from Melbourne to Sydney. The purpose of his trip was “to finalise the importation”.

38   On 20 January Diez showed the prisoner a villa house at Botany, as a possible place for the storing of the cocaine after it had been landed.

39   On 21 January 2000 the prisoner, Fox and Bartle attended a boat marina at Gladesville, for the purpose of purchasing a boat to which the drugs would be transferred from the “Ngaire Wha”. On the following day the prisoner, Fox and Bartle returned to the marina and paid a deposit on the purchase of a power boat called the “Salamander”.

40   From 20 January onwards the prisoner frequently checked on the progress of the “Ngaire Wha” by telephoning Fry on Fry’s satellite telephone. The prisoner also had numerous telephone conversations with Diez regarding the progress of the “Ngaire Wha”. On 23 January the prisoner reported to Diez that everything was going well but that the “Ngaire Wha” was travelling more slowly than had been expected.

41   On 24 January the prisoner told Diez that there would be a test drive of “the car” (that is the “Salamander”). On 25 January the prisoner, Bartle and Fox took the “Salamander” for a test run. On 26 January the prisoner had conversations with Bartle about the payment of the balance of the purchase money for the “Salamander”. Diez provided $30,000 for this purpose. On 28 January Fox and Bartle attended at the Gladesville marina and paid the balance of the purchase price for the “Salamander”. However, the “Salamander” was left at its mooring at Gladesville.

42   Fry informed the prisoner by telephone that, when the “Ngaire Wha” arrived in Sydney, it would require repairs to its sails, a supply of diesel and a mooring place. The prisoner instructed Fox and Bartle to attend to these matters.

43   Just prior to the “Ngaire Wha” arriving in Australia, it was decided not to use the “Salamander” to transport the cocaine from the “Ngaire Wha” to the shore. The prisoner informed Bartle that it was no longer proposed to use the “Salamander” in the importation.

44   On 31 January the prisoner, Fox and Bartle looked at a potential unloading site at Parsley Bay in Broken Bay, near Brooklyn or Patonga. The prisoner decided that the site would be a good place for the “Ngaire Wha” to moor and for the cocaine to be unloaded from the “Ngaire Wha” to Bartle’s vehicle. The prisoner, Fox and Bartle returned to Sydney.

45   On the evening of 31 January the prisoner, Fox, Bartle and McCaffrey travelled to Parsley Bay and checked into a hotel. At about midnight they went to Parsley Bay, to await the arrival of the “Ngaire Wha”.

46   At about 2 am on 1 February the “Ngaire Wha” entered Broken Bay. At about 3.30 am police boarded the “Ngaire Wha” and arrested Thompson and Roberti. Fry was not on the yacht but was later discovered hiding under a wharf and he also was arrested. Twenty-one bales of cocaine were found on the “Ngaire Wha”.

47   At about 7.30 am the prisoner, Bartle and Fox were arrested. McCaffrey who had remained in a vehicle was able to make his escape.

48   In his first statement of 2 and 3 February 2000 the prisoner said that he was to be paid for his involvement in the importation an amount of between $200,000 and $500,000, depending on the amount of the cocaine. In this first statement the prisoner summarised what he said he knew of the roles of the other participants in the enterprise.

49   In his second statement of 24 August 2000 the prisoner said that in his first statement he had understated the amount he was to receive for his participation in the venture and had also understated the roles in the enterprise of Bartle, Fox, McCaffrey and Roberti. In this second statement the prisoner said that he was to receive ten kilograms of cocaine, that is approximately $1 million, for his participation, but out of that he would have had to have paid each of Bartle and Fox an amount of $150,000 and he would have had to have paid McCaffrey a similar amount, with the consequence that his net reward would have been approximately $550,000.

50   The amount of cocaine seized from the “Ngaire Wha” was 5020471 kilograms gross. The net weight of pure cocaine was 383434 kilograms. The estimated wholesale value of the seized cocaine was $62,500,000.

51   I turn to the subjective features of the prisoner, some of which I have already noted.

52   The prisoner was born on 27 April 1956 in the United Kingdom. He was accordingly forty-three years old at the time he committed the offence and was arrested and he is now forty-four.

53   The prisoner left school at the age of fifteen and became a qualified plumber. He first came to Australia in 1979. In the early 1980’s he went back to the United Kingdom but then returned to Australia. He obtained a further qualification as a scaffolder and then worked at various times as a plumber or a scaffolder.

54   I have already referred to the prisoner’s conviction in 1993 on a charge of being knowingly concerned in the cultivation of cannabis and to the fact that he was an escapee at the time of committing the present offence. In 1987 he had been convicted on charges of cultivating and supplying Indian hemp but the passing of sentence had been deferred, upon his entering into a recognisance to be of good behaviour for two years. The prisoner had no criminal convictions, apart from these convictions in 1987 and 1993.

55   The prisoner has never married. However, at the time of his arrest he had been living for about four years with a woman by whom he has had a child, who is now aged fifteen months. For security reasons, there has been little contact between the prisoner and his partner and his child, since he was arrested.

56   The prisoner admitted his guilt on the day he was arrested and entered a plea of guilty at the first opportunity. He is entitled to a discount in sentencing for his plea of guilty, both because of its utilitarian value and because it evidences contrition. In his evidence before me the prisoner expressed his contrition with emotional fervour and I accept that he experiences genuine contrition.

57   A matter of very great importance in the sentencing of the prisoner is the co-operation or assistance (“the assistance”), which the prisoner has provided and has undertaken to provide.

58   Mr Heather provided a written statement relating to the assistance provided by the prisoner in relation to the importation and the following summary is taken from Mr Heather’s statement.

59   After the prisoner was arrested on 1 February he was taken to the Australian Federal Police office in Sydney. At about 1 o’clock in the afternoon of 1 February the prisoner agreed to assist the Federal Police.

60   At about 1.20 pm on 1 February, at the request of Australian Federal Police officers, the prisoner telephoned Diez on Diez’s mobile telephone. The prisoner conducted a telephone conversation with Diez in which Diez apparently spoke guardedly but in which he made statements indicating that he had some knowledge of an importation of drugs into Australia. Evidence of this conversation forms part of the Crown case against Diez. During the conversation the prisoner made an arrangement with Diez to meet Diez later in the afternoon. Diez came to the arranged meeting place and was arrested by Federal Police.

61   In the proceedings on sentence the Crown accepted that the prisoner had been instrumental in securing the arrest of Diez, the Australian principal in the criminal organisation. But for the prisoner’s assistance in telephoning Diez and arranging a meeting between himself and Diez, it is likely that Diez, having realised that something had gone wrong with the importation, would have absconded and avoided arrest.

62   By way of assisting the Australian Federal Police the prisoner participated in a long recorded interview on 2 February and made a long statement on 2 and 3 February. He participated in another interview on 24 August and made another statement on 24 August.

63   The prisoner has given a written undertaking inter alia to provide any further statements reasonably required from him and to give evidence for the Crown, in accordance with statements made by him, in court proceedings against the co-offenders.

64   Charges in relation to the importation have been brought against all of Diez, Fry, Bartle, Fox, Roberti and Thompson. Warrants have been issued for the arrest of McCaffrey but he so far remains at large. Committal proceedings against the co-accused are due to commence in the Central Local Court on 9 October 2000. The prisoner is the only witness for the Crown who is required for cross-examination.

65   Since 1 February the prisoner, because he has provided assistance, has been in protective custody, that is in more than usually onerous conditions of custody. By giving assistance, the prisoner has put himself and his immediate family at risk of reprisals.

66   In his statement Mr Heather says under the heading “Effect of statements (of the prisoner) on Crown brief):-

“Without Bateman’s evidence, the AFP brief of evidence against Bateman’s co-accused is strong. Bateman’s statements further strengthen the Crown case.
In particular, Bateman’s evidence bolsters the Crown case against Max Diez, who is a principal member of an international, organised crime syndicate, with strong links to South America, believed to be involved in the importation of commercial quantities of cocaine into Australia. The Crown case against Diez is a strong circumstantial case. Bateman’s evidence of his dealings with Diez during the planning stages of the importation and the period leading up to the arrival of the “Ngaire Wha” in Australia, forms an important part of the evidence against Diez. His evidence links numerous telephone conversations and meetings between Bateman and Diez, and many of Diez’s actions, to the Patonga Beach importation.
The statements provide to the court a detailed history of the importation from when the plan was first hatched in mid-1999, to the events of 1 February 2000, when Bateman, Fox and Bartle were arrested at Brooklyn. His evidence is corroborated by numerous sources of evidence, including telephone intercepts, call charge records, banking records, civilian witnesses and travel records.
The brief of evidence against Bateman and his co-accused is large and complex. Bateman’s evidence has the effect of putting many aspects of the brief into context. It also provides explanations for some of the actions of Bateman and his co-accused. For example, the reason for Diez’s and Fry’s travel to New Zealand, or the purpose of Bateman sending money to Fry in New Zealand in 1999. Bateman’s statement will assist the court in understanding the brief of evidence.
Bateman is expected to be subject to rigorous cross examination by defence counsel during the committal proceedings and trials”.

67   Apart from the assistance provided in relation to the importation of the cocaine, the prisoner has provided assistance in relation to other matters. Particulars of this other assistance have been supplied to me on the usual confidential basis.

68   In one of his statements Mr Heather says:-

“Perceived threat to Bateman and his family:
Bateman has put the lives of himself and his family at considerable risk, as a result of the assistance he has provided to the AFP. This opinion is based on the following factors:

· the large amount of cocaine involved in the Patonga Beach importation;

· the amount of money lost as a result of the Patonga Beach seizure;

· the length of the sentences that his co-accused are likely to receive if they are found guilty;

· the propensity for violence amongst some of the co-accused;

· the connections of some of the co-accused, in particular, Maximiliano Diez. Diez is a senior member of a transnational organised crime syndicate”.

69   In his oral evidence Mr Heather assessed the assistance provided by the prisoner as being “of considerable importance”.

70 The offence committed by the prisoner is an offence under s233B(1)(d) of the Customs Act. Because the quantity of cocaine imported was not less than a commercial quantity, the maximum penalty is imprisonment for life. Counsel for the Crown did not submit that it would be appropriate to impose on the prisoner a sentence of imprisonment for life. He submitted that some lesser sentence would be appropriate.

71   As the offence is a Federal offence, I take into account the provisions of Pt 1B of the Commonwealth Crimes Act, including but without being limited to, s 16, s16A(1), s 16A(2), s 16E, s 16F, s 16G, s 17A, s 19AB, s 19AG and s 21E.

72   I am required by s16A(1) to impose a sentence that is of a severity appropriate in all the circumstances of the offence.

73   I am satisfied that no sentence other than a sentence of imprisonment would be appropriate (s 17A).

74   I have taken into account the matters under s 16A(2), including

(a) the nature and circumstances of the offence
(f) the prisoner’s contrition
(g) the prisoner’s plea of guilty
(h) the prisoner’s co-operation with law enforcement agencies
(j) the deterrent effect the sentence may have on the prisoner
(k) the need to adequately punish the prisoner for the offence
(m) the subjective feature of the prisoner
(n) the prisoner’s prospects of rehabilitation, which I assess to be good and
(p) the probable effect that the sentence will have on the prisoner’s partner and child.

75   As the sentence will be served in a prison in New South Wales, where State sentences are not subject to remissions, I must take that fact into account in determining the length of the sentence (s 16G).

76 Under s 21E, if the sentence or the non-parole period is reduced because the offender has undertaken to co-operate with law enforcement authorities in proceedings relating to the offence, I must specify that the sentence or the non-parole period is being reduced for that reason and say what sentence or non-parole period would have been imposed but for that reduction.

77   In R v Wong: R v Leung (1999) 48 NSWLR 340 the Court of Criminal Appeal delivered a guideline judgment on sentencing for offences under s 233B of the Customs Act. The leading judgment was delivered by the Chief Justice. The guideline judgment is of limited direct relevance in the present case, because the guideline laid down by the Court “is intended to apply to couriers and persons low in the hierarchy of the importing organisation” (par 142).

78   Notwithstanding the limited direct relevance of Wong to the present case, where the prisoner was clearly not a courier or a person low in the hierarchy of the importing organisation, there are in the judgment of the Chief Justice in Wong important statements of principles to be applied in sentencing for an offence under s233B of the Customs Act.

79   At par 129 the Chief Justice said:-

“There are numerous statements in judgments of Courts of Criminal Appeal throughout Australia which emphasise the role that general deterrence must play in the determination of the level of sentences for offences against s 233B. Courts have frequently cited with approval the following observations of Brennan, Deane and Gallop JJ in Tait (1979) 46 FLR 386 at 399:
‘On the other hand the deterrent aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it. When an organised, costly and complex offence is contemplated the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate. Those who deliberately choose to run the risk of punishment in order to acquire a profit from the venture cannot point to mitigating circumstances of the sort which stand the chance offender in good stead. The extent to which a sentence recedes from the maximum in cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition’”.

80   At pars 130 and 131 the Chief Justice said that the quantity of drugs involved is “an exceptionally important aspect of the objective seriousness of the crime” but the quantity of drugs involved is “not determinative of the appropriate sentence”. The role played by the prisoner in the criminal organisation is significant for the sentencing of the prisoner (pars 132, 133).

81   Section 23 of the New South Wales Crimes (Sentencing Procedure) Act 1999 which deals with the power to reduce penalties because of assistance provided to law enforcement authorities, is not directly applicable to the sentencing of a Federal offender. However, it was accepted that the factors identified in ss(2) of s 23 are relevant to determining to what extent a sentence for a federal offence should be reduced, for assistance provided to law enforcement authorities.

82   In R v Tack Lee Pang (1999) 105 A Crim R 474 Wood CJ at CL in delivering the leading judgment in the Court of Criminal Appeal said at pars 13-15:-

“There is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20 and 50 per cent of the sentence that would otherwise have been imposed: Chu (unreported, Court of Criminal Appeal, NSW, No 60232 of 1998, 16 October 1998) and Behar (unreported, Court of Criminal Appeal, NSW, No 60363 of 1998), 14 October 1998).
In Raz (unreported, Court of Criminal Appeal, NSW, 17 December 1992) this Court by majority extended a discount of 55 per cent in resentencing a courier who had assisted the authorities and given evidence against other offenders. In Perrier and Richardson (no 2) [1991] 1 VR 717; (1990) 59 A Crim R 164 McGarvie J went so far as to suggest a discount of 66 and two-thirds per cent may be appropriate to provide the necessary incentive for couriers to implicate their co-offenders.
Whatever discount is given, the imperative remains that the end result must not be so far out of touch with the circumstances of the particular offence, and of the particular offender, so as to constitute an affront to community standards: R vGallagher (1991) 23 NSWLR 220 at 232-233, 260”.

83   In Tack Lee Pang the Court of Criminal Appeal held that a discount of 25 per cent, which had been allowed by the sentencing judge, was insufficient and that a discount of 50 per cent would have been appropriate. Likewise, in R v Meggett (1999) 107 A Crim R 257 Wood CJ at CL, as a sentencing judge, said that he allowed a discount of 50 per cent (par 40). His Honour commented:-

“Although that is a considerable discount, there is a very real public interest in encouraging people, such as the prisoner, to assist law enforcement authorities in their fight against those behind the drug trade”.

84 In sentencing for an offence under s233B of the Crimes Act, where the prisoner has provided assistance and is entitled to receive a discount in sentencing for that assistance, it has been a common practice for a sentencing judge to indicate the sentence he or she would have considered appropriate to the objective criminality of the offence, to indicate a percentage discount which the judge has decided to allow for assistance or for all favourable subjective circumstances including assistance, to reduce the putative figure by about one third to comply with s16G of the Commonwealth Crimes Act and then to divide the resulting sentence into a non-parole period and a parole period.

85   Such a practice, although not explicitly stated in his Honour’s remarks on sentence, would appear to have been followed by Wood CJ at CL in Meggett, in that his Honour held that, having regard only to the objective circumstances, a sentence of imprisonment in the order of thirty years would have been appropriate, but that a discount of 50 per cent should be applied and an adjustment pursuant to s16G of the Crimes Act should be made, producing the sentence which his Honour imposed of ten years with a non-parole period of six years.

86   In Wood CJ at CL’s remarks on sentence in Meggett his Honour said:-

“From that starting point, (a sentence of imprisonment in the order of thirty years) I observe that section 16G of the Crimes Act requires adjustment to the head sentence, as well as to any non-parole period that is set in relation to it, so as to allow for the absence of any system of remissions in this State…”
The sentence, as adjusted for that factor, needs to be further adjusted to allow for all of the remaining favourable subjective circumstances I have mentioned, but most particularly, those relating to the assistance past and future for which the discount previously mentioned is appropriate, and also for the early plea of guilty of the prisoner. In giving effect to those adjustments, however, I observe that the process is not to be reduced to a precise exercise in mathematics. Sentencing does not permit of such a structured approach (see Budiman Court of Criminal Appeal New South Wales September 1999) and Lett 27 March 1995. Moreover, several of the subjective factors identified in this case have an overlapping effect. To give each its full weight in turn could lead to a sentence which does not reflect the true criminality of the offender, and may well result in one which does not comply with section 16A(1) and (2)(k) of the Act.
In the end, the sentence must be one which ensures that the prisoner is adequately punished, and which is not so far out of touch with the circumstances of the case as to constitute an affront to the community (see Gallagher (1991) 53 A Crim R 218 and Pang (1999) CCA 4).

87   Earlier in these remarks I summarised the facts which I found to be established. I will now make some further findings.

88   The criminal enterprise in which the prisoner participated was on a very large scale, involving a huge quantity of 3834 kilograms of pure cocaine, elaborate planning over a protracted period, many participants and the expenditure of large sums of money.

89   A question which was much discussed in the proceedings on sentence was the level of the prisoner’s role in the hierarchy of the criminal organisation for the importing of the cocaine.

90   In par 52 of his first statement the prisoner said:-

“I would describe my involvement in the importation of cocaine on 1 February 2000 as a go between Fry and Diez and an organiser of workers for the yacht as Fry requested assistance. I paid money given to me by Diez to Fry and Fox for expenses on what was required to do the importation. On a number of occasions I made telegraphic transfers to Fry and to Thompson for the purchase of the yacht and for other expenses incurred by them Most of the money I sent to New Zealand was given to me by Diez. I sent about AUD $50,0000 of my own money to Fry in New Zealand, for which I was to be reimbursed by Diez. I also organised the persons to unload the cocaine from the yacht and transport the cocaine by ute to the destination specified by Diez…”

91   From my statement of the facts of the offence it is clear that among the acts done by the prisoner in furtherance of the criminal enterprise were nominating Fry to Diez as a person who could captain the yacht which would bring the cocaine to Australia and subsequently contacting Fry; being present at the first meeting between Diez and Fry; acting as a channel of communication between Diez and Fry; making payments of money on Diez’s instructions, usually with money provided by Diez but sometimes with his own money, for which he was reimbursed by Diez; recruiting or suggesting as members of the organisation Bartle, Roberti, McCaffrey and Fox; being in charge of the arrangements being made for the collecting and transporting of the cocaine after it arrived in Sydney; playing an active role in the acquisition of the Salamander; giving instructions to persons such as Fox and Bartle; choosing the location at Parsley Bay as a landing site for the cocaine; being in charge of the group who were at Parsley Bay on 1 February.

92   In the proceedings on sentence a number of possible labels for the prisoner’s role were suggested, such as “intermediary”, “conduit”, “deputy” (to Diez), “executive” and “go between”. In my opinion, many of these terms are not particularly helpful and obscure, as much as they reveal, the prisoner’s role in the criminal organisation.

93   It is clear that the prisoner was not a principal. The sole Australian principal was Diez and the prisoner acted on the instructions of Diez. The prisoner took no part in the inception of the enterprise or in the international aspects of the enterprise. He did not travel overseas in connection with the enterprise. He did not communicate with anyone in South America or Central America in connection with the enterprise (except for receiving one telephone call from Diez). He played no part in the devising of the enterprise, the acquisition of the cocaine or the financing of the enterprise.

94   The prisoner did have, as one of his functions, a function of acting as an intermediary between Diez and Fry and I accept that Diez was at pains to distance himself from Fry and to seek to interpose the prisoner between himself and Fry, who was to be the captain of the vessel bringing the cocaine to Australia.

95   On the other hand, it is not accurate, having regard to the many things the prisoner did in furtherance of the enterprise and the responsibilities the prisoner had, to describe him as merely an intermediary or a go between, especially if intermediary or go between are taken to mean simply a conduit or a cipher.

96   The prisoner had a more important role in the criminal organisation than persons such as Fox and Bartle, who took instructions from the prisoner. There was no person in the criminal organisation in Australia, apart from Diez, who had a role superior to the prisoner’s. However, it seems to me that the prisoner’s role fell short of being “a mid-level executive or organiser”, as that expression is described in par 26 of Wood CJ at CL’s remarks on sentence in Meggett.

97   Counsel for the prisoner submitted that Fry had a superior role to the prisoner. However, it is difficult to compare the roles of the prisoner and Fry, because of their very different functions.

98   The objective criminality of the prisoner was very great and I consider that an appropriate sentence, in the absence of any favourable subjective circumstances, would have been close to a life sentence. I consider that an appropriate sentence would have been substantially greater than a sentence in the order of thirty years, which Wood CJ at CL considered would have been appropriate in Meggett in the absence of any favourable subjective circumstances. At least one important difference between the present case and Meggett is the much greater quantity of cocaine involved in the present case.

99   It is necessary for me to determine the extent of the discount I should allow for the prisoner’s assistance.

100   In accordance with the factors identified in s23(2) of the New South Wales Crimes (Sentencing Procedure) Act I am satisfied, and it was not disputed by the Crown, that the prisoner’s assistance has been significant and useful and has been assessed as such by the Australian Federal Police; that the information provided by the prisoner, subject to some exceptions in his first interview and statement which were rectified in his second interview and statement, has been truthful, complete and reliable; that the assistance has been provided from the day of his arrest; that he has not already gained any benefits by reason of his assistance; that he has suffered and will continue to suffer harsher custodial conditions as a consequence of the assistance; that the prisoner and his partner and their infant child are at risk of injury by reason of the assistance he has provided; that the assistance the prisoner has provided concerns both the offence for which he is being sentenced and other offences; and that it is unlikely that the prisoner will commit any further offences after he is released.

101   It is particularly noteworthy in the present case that because of assistance provided by the prisoner the Australian principal in a major criminal organisation has been arrested and direct evidence, as distinct from merely circumstantial evidence, is available against that principal.

102   In the present case, given the evidence about the assistance provided and to be provided by the prisoner, including the evidence of Mr Heather and the findings I have made, I consider that I should allow a discount within the range of 20 per cent to 50 per cent towards the top of that range.. I do not consider that I should allow a discount for assistance of more than 50 per cent, as I was urged to do by counsel for the prisoner. The prisoner was not a mere courier and I am bound to ensure that s16A(1) and s16A(2)(k) of the Commonwealth Crimes Act are complied with.

103   It was further submitted by counsel for the prisoner that, apart from allowing a discount for assistance of more than 50 per cent, I should, in addition to the discount for assistance, allow a further substantial discount for the prisoner’s plea of guilty.

104   I have to take into account and allow a discount for the prisoner’s plea of guilty, entered at the first available opportunity, which evidences contrition and has utilitarian value and which entitles the prisoner to a discount in sentencing. However, I do not consider that I should allow both a very high discount for assistance and a substantial, independent, discount for the prisoner’s plea of guilty. I have already quoted what Wood CJ at CL said in a similar context in Meggett. In my opinion, the assistance provided by the prisoner and his plea of guilty do overlap and to give each its full weight in turn would result in a sentence which did not reflect the true criminality of the prisoner and in a sentence which would not comply with s16A(1) and s16A(2)(k) of the Commonwealth Crimes Act. As I have already noted, it is clear that the discount of 50 per cent which Wood CJ at CL said he would allow in Meggett was intended by his Honour to cover all the favourable subjective circumstances of Meggett, including assistance and an early plea of guilty. In my opinion, I should allow a discount of about 50 per cent for all the favourable subjective circumstances of the prisoner, including the assistance and the plea of guilty, and I adopt the reasoning which led Wood CJ at CL to a similar conclusion in Meggett.

105 Commencing with a term of imprisonment which would be appropriate to the prisoner’s objective criminality, being a sentence close to a life sentence and exceeding substantially a sentence in the order of thirty years; and allowing the prisoner a discount of 50 per cent for all favourable subjective circumstances; and making a downward adjustment of about one third as required by s16G of the Commonwealth Crimes Act, I have arrived at a sentence of thirteen years.

106 Accordingly, Russell Douglas Bateman I sentence you to imprisonment for thirteen years to date from 1 February 2000. I fix a non-parole period of eight and a half years to date from 1 February 2000. The earliest date on which you will be eligible for release on parole will be 1 August 2008. In accordance with s21E of the Crimes Act I specify that, but for the undertaking to give future assistance, the sentence would have been one of imprisonment for twenty years with a non-parole period of thirteen years.

107   I am bound to explain to you what the effect of the sentence is. It means that you will serve a minimum term of imprisonment of eight and a half years before being eligible for release on parole, which release would be available for a period of up to a further four and a half years. Neither of those periods is subject to any further reduction for remissions. That reduction has already been taken into account by me in fixing the period for your offence. After eight and a half years you may be released on parole. If so, that would be subject to supervision as well as subject to various conditions, including a condition that you be of good behaviour. If during any period of release on parole you re-offend or breach any of the conditions of parole then that parole may be revoked, in which event you would be liable to return to prison to serve the balance of the sentence. Alternatively, the parole may be amended to provide a partial return or altered provisions as to the supervision or conditions to which you would be subject.

108   I further inform you that if you do not comply with your undertaking to give assistance in the future, then the Commonwealth Director of Public Prosecutions will be entitled to appeal to the Court of Criminal Appeal which may then re-sentence you. In so doing the Court of Criminal Appeal would take into account the remarks that I have made about what the appropriate sentence would be but for your undertaking to assist in the future. It will be a matter for that court to determine in all the circumstances what an appropriate substituted sentence would be.

**********

Last Modified: 09/09/2004