R v Faber - [2020] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FABER
[2020] SASCFC 49
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bampton, The Honourable Justice Parker and The Honourable Justice Livesey)
9 June 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - POSSESSION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Application for permission to appeal by Commonwealth Director of Public Prosecutions against sentence imposed in the District Court – where the respondent was found guilty of importing a marketable quantity of a border controlled drug (MDMA) contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) (‘the Code’) and pleaded guilty to possessing a controlled drug (ketamine) contrary to s 308.1(1) of the Code – the respondent was sentenced to a head sentence of four years, two months and 13 days and a non-parole period of 16 months – whether the sentence imposed is manifestly inadequate.
Held (per Bampton J, Parker and Livesey JJ agreeing): the head sentence for the importation offence is not manifestly inadequate – the non-parole period imposed is manifestly inadequate – having regard to the circumstances that would produce an injustice if the appeal is allowed, permission to appeal refused.
Criminal Code Act 1995 (Cth) s 302, s 307, s 308; Criminal Code Regulations 2002 (Cth) reg 5D; Crimes Act 1914 (Cth) s 16A; Judiciary Act 1903 (Cth) s 68(2), s 80; Criminal Procedure Act 1921 (SA) s 150, s 157(1)(a)(iii), s 158(7); Criminal Law Consolidation Act 1935 (SA) s 150; Criminal Procedure Act 2009 (Vic) s 287; Correctional Services Act 1982 (SA) s 37A, referred to.
Green v The Queen (2011) 244 CLR 462; R v Kong [2013] SASCFC 15, applied.
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; R v Buttigieg [2020] SASCFC 38; Director of Public Prosecutions (Cth) v KMD (2015) 254 A Crim R 244; Ludwig v The Queen [2015] VSCA 35, discussed.
R v Pham (2015) 256 CLR 550; Wong v The Queen (2001) 207 CLR 584; R v Chen & Ors (2002) 130 A Crim R 300; R v Stanbouli [2003] NSWCCA 355; R v Nguyen; R v Pham (2010) 205 A Crim R 106; R v Pang (1999) 105 A Crim R 474; Everett v The Queen (1994) 181 CLR 295; R v V, AJ [2012] SASCFC 10; Pham v The Queen (2014) 244 A Crim R 252; Director of Public Prosecutions (Vic) v Holder (2014) 41 VR 467; Adams v The Queen (2008) 234 CLR 143; Dunning v State of Tasmania [2018] TASCCA 21; Matthews v The Queen (2014) 44 VR 280; R v Gjoni [2012] SASCFC 48; R v Faehrmann, Moore & Price-Austin (2014) 118 SASR 549, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly inadequate"

R v FABER
[2020] SASCFC 49
Court of Criminal Appeal: Bampton, Parker and Livesey JJ

BAMPTON J: Merlin Faber was charged with one count of importing a marketable quantity of a border controlled drug (MDMA) contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) (“the Code”) (“the importation offence”) and one count of trafficking a controlled drug (ketamine) contrary to s 302.4(1) of the Code (“the trafficking offence”). Mr Faber pleaded not guilty to both offences and on 24 November 2017 was committed to the District Court for trial.
Mr Faber pleaded guilty at arraignment before a jury to the alternative offence of importing a border controlled drug with no commercial intent contrary to s 307.4(1) of the Code and possessing a controlled drug (ketamine) contrary to s 308.1(1) of the Code (“the possession offence”). The pleas were not accepted by the Commonwealth Director of Public Prosecutions (“the Director”). It is noted that Mr Faber first offered to plead to the possession offence three weeks before trial.
On 23 September 2019 following a four-day trial, Mr Faber was found guilty of the importation offence and the jury acquitted him of the trafficking offence. The allocutus was then administered in relation to the jury’s finding of guilt in respect of the importation offence and Mr Faber’s plea of guilty to the possession offence.
The maximum penalties
The maximum penalty for the importation offence is imprisonment for 25 years or 5,000 penalty units ($900,000) or both.
The maximum penalty for the possession offence is imprisonment for two years or 400 penalty units ($72,000) or both.
Mr Faber was sentenced on 19 December 2019 to three years and nine months imprisonment for the importation offence and a non-parole period of 16 months was fixed. A sentence of six months imprisonment reduced by 10 per cent for the guilty plea, leaving a head sentence of five months and 13 days was imposed for the possession offence. The possession offence sentence was ordered to be served cumulatively upon the sentence imposed in respect of the importation offence. That left a head sentence of four years, two months, and 13 days and a non-parole period of 16 months.
The Director seeks permission to appeal on the grounds that the sentence imposed for the importation offence and the non-parole period are manifestly inadequate.
Background to the offending
The prosecution led evidence during Mr Faber’s District Court trial that on 20 March 2017 a parcel with a tracking number (“the parcel”) was posted from France. The parcel recorded the sender’s name as Andre Parmentier and the addressee’s name as Merlin Faber of Klemzig, South Australia. The parcel was declared as containing an Encrypt external hard disc, Dell XPS Alienware 4 TB 2 TB. Upon the parcel’s arrival in Melbourne on 26 March 2017, Australian Border Force officers selected the parcel for further examination.
Upon examination, the parcel was found to contain two silver foil packets, each labelled “Alienware High Performance Gaming System”. These packets contained beige crystals weighing 502.4 grams. Analysis by the National Measurement Institute of the crystals revealed that they contained 390.8 grams of pure MDMA (“the MDMA”).
On 29 March 2017, the Australian Federal Police (“the AFP”) removed the MDMA, replaced it with a legal substance, and arranged for the parcel to be delivered by Australia Post. At approximately 11.20 am on 30 March 2017, an Australia Post employee attended at Mr Faber’s address to deliver the parcel containing the substituted substance. Mr Faber answered the door and the following conversation with the Australia Post employee took place:
AUS POST:I have a parcel for Merlin Faber.
FABER:That’s my housemate.
AUS POST:Well I’ll need your name to put in the scanner cause you can’t sign as someone else.
FABER:Actually I’m Merlin.
AUS POST:Sign here.
Mr Faber signed for the parcel and upon taking delivery placed it in a Nintendo bag in the doorway of a bedroom of the house. He then made three phone calls using his mobile phone to numbers associated with a person named Nick Zacharia.
Later that morning, on 30 March 2017, the AFP executed a search warrant at Mr Faber’s address. Upon searching the premises, the AFP seized the following items:
(i)the Nintendo bag containing the parcel delivered by Australia Post;
(ii)a small monkey backpack found in a wardrobe in Mr Faber’s bedroom.
The monkey backpack contained two sealable bags containing white powder, small sealable bags, scales, empty gelatine capsules, and MDMA in a sealable plastic bag within a plastic sealable food container.
Trace amounts of MDMA and ketamine were located on the scales, as well as Mr Faber’s fingerprint.
The white powder in the two sealable bags weighed 65 grams. It was analysed by the National Measurement Institute and found to contain 44.8 grams of pure ketamine.
Mr Faber’s phone was also seized and upon analysis revealed that he had exchanged text messages in August 2015, October 2016, and November 2016, the contents of which were indicative of him engaging in the sale of illicit drugs.
It was the prosecution case that Mr Faber performed a principal role in the importation of the MDMA by paying $2,500 to finance the importation to a man named Nick Zacharia, and providing his name and address for the importation.
The plan involved Mr Faber taking possession of the consignment of the MDMA from Australia Post and then providing some of the consignment to Mr Zacharia and retaining the rest for himself.
Part 9.1 of the Code prescribes a quantity based penalty regime for a range of offences which differentiates between various types of border controlled drugs according to prescribed pure weight. Regulation 5D of the Criminal Code Regulations 2002 (Cth), Schedule 4, item 128 prescribes that the marketable threshold for MDMA is 0.5 grams. Mr Faber imported 502.4 grams of powder containing 390.8 grams of pure MDMA, a quantity more than 700 times the marketable quantity.
502.4 grams of MDMA had a value of approximately $75,630 and $125,600 in South Australia between March and June 2017.
Mr Faber gave evidence during the trial that he was only expecting the consignment to contain 100 to 150 grams of MDMA. The sentencing Judge said he accepted the prosecution submission that is was not plausible that he was not told the approximate quantity of MDMA that was to be imported given he was the person entrusted to take delivery of the consignment. The Judge noted that, in any event, 100 to 150 grams of MDMA was 200 to 300 times the marketable quantity threshold. The Judge found that Mr Faber intended to sell a portion of the MDMA imported and that he believed that Mr Zacharia would do the same with his portion. The Judge also found that the text messages found on Mr Faber’s phone indicated he was involved in the selling of illicit drugs in a minor way, but that none of the usual indicia of trafficking were present. His Honour referred to the presence of chemicals found by police and documentation pertaining to the manufacture of illicit drugs.
Mr Faber’s personal circumstances
Mr Faber’s father is Australian and his mother Canadian. Following his parents’ divorce, Mr Faber lived with his mother in Vancouver for 10 years. It was during his teenage years in Canada that he was first introduced to drugs. Mr Faber returned to Adelaide at age 18 and then moved to Western Australia to study counterterrorism and international politics at Murdoch University. The Judge noted that Mr Faber had worked consistently whilst living in Australia including as a forklift driver and at the time of sentence as a logistics specialist.
Mr Faber was aged 22 at the time of the offending and is now aged 26 years. He had no prior history of drug offending and his only antecedent criminal history was a driving offence for which he was fined and disqualified from driving.
Letters of support from Mr Faber’s father and Dr Victor Webster, a former Director of Emergency Services at the Royal Adelaide Hospital, were provided to the Judge during sentencing submissions. The letters acknowledged Mr Faber’s wrongdoing. Mr Faber’s father spoke of the challenges and consequences Mr Faber has had to face as a result of his actions. His father also referred to the change in behaviour he had observed in him over the past few years. He said that Mr Faber was once a forward thinking and confident young man and was now someone who was much more subdued and worried about his future prospects. He spoke of Mr Faber’s intention to return to university studies and to put his old habits behind him.
Dr Webster, a family friend, spoke of Mr Faber’s childhood and teenage years being marked by living with his psychologically unstable, alcoholic mother in increasing poverty and having to shoulder the responsibility and care for his younger brother. Dr Webster stated that Mr Faber had confided in him that he turned to drugs in his teens “which seemed to very obviously be a coping measure for his extremely unhappy childhood”. Dr Webster is of the opinion that despite Mr Faber’s most unfortunate childhood experiences he is a young man of outstanding ability, character and potential. He added that Mr Faber has an unusual degree of empathy for his mother and father. He concluded his letter saying that whilst Mr Faber has attempted to overcome the profound psychological trauma suffered in his formative years with limited success, he was confident the predicament he is now in will act as a galvanising force in assisting him realise his considerable potential. It was submitted that despite the trauma suffered by Mr Faber he does not suffer any deep-seated or serious psychological problems that would impede his rehabilitation.
The Judge referred to Mr Faber’s recent negative on-site drug and alcohol test performed at his work place and acknowledged Mr Faber’s counsel’s submissions to the effect that Mr Faber had greatly reduced his drug use and had been compliant with the terms of his bail since 20 March 2017.
The sentencing submissions and remarks
The Director acknowledged, during sentencing submissions, that Mr Faber’s plea to the possession offence demonstrates a degree of contrition and willingness to facilitate the course of justice, however, given the timing of the plea there was little utilitarian value in it. It was also acknowledged that Mr Faber co-operated in the course of the trial by admitting a large number of facts, including the elements of each charged offence, and that had reduced the length of the trial.
As national consistency is an important consideration in sentencing federal offenders[1] the Judge was provided a comparative sentencing schedule (“the schedule”) to give guidance as to sentences imposed in earlier cases and the circumstances that gave rise to those sentences. It was submitted that having regard to the earlier cases served two purposes; they provided guidance as to the identification and application of relevant sentencing principles and may reveal discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence. The Judge was informed that, due to the limited number of appellate decisions concerning importation of a marketable quantity of MDMA, the schedule included sentences imposed in respect of the same offence involving other drugs in quantities that are comparatively proportionate to the applicable marketable threshold.
[1] R v Pham (2015) 256 CLR 550 at [26].
In his remarks, the Judge stated that he must give “chief weight” to both personal and general deterrence in fixing a sentence for the importation offence.[2] His Honour said his sentence must be of such severity that it will deter others from engaging in like offending as well as signalling that the potential financial rewards are neutralised by severe punishment.[3] Finally, the Judge said that involvement in a drug importation offence at any level must attract a significant sentence otherwise the interests of general deterrence are not served.[4]
[2]    Wong v The Queen (2001) 207 CLR 584 at [64].
[3]    R v Chen & Ors (2002) 130 A Crim R 300 at 382; R v Stanbouli [2003] NSWCCA 355 at [114]; R v Nguyen; R v Pham (2010) 205 A Crim R 106 at [72(h)].
[4]    R v Pang (1999) 105 A Crim R 474 at [6].
The Judge referred to reducing the sentence that would otherwise have been imposed for the possession offence on account of Mr Faber’s guilty plea and his “facilitation of the course of justice”.
Following the imposition of the sentence the sentencing Judge made the following concluding remarks:
As your sentence of imprisonment is in excess of the three years the imposition of a recognisance release order or home detention order is beyond the proper exercise of this court’s discretion. I acknowledge this is a matter entirely for the director of the Department of Corrections. I very strongly recommend that the director of the Department of Corrections exercises the discretion reposed in that office, which is not reposed in me as a sentencing judge, as soon as possible, if not immediately, to require you Mr Faber to serve your sentence on home detention arrangements. However, as I have said, that is a matter entirely for the director.
The Judge was referring to the “absolute discretion” the Chief Executive Officer of the Department for Correctional Services has, pursuant to s 37A of the Correctional Services Act 1982 (SA), to release a prisoner from prison to serve a period of home detention.
The Director’s application for permission to appeal
It was submitted that this matter is a rare and exceptional case[5] warranting the grant of permission as it represents an appropriate opportunity for the Court to maintain an adequate standard for sentencing in relation to Commonwealth drug importation offences.
[5] Everett v The Queen (1994) 181 CLR 295 at 299.
The Director contended that the circumstances of this matter demonstrate that the sentence imposed is out of step with the appropriate range of sentences such that it can be inferred that there was an error in principle in the sentencing process, even if the error can only be inferred from the outcome.
The Director submitted that the Court will, in determining whether to grant permission, assess whether the sentence imposed on Mr Faber was so far out of the appropriate range of sentences or was so disproportionate to the seriousness of the crime, as to require intervention or to provide an opportunity for the Court to maintain adequate sentencing standards. In assessing the sentence imposed for these purposes, the Director submitted that the Court will apply s 16A of the Crimes Act 1914 (Cth) (“the Crimes Act”) and its overarching requirement that a federal sentence be a sentence of appropriate severity.
The Director referred to the High Court’s observation in Bui v DPP (Cth)[6] that the term “double jeopardy” is not always used with a single meaning and that the term has been used to describe the presumed distress and anxiety a convicted person may feel when “faced with the prospect of resentencing by an appeal court”.[7] The High Court held that such presumed anxiety and distress on resentencing following a successful Crown appeal was not a principle accommodated by s 16A of the Crimes Act and was not picked up and applied by s 80 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).[8]
[6] (2012) 244 CLR 638 at [14].
[7] Bui v DPP (Cth) (2012) 244 CLR 638 at [28].
[8] Bui v DPP (Cth) (2012) 244 CLR 638 at [28].
The Director submitted that as presumed anxiety and distress is not relevant to the imposition of a federal sentence, such presumed anxiety and distress does not apply to the question of whether to grant permission. It was submitted that whilst the Court is not resentencing at the permission stage, the Court will assess the sentence imposed in accordance with s 16A, which does not accommodate presumed anxiety and distress.
The Director further contended that if the Court grants permission, the Court will not have regard to presumed anxiety and distress when assessing whether the sentence imposed at first instance is manifestly inadequate. What reveals manifest inadequacy is a consideration of all the matters that are relevant to fixing the sentence. As presumed anxiety and distress is not relevant to fixing a federal sentence, such consideration is inapplicable to the determination of manifest inadequacy in the appeal.
Consideration of the application for permission to appeal
In determining this appeal, the Court exercises federal jurisdiction pursuant to s 68(2) of the Judiciary Act, which picks up and applies s 150, s 157(1)(a)(iii), and s 158(7) of the Criminal Procedure Act 1921 (SA).
Pursuant to s 157(1)(a)(iii), the Director may appeal the sentence imposed on Mr Faber with permission of the Full Court.

Upon the grant of permission, s 158(7) provides the Court power to resentence:
(7)… on an appeal against sentence, the Full Court must—
(a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for re-sentencing; or
(b) in any other case—dismiss the appeal.
(Emphasis added)
Section 150 provides that in allowing an appeal against sentence:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)impose the sentence that should have been imposed in the first instance; and
(b)order that the sentence—
(i) will be taken to have come into effect on a date before the date of the order; or
(ii) will take effect on a date on or after the date of the order.”
Appellate courts have had regard to the principle of double jeopardy in considering:
·whether permission should be granted to the prosecution to appeal;
·whether a prosecution appeal should be allowed; and
·upon quashing a sentence imposed at first instance the sentence to be imposed in resentencing.
Section 150 of the Criminal Law Consolidation Act 1935 (SA), as did its predecessor s 340, precludes the Court from having regard to double jeopardy when resentencing. The authorities of this Court concerning s 340 have referred to s 340 as not precluding the application of double jeopardy in considering whether permission should be granted to the prosecution to appeal and if upon a grant of permission whether to allow the appeal in the exercise of the Court’s residual discretion.[9]
[9] R v V, AJ [2012] SASCFC 10 at [22].
Bui v DPP (Cth)
The High Court in Bui held that s 16A does not accommodate the principle of double jeopardy in relation to a successful Commonwealth appeal against a federal sentence. The High Court said:[10]
Section 16A does not accommodate the “principle” which the appellant seeks to introduce. The appellant submitted that this principle was one of the “other matters” which “the court must take into account” in determining sentence and that it was a matter that operated as an automatic “discount” on the sentence that would otherwise be imposed. Application of an automatic discount would not be consistent with the requirement of s 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. And to read s 16A in the manner submitted by the appellant would be to gloss the text impermissibly by introducing a notion for which there is no textual foundation. It would go well beyond giving relevant content to any of the expressions found in the section.
Moreover, the terms of s 16A, in particular those of sub-s (2), are addressed to matters affecting sentencing which are to be applied by all courts exercising federal jurisdiction upon sentencing. Those terms draw no distinction between the matters to be taken into account by a sentencing court at first instance or by a court on appeal. It has nothing to say about particular matters which an appeal court alone may take into account when considering re-sentencing. No warrant is therefore provided for interpreting s 16A as encompassing concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy.
(Footnote omitted)
[10] (2012) 244 CLR 638 at [19]-[20].
It should be noted the relevant Victorian provision – s 287 of the Criminal Procedure Act 2009 (Vic) – gave the Commonwealth Director a right of appeal against a sentence. As set out above, permission must be sought by the Director in this State.
Mr Faber submitted that the High Court’s decision in Bui is limited by the grant of special leave regarding whether the provisions of the Criminal Procedure Act 2009 (Vic) applied to the Director’s appeal against sentence. It was submitted that the High Court did not go as far as extinguishing the notion of double jeopardy as it applies to the question of whether permission is granted and whether the appeal is allowed.
The High Court’s decision in Bui is confined to the question of the application of the principle of double jeopardy on resentencing. The decision is not concerned with the principle of double jeopardy as it applies to whether permission should be granted to the prosecution to appeal or whether a prosecution appeal should be allowed. The High Court did not abrogate the common law principle that double jeopardy must be considered by this Court in determining whether to grant the Director’s application for permission to appeal against sentence or in the exercise of its residual discretion.
In R v Buttigieg,[11] the Commonwealth Director of Public Prosecutions made the same submission she argued on this appeal that as “presumed anxiety and distress” is not a factor to consider when resentencing an offender, that “presumed anxiety and distress” must also be ignored at the permission stage when considering whether the sentence under appeal was manifestly inadequate. Justice Lovell (with whom the Chief Justice and Nicholson J agreed) agreed with the Director’s submission if it is restricted to an assessment of the adequacy or otherwise of the sentence. Justice Lovell explained:[12]
However, in my view the ‘presumed stress and anxiety’ discussed at the permission stage is relevant to the question of a person being twice vexed by the repeated exercise of the coercive power of the State. That is, when considering the public policy issue at the permission stage, the Court is entitled to assume that a prisoner will be stressed and anxious about a Crown appeal. If permission to appeal is granted and the offender resentenced, stress and anxiety cannot be presumed but rather it must be proved before it can be taken into account under s16A(2)(m) of the Crimes Act.
[11] [2020] SASCFC 38.
[12] [2020] SASCFC 38 at [47].
The complaint about the adequacy of the sentence
The Director submitted that there are five key points to her proposed appeal. The first is that Mr Faber ran a trial in relation to the importation and he therefore cannot receive any discount for the utilitarian benefits of a plea of guilty or any inferred remorse that a plea might show. Secondly, Mr Faber’s evidence at trial was considered by the Judge in sentencing and was disbelieved in relation to key issues. Again, that is relevant to the consideration of remorse and the findings of the Judge, it was submitted, are important in this appeal. Thirdly, it was submitted that Mr Faber’s antecedents are unremarkable. That is not to say that there were not things that could be said in his favour. He was 22 at the time of the offences and 25 at the time of sentence. He was a social drug user, but not an addict, and there was no mental health evidence. Fourthly, it was submitted that the comparable cases in relation the importation offence, when examined in the circumstances of this matter, dictate that a sentence significantly longer than the three years and nine months imposed was called for. Fifthly, the Director submitted that the 16-month non-parole period was far too short to provide sufficient deterrent effect.
The Director pointed out that a sentencing court cannot make its own determination of the seriousness or harmful effect of various drugs. Rather, the weight based regime is what Parliament has determined, that is, the Code provides a quantity based regime for a range of serious offences which differentiate between various types of border controlled drugs according to prescribed pure weight amounts. The Director referred to the schedule provided to the sentencing Judge and pointed to the top of the document which notes that 390.8 grams of MDMA is 781.6 times the marketable quantity threshold of MDMA. It was pointed out that because the schedule otherwise primarily deals with cocaine, it notes that the equivalent ratio of the marketable quantity is 1.5636 kilograms of cocaine. It was also pointed out that the marketable quantity of cocaine is at least two grams and less than two kilograms. The marketable quantity of MDMA is at least one gram and less than 500 grams. In relation to Mr Faber’s submission that the cases in the schedule concerned significantly higher quantities of drugs, the Court was taken to the decision in Director of Public Prosecutions (Cth) v KMD:[13]
As Maxwell P suggested in Pham v The Queen,[14] if a past sentence is to give a sentencing judge a meaningful basis for comparison, the quantities involved must be converted to a common denominator.[15] Fortunately, this can be done very easily. Since the upper limit of marketable quantity for each drug is the specified minimum commercial quantity, it is possible to convert every marketable quantity into a percentage of the commercial quantity (CQ) for that drug. Moreover, that conversion can be done with precision. As the High Court said, it is “a matter of mathematical calculation”.[16]
(Footnotes in original)
[13] (2015) 254 A Crim R 244 at [56].
[14] Pham v The Queen (2014) 244 A Crim R 252.
[15] Pham v The Queen (2014) 244 A Crim R 252 at [34]; see Director of Public Prosecutions (Vic) v Holder (2014) 41 VR 467 at [10].
[16] Adams v The Queen (2008) 234 CLR 143; 183 A Crim R 534 at [8].
It was submitted that in this case a quantity 781 times the threshold marketable quantity can be translated into 78 per cent of the commercial quantity. At [57] of KMD, the Court provided an example as follows:
Let it be assumed that the sentencing court is dealing with an offender who trafficked 750 g of heroin. Under the Regulations, that represents 50% of a CQ. The prosecution wishes to rely — for the purposes of comparison — on the sentence imposed on a different offender, who imported 750 g of cocaine. Because the CQ of cocaine is 2 kg, that quantity represented only 37.5% of a CQ. Although the raw quantities were the same in each case, converting them into percentages of CQ in this way would tell the sentencing court that — so far as quantity is a measure of seriousness — the case before the court was materially more serious than the case relied on as the comparator.
The Director accepted that the Crown must confront the difference in street value and referred to the cases in the schedule, noting that the value of cocaine is significantly higher. It was pointed out that the cases indicate that where expected profit is known that expectation of profit becomes important and in those circumstances the value of the drug being imported may become a very significant feature.
It was submitted by the Director that this was not a matter where Mr Faber had suffered extreme levels of hardship that might explain what she argued is an unduly lenient sentence. It was acknowledged that there were matters of mitigation in Mr Faber’s favour, but not of such a high order. The Director pointed to the slightly unusual structure to the sentence imposed by the Judge. The Judge sentenced Mr Faber to three years and nine months for the importation offence. He then fixed a non-parole period of 16 months and the rationale for doing so was “to reflect your comparatively young age, your lack of antecedents and the material in support of you which has been filed in this court”. The Judge then imposed a sentence of six months reduced by 10 per cent to five months and 13 days for the possession offence to be served cumulatively on the sentence for the importation offence.
The Director complained that the non-parole period of 16 months represents approximately 30 per cent of the head sentence of four years, two months, and 13 days. The Director argued that the sentence is manifestly inadequate as both the head sentence and non-parole period are not of a severity appropriate in all the circumstances of the offending. It was submitted that the lack of adequate deterrence provided by the sentence is demonstrated by the sentence of three years and nine months, which is markedly lower than sentences imposed or upheld by intermediate courts of appeal in comparable cases. The Director further complained that the inadequate sentence was then further ameliorated by the imposition of a non-parole period of 16 months for the whole of the effective sentence. It was contended that the importance of general deterrence in sentencing for drug importation offences strongly militates against such a low sentence for a principal offender motivated by profit.
It was submitted that this inadequacy and consequent error is apparent when proper regard is had to the seriousness of the offending, Mr Faber’s role as a principal, the need for general deterrence, and the requirement for national consistency in sentencing for federal drug import offences.
The Director submitted that s 16A(2)(a) of the Crimes Act requires the Court to take into account the nature and circumstances of the offending. It was contended that Mr Faber played a principal role in the importation of the MDMA in that he was, as the Judge found, “intimately involved in the planning, financing and facilitating of the importation and then the collection of a marketable quantity of MDMA”. It was pointed out that Mr Faber’s importation of the MDMA was not an isolated incident, in that he had arranged for the importation to be sent to Australia so that he could sell a portion as part of his minor pre-existing drug dealing enterprise.
The Director asked the Court to have regard to the fact that the sentencing Judge relied on various items that were found in the house, including empty gelatine packets, MDMA and ketamine on the scales, chemicals elsewhere in the house and documentation on the manufacture of illicit drugs including MDMA. The Judge said:
It is for these reasons that I do not accept your counsel’s submissions and I find that you were intimately involved in the planning, financing and facilitating of the importation and then the collection of a marketable quantity of MDMA. I therefore do not accept the submission that you had no business in selling drugs. Even if I accepted your evidence that you were only expecting the consignment to contain about 100-150 g of MDMA, such amount was still between 200-300 times the marketable quantity threshold; that is a substantial quantity for a singular person’s use and was of significant value.
The Director submitted in relation to Mr Faber’s argument that he gave evidence at trial that he was selling a portion of a portion of the MDMA and would use between 0.2 and one gram of MDMA per weekend. It was suggested that if only 100 grams of MDMA was to be imported according to Mr Faber’s evidence, it would have lasted him between two and nine years. The Director reiterated that Mr Faber was not accepted as regards his expectation of the quantity to be imported. So, using at most one gram per weekend of the total amount imported of 390.8 grams, it was submitted that the imported MDMA was sufficient to supply Mr Faber’s personal use for between nine and 48 years. The Director submitted that it is just not rational that someone would store that quantity of MDMA intending to sell some of it and quarantine the rest. Having made that submission, the Director conceded that “one cannot be specific that this was a commercial importation”.
The Director relied on the intermediate appellate decisions detailed in the schedule as demonstrating that in comparable cases periods of imprisonment were imposed or upheld on appeal that were all significantly longer than that imposed in this matter. It was submitted that in all comparable cases that involved quantities (as a ratio of the relevant marketable threshold amount for that drug) close to that imported by Mr Faber, sentences of between six and nine years were imposed.
The Director referred to the decision in Dunning v State of Tasmania[17] as having some similarities with this matter. It was submitted that that case involved the importation of 398 grams of amphetamine and small quantities of MDMA and cocaine for the purpose of sale by a 21-year-old drug user. A sentence of seven and a half years imprisonment reduced to six years imprisonment on account of the guilty plea was imposed with a non-parole period of three years and six months. The Tasmanian Court of Appeal did not interfere with sentence noting that whilst a sentence of seven and a half years imprisonment after a trial may have been severe, it would not have been manifestly excessive.
[17] [2018] TASCCA 21.
It was pointed out that some of the comparable cases in the schedule involved persons who were mere couriers. It was submitted that it is well‑established that a critical consideration for a sentencing court in drug importation matters to have regard to the role played by the offender. The principal role performed by Mr Faber required, the Director submitted, a significantly higher sentence than that which would be appropriate for a courier. It was submitted that in all of the comparable cases, even those where much smaller quantities were imported, significant non-parole periods were imposed by the Court of Appeal on resentence or were upheld on appeal.
The Director said that it is noteworthy that the 16-month non-parole period fixed in Mr Faber’s case is just over half of the shortest non-parole periods fixed in comparable cases. Non-parole periods of two years and six months were fixed in the sentences imposed in Ludwig v The Queen[18] and Matthews v The Queen.[19] The combination of such a low sentence and low non-parole period imposed on Mr Faber demonstrates a marked departure from the usual sentencing standard, which, the Director argued is strongly indicative of error.
[18] [2015] VSCA 35.
[19] (2014) 44 VR 280.
It was submitted that the sentencing in this matter fails to reflect the principal role played by Mr Faber in the importation of such a large quantity of MDMA. His role is objectively more serious than that of a courier or a lower level intermediary. It was submitted that this is because the offending is aggravated by Mr Faber intending to make a profit for himself by selling the drugs and knowing that his partner in the importation intended to do the same.
The Director submitted that the Judge was right to recognise the rehabilitation that Mr Faber had achieved in the time between the offending and sentence. However, it was submitted that the rehabilitation was limited and it could not properly outweigh the need for general deterrence and punishment. The Director referred to Matthews v The Queen,[20] where the offender imported 185 grams of MDMA (less than half of the amount imported by Mr Faber) and small amounts of other drugs. It was submitted that he cooperated with police and pleaded guilty at the earliest opportunity. He was found to be remorseful, had been drug free since his arrest, and had good prospects of rehabilitation. Despite those features, the Victorian Court of Appeal held that a sentence involving a non-parole period of two years and six months was not manifestly excessive.
[20] (2014) 44 VR 280.
Mr Faber’s submissions
Mr Faber submitted that whilst he was sentenced to an immediate custodial sentence, consideration of anxiety and distress does not disappear in its entirety. He submitted that the principle remains and his liberty should not be put in peril twice, arguing that before Christmas last year he knew what his gaol term was and now he does not. He said that the Director’s application puts his liberty in peril and he faces an uncertain future, something that is not to be underestimated.
Mr Faber acknowledged that the nine cases referred to in the schedule concern sentences greater than his. Mr Faber pointed to four matters which in combination he submitted make his situation distinguishable and unique compared to those cases. He said that none of the cases in the table have all four of these matters. The first is that unlike most of the others sentenced referred to in the schedule, he was sentenced on the basis of a portion of a portion of what was imported would have been sold. Mr Faber gave extensive evidence about his long history of drug use and he submitted that the jury’s verdict must indicate that they thought he and only he was going to use the 64 grams of ketamine the subject of the possession offence. It was submitted that in this context the sentencing Judge had been required to make findings about how much of the 390.8 grams of pure MDMA was going to be sold and how much he would have retained for his use.

It was submitted that the Judge made clear in the sentencing remarks that a portion of the drugs that were to be retained was going to be sold and the same applied to the other man whom Mr Faber gave evidence about. At page 3 of the sentencing remarks, the Judge said:
The inference can be drawn when considering the evidence as a whole in relation to the text messages and other material as well as the quantity of the MDMA imported that you intended sell a portion of the MDMA received and believed that Mr Zacharia intended to do the same with his portion. I sentence you on that basis.
Accordingly, it was submitted that the Director faces a difficulty in that it is not 390.8 grams that was to be sold, it was to be a portion of a portion of that and that is why the cocaine cases in the schedule are of no assistance to the Director.
Mr Faber argued the offending in Matthews v The Queen was far more aggravated than his offending. He acknowledged that Mr Matthews pleaded guilty but submitted that he imported not once, not twice, but 21 times between 2012 and 2018 and when the police attended at his home they found 14 separate packages containing different drugs, all addressed to different customers. So, in addition to the 21 importations, he had 14 packages of drugs ready to go to consumers. The sentencing Judge referred to Mr Matthews’ mobile phone revealing extensive evidence relating to dealing in controlled drugs and that when his Silk Road account was analysed, in the space of over a month and about 10 days, he had made 93 transactions. In the nine months that he had had a membership on Silk Road, he had bought $25,000 worth of drugs. It was submitted that this was trafficking and importing on a scale vastly greater than Mr Faber’s.
It was submitted that the second matter that is quite unique and unusual about Mr Faber’s situation is that the only evidence of his prior selling of any drugs to anyone came from his mobile phone. The extent of his prior dealing amounted to one occasion of selling a $25 bag of cannabis 19 months before this offending and selling two MDMA tablets 14 months before the offending. Counsel for Mr Faber said that in his closing submissions at trial, he submitted to the jury that Mr Faber sold a total of $85 worth of drugs in the 19 months leading up to this importation. It was submitted on appeal that this is incredibly low‑level trafficking and pales into insignificance compared to what Mr Matthews was doing. It was also argued that Mr Faber’s offending did not occur against a background of ongoing commercial trafficking committed in Dunning, Matthews, and Ludwig.
It was acknowledged that there was also evidence of a box of chemicals sufficient to make 55 grams of MDMA located at Mr Faber’s home, but not all chemicals were present. It was submitted that the scales that were found were consistent with someone who uses scales because they do not want to overdose. It was pointed out that there was ketamine on the scales and Mr Faber was acquitted of trafficking in ketamine. It was submitted that there was nothing else to support an ongoing trafficking operation.
The third matter that Mr Faber submitted distinguished him from the other cases in the comparative schedule was his youth. He was 22 at the time of the offending and he was a first offender. It was submitted that Mr Dunning and Mr Ludwig may have received longer sentences because, for example, in Mr Dunning’s case the sentencing Judge had no confidence that he was a man committed to rehabilitating himself.
It was submitted that the Judge’s remarks appealing to the Chief Executive Officer of the Department for Correctional Services can only be viewed as the Judge considering that Mr Faber’s prospects of rehabilitation were very good. It was further contended that whilst the Judge did not say as much, when his sentencing remarks are looked at, his Honour had regard to the testimonials from the people speaking as to his good character, but being aware of his problem with drugs. Mr Faber had submitted to a random onsite drug test after the jury’s verdict but before sentence, which indicated that he was not using drugs. It was pointed out that the Judge accepted that Mr Faber had not suddenly stopped using all drugs upon his arrest, but that he had stopped using almost all other drugs other than cannabis shortly after his arrest and had weaned himself off cannabis during the period he had been on bail. It was submitted that this was significant because the only reason Mr Faber found himself before the District Court was because of his habitual use. He had freed himself of that use in the almost two and a half years that he had been on bail. It was submitted that he was a man who had worked all his adult life, had previously been law abiding, had had one speed dangerous matter in Western Australia, and was dealt with as a first offender. He had freed himself of the very thing that would ever bring him back to court by the time he was sentenced. It was submitted that, along with his youth, these matters gave the Judge tremendous scope for leniency and expression of mercy. It was submitted that there was no better indication of that than in the final plea to the Chief Executive Officer of the Department for Correctional Services.
In response to the Director’s submission that Mr Ludwig had pleaded guilty and that must be a sign of remorse, it was pointed out that Mr Ludwig continued to offend after initial detection and committed the same offence whilst he was on bail. Mr Ludwig had a presence on the Silk Road website, was offering things for sale and the sentencing remarks detail a very extensive and busy trafficking operation involving almost 1,000 tablets of MDMA.
Counsel for Mr Faber made reference to this Court’s decisions in R v Gjoni[21] and R v Faehrmann, Moore & Price-Austin,[22] in which far more extensive material was placed before the Court in terms of the comparative analysis. It was submitted that the Court needs to be very cautious dealing with comparative analysis and that, when analysed, the schedule contained a small sample of three comparative cases of offending to Mr Faber’s. It was contended that the cocaine cases are 100 per cent commercial and whilst Mr Faber acknowledged that he received less than the offenders in Dunning, Matthews, and Ludwig, he argued that he was a better candidate for mercy and he committed an offence which was far more isolated in the sense that it was unaccompanied by a background of commercial drug transactions.
[21] [2012] SASCFC 48.
[22] (2014) 118 SASR 549.
Conclusion
The sentence imposed for the importation offence is at the lower end of the available range. When compared with the cases in the schedule, in particular, the case of Ludwig, I am of the view that the head sentence of three years and nine months for the importation offence is not so low as to be manifestly inadequate.
It is when the non-parole period of 16 months is considered against the total head sentence comprising the concurrent sentences for the importation offence and the possession offence that the question of whether the sentence falls outside the range of sentences available to the sentencing Judge arises. The non-parole period of 16 months is approximately 30 per cent of the resulting head sentence of four years, two months, and 13 days. The Judge found that Mr Faber had engaged in a minor way in the sale of illicit drugs prior to committing the importation offence and that none of the usual indicia of trafficking were present in his home. Mr Faber is a first-time offender. He removed himself from drug use after his arrest and he has good prospects for rehabilitation. It must be acknowledged the quantity of MDMA imported and his principal role in facilitating and taking delivery of it required a significant sentence reflecting the need for personal and general deterrence. Having regard to these matters, I am of the view that, whilst there were matters personal to Mr Faber that may justify a lower non-parole period, the non‑parole period imposed was manifestly inadequate.
In Green v The Queen, French CJ, Crennan and Kiefel JJ said that a primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals which:[23]
… is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.
Their Honours explained that circumstances may combine to produce injustice if a Crown appeal is allowed:[24]
… They includedelay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.
[23] Green v The Queen (2011) 244 CLR 462 at [36].
[24] Green v The Queen (2011) 244 CLR 462 at [43].
In R v Kong, this Court – in considering the exercise of the residual discretion – had regard to the principle of double jeopardy at the permission stage:[25]
This Court must first deal with permission. There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient. Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to which the exercise of a residual discretion to refuse a Crown appeal.
It would be a crushing reversal of fortune for a man who left the dock nine months ago, believing that he would not be taken from his family and would be able to continue his rehabilitation in the community, to now be required to serve a lengthy and immediate custodial sentence.
[25] R v Kong [2013] SASCFC 15 at [102]-[103].
In determining whether to grant the Director permission to appeal, this Court must have regard to circumstances that will produce an injustice if the appeal is allowed. It is over three years since Mr Faber was arrested, he was employed up until he was taken into custody, he removed himself from drug use whilst on bail, and he has served five and a half months of his immediate custodial sentence expecting to be eligible for parole in about 10 months or to be considered for early release on home detention pursuant to s 37A of the Correctional Services Act. These matters must be considered by the Court in the exercise of its residual discretion.
I acknowledge the public policy considerations for granting permission to appeal. However, I am not satisfied that these considerations outweigh the countervailing public interest in protecting persons from double jeopardy.
I would refuse permission to appeal.
PARKER J: I would refuse permission to appeal for the reasons given by Bampton J.
LIVESEY J: I too would refuse permission to appeal and agree with Bampton J.