R v Ismunandar and Siregar

[2002] NSWCCA 477

Reported Decision: (2002) 136 A Crim R 206

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Ismunandar and Siregar [2002] NSWCCA 477
FILE NUMBER(S):	CCA 60122/01; 60082/01
HEARING DATE(S):	10 December 2001 11 December 2001
JUDGMENT DATE:	5 December 2002
PARTIES :	Regina v Sidiki Ismunandar Regina v Saud Siregar
JUDGMENT OF:	Heydon JA; Sully J; Levine J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0375; 99/11/0371
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

COUNSEL :	E. Fullerton SC - Crown D. Dalton - Appellants
SOLICITORS:	Commonwealth DPP Freeman Solicitors - Ismunandar George Sten & Co - Siregar
CATCHWORDS:	Criminal law - sentence - massive heroin importation - one of five co-ffenders appeals against sentence and is dealt with separately - two other co-offenders claim a reduction in their sentences by reason of parity. - Held : no reduction justified
CASES CITED:	R v Chen [2002] NSWCCA 174 R v Mandagi [2002] NSWCCA 57 R v Diamond (NSWCCA, unreported, 18/2/93] Lowe v R (1984) 154 CLR 606 R v Gallagher (1991) 53 A Crim R 248 Postiglione v R (1997) 189 CLR 295 R v Rexhaj (NSWCCA, unreported, 29/2/96)
DECISION:	Appeals against sentence granted; appeals dismissed.

60122 OF 2001
60082 OF 2001

HEYDON JA
SULLY J
LEVINE J

Thursday 5 December 2002

REGINA v SIDIKI ISMUNANDAR

REGINA v SAUD SIREGAR

Judgment

1 THE COURT: These two applications for leave to appeal against sentence should be granted. The substantive appeals against sentence should be dismissed.

2 The applicants seek leave to appeal against the sentences imposed by his Honour Judge Shadbolt in the District Court on 16 February 2001. Each had been found guilty of being knowingly concerned in the importation into Australia of prohibited imports to which s233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a commercial quantity of heroin, being not less than the commercial quantity applicable to heroin. The amount of heroin involved was found to weigh 389 kilograms and to contain 252 kilograms of pure heroin with an estimated street value of $620 million.

3 Each applicant was sentenced to life imprisonment with a non-parole period of 20 years. The applicants’ conviction appeals (and those of co-offenders Chen and Lau) were dismissed by this Court on 11 June 2002: [2002] NSWCCA 174, (the Chen appeal). The appellants Chen and Lau were granted leave to appeal against their life sentences and the appeals were dismissed.

4 At the conclusion of the hearing of the Chen appeal, counsel for Siregar submitted that if the sentence of Mandagi (the captain) was interfered with, there would “seem to be a basis for an application” that Siregar’s sentence should be reduced. The Mandagi appeal had been argued but not then decided. Counsel for Ismunandar appeared to want his client’s leave application not to be dealt with until after the conviction appeal had been decided: see Chen at para 290. The present applications were stood over to the next Registrar’s call over. The judgment of this Court in Mandagi was delivered on 11 March 2002: [2002] NSWCCA 57 (Dowd, Greg James JJ and Smart AJ). Mandagi’s conviction appeal was dismissed; his sentence was reduced from life with a non-parole period of 25 years to 27 years with a non-parole period of 19 years.

5 The current applications for leave have been prosecuted, in accordance with the parties’ wishes, by way of written submissions only.

6 The factual background to the importation is set out in the Chen judgment at paragraphs [5] – [6]. The particular roles of Siregar and Ismunandar are set out at paragraphs [135] – [150] and [231] – [242] of that judgment. It is to be observed that in its written submissions the Crown notes that this importation is still considered to be the largest detected by the authorities to date.

7 As was stated in Chen (para [248]), the principal issue in the trial of all offenders was the question of knowledge. The submissions for each applicant are in identical terms and it is appropriate at the outset to set out what the learned sentencing Judge said in relation to the subject.

8 His Honour summarised the Crown case against Ismunandar as to knowledge as follows:

“(a) That Ismunandar was recruited by drug smugglers for this enterprise.

(b) He was the Chief Officer, or Mate, of the ship.

(c) He had been waiting for six weeks for the Uniana to sail.

(d) He played his part in falsifying the log so that it would show a route from Hong Kong harbour, where it had never been, to Manila harbour, where it was never to go, and thence to New Zealand.

(e) His duties, that of overseeing the cargo, if any, the checking of the equipment and the inspection of the water tank were apparently ignored.

(f) He was responsible in part for the course which the ship actually took as shown on the charts.

(g) He played his part on deck, launching and retrieving the speedboat.
He gave evidence in which he maintained that he had no idea that the ship was carrying heroin. What he had been told was that they were to sail to the Andaman Sea and there pick up a rich Chinese with his belongings. He had not seen the speedboat when he came on board because he had been told by the captain that there was no cargo.
He had not checked equipment because he had been told that it was unnecessary and he had failed to fill in the log on each of the two watches a day that he had stood because he had been so directed by the captain. He had participated in falsifying the log at the captain’s direction. This evidence must have been rejected by the jury. The jury must have been left with no reasonable doubt and Ismunandar was convicted .”

9 We add what his Honour said as to the subjective features of Ismunandar. His Honour found him to be:

“…a person of good character whose elderly parents live in Sulawesi, Indonesia, and have recently lost all their possessions in riots occurring in the town of Poso. He is thirty-two years of age. It appears that he supports members of his family. He is married. He attended South Sulawesi maritime school and has formal qualifications”.

10 His Honour reviewed the case against Siregar as to knowledge as follows:

“(a) He was in charge of repairs on the Uniana in preparation for a long sea voyage.

(b) He was present when the derrick was lengthened.

(c) He claimed no knowledge of the destination of the ship or the duration of the voyage which would have made it impossible for him to ascertain the amount of fuel required.

(d) There was no engine room log until one was commenced on 14 September, the approximate date when the actual course of the Uniana intersected the falsified course from Hong Kong.

(e) His denial that he did not know of the secret compartment was impossible to reconcile with his position as chief engineer on a small ship when this compartment lay between fuel tanks and water tanks.

(f) He signed a false receipt for the fuel taken on at sea, south of Singapore.

(g) He is seen as one of the three figures on Grants Beach, each of whom was pulling bags from the surf and taking them up the beach.

(h) He was the engineer responsible for the maintenance of the speedboat engine, its repair at sea in the Andaman Sea, the testing on two occasions off Sulawesi, and he accompanied the heroin in the speedboat to Grants Beach.
He gave evidence in which he said that he knew nothing of heroin and the Golden Triangle and was merely carrying out the instructions of his captain and did not even know the destination of the vessel. Under cross-examination it was clear he did know where the ship was going. He had no explanation for his signing of the false receipts for fuel or his possession of one of the Prada bags identical to those used for the repacking of the heroin. Further, his denial of being in the hold the night the heroin was repacked was in sharp conflict with Chan’s evidence that he was down there attending to the motor boat.
The jury must have rejected the prisoner’s evidence and accepted the Crown evidence and have been satisfied beyond reasonable doubt as to his knowledge”.

11 His Honour’s observations as to the subjective component in relation to Siregar related to two reports having been tendered in relation to the applicant’s behaviour and his work in prison, both of which were positive. His Honour noted that Siregar had formal qualifications as a ship’s engineer.

12 The emphasis in the submissions both for the applicants and the Crown is on the issue of parity. In this regard what the learned sentencing Judge said was as follows:

“ In respect of Siregar and Ismunandar, it has been submitted by counsel that the sentences imposed on them should be less than those imposed upon the captain, Mandagi. Insofar that this submission is based upon a view that sentences should decrease in accordance with the prisoners’ nautical rank, it is rejected. There is however, evidence that Mandagi, whilst in the Andaman Sea, became restless at the delay and the danger which that created and threatened to abandon the whole project. This could be regarded as evidence of his capacity to make independent decisions and to voluntarily withdraw from the criminal enterprise. There is no similar evidence in respect of the chief officer and the chief engineer, who would, as a consequence, have to be regarded as subordinates in their roles both nautical and criminal and in consequence their sentences will be less than that imposed upon Mandagi to reflect their inequality”.

13 Thus, the Court is in a position to set out the following table of sentences imposed upon all the offenders dealt with by Shadbolt DCJ prior to any appeals in relation thereto. The information is gained from the current applications, the Chen judgment and the matters referred to in the judgment in the Mandagi appeal.

Chen: life
Lau: life
Mandagi: life, non-parole period 25 years (captain) - reduced to 27 years, non-parole period 19 years.
Ismunandar: life, non-parole period 20 years (chief officer)
Siregar: life, non-parole period 20 years (engineer)
Chan: (pleaded guilty) 13 years, non-parole period 10 years.

14 By reason of the part played in the submissions by the approach taken by the Bench in Mandagi on the issue of parity as between Mandagi and Chan and thus, in the end, between these present applicants and Mandagi, it is necessary to set out what Smart AJ said in his judgment on this issue:

[89] On 14 October 1999, consequent upon a plea of guilty, Chi Keung Chan was sentenced to thirteen years imprisonment with a non-parole period of ten years. The judge took as a starting point, having regard to the objective seriousness of the offence, a sentence of thirty-six years imprisonment. He continued:

"No remissions are in force in New South Wales and in accordance with the provisions of section 16G the sentence is reduced by ten years to one of twenty six years. I would set a non-parole period of twenty years. Applying the discount of ten per cent for past assistance and plea and forty per cent for future assistance particularly in regard to the undertaking, which he has given the Crown, the sentence imposed is one of thirteen years imprisonment and a non-parole period of ten years."

The judge intimated that he would have imposed a sentence of twenty-three years and six months with a non-parole period of eighteen years but for the future assistance.
[90] In sentencing Chan, the judge after reviewing Chan's change of stories from that given on 14 October 1998 to that given in March 1999, said:
" A combination of these two accounts supports the following findings of fact. (1) The prisoner was employed for one journey. (2) He was to be paid in a sum certain for his part in the enterprise. (3) He brought to the enterprise special skills as a speed boat driver and navigator. (4) He purchased items such as wet suits and goggles. (5) He brought on board the co-ordinates for the rendezvous at the Thai/Burma border. A piece of paper with these co-ordinates on them he had received from Fei Lo Nam. (6) He was never without money because he appeared to have outlaid cash for fares, goods and equipment purchased and was reimbursed 10,000 Hong Kong dollars. (7) He was required to negotiate with the captain who was becoming impatient at the delay at the rendezvous at the Thai/Burma border. (8) He reported the safe arrival of the cargo but apparently was to take orders from Man Chai, who had come on board with the packages, as to their proper stowing. It was clear in the conversations that Fei Lo Nam knew the layout of the ship precisely. (9) He took instructions from Fei Lo Nam and kept him informed."
And:
"It is difficult to determine with precision his position in the hierarchy of this enterprise, firstly, because he has to be believed and this is difficult and secondly, because the relationship between the captain and those who either owned, purchased or transported the heroin is not clear."

[91] After weighing a number of factors the judge rejected the Crown contention that Chan was a delegate of the owners while the heroin was on board and determined to regard Chan:
"As a specialist employed for one trip only with reporting duties but with no greater decision making role than the performance of his duties to load and unload the heroin ..."
[92] Chan was an experienced Chinese fisherman who had worked as a trawler captain. He said that he was a very experienced sailor and navigator. He was engaged as an accomplished speedboat driver and to perform other tasks in what he knew was an illegal enterprise. The judge rejected the submission that any calculation of sentence should have as its starting point life imprisonment and that any discount could be used in the calculation of a non-parole period. The judge held that the importation of such a large quantity of heroin by the sophisticated and well organised techniques employed warranted life imprisonment. He also accepted Chan's submission that "his position was not, of those amenable to the criminal law of the Commonwealth the most serious." The Judge added:

"It is necessary to look to those others amenable to the criminal law in this country to determine those most deeply involved and giving the prisoner the benefit of the doubt, he is not that person or one of those persons."

[93] The materials before the judge included a statement by Chan on 19 March 1999. Allowing for some or much of it not being true it reveals that in April 1998 Chan sought work from Fei Lo Nam (Nam) knowing that it may involve smuggling people. Chan said that Nam, whose headquarters were in mainland China, told him that he had a vacancy for a speedboat driver and that he needed someone to take a very important person and his possessions to Australia. Chan was told:

"...you will be taking one person and some precious luggage from a small boat to a big boat and then later take them to Australia. You will be paid $300,000 and I can give you $50,000 now."


Nam did so and said that he could give Chan another fifty thousand Hong Kong dollars if Chan needed it. Nam inquired if Chan spoke Mandarin. Chan recommended Ah Lung.

[94] Nam stated that he would contact Chan when there were further developments. Nam instructed Chan to buy a mobile telephone for himself and one for Nam and some phone cards including sim cards in another name. Chan was told never to purchase anything in his own name. Chan caused the cards and the mobile phones to be purchased, advised Nam, who arranged for them to be collected and Chan to be reimbursed.

[95] Chan stated that in early June 1998 Nam instructed him to go to Australia to look at some beaches to see if they were suitable to get a speedboat ashore. He would be met at Sydney Airport. Chan arranged for a visa and Nam caused arrangements to be made for airline tickets. Chan collected and paid for them. They included one night's accommodation in Sydney. Chan flew from Hong Kong to Sydney. Fei Chai met him, took him to his hotel and the following morning drove him to the Port Macquarie area. Fei Chai took Chan to three separate beaches. Chan considered the first beach he saw to be the most suitable and another one to be suitable. Fei Chai took a recording from a hand held Global Positioning System (GPS) and made notes. They stayed at a local motel. Fei Chai received calls on his mobile telephone (up to 3 or 4 each hour). They returned to the beach which Chan had nominated as most suitable on two more occasions, one at night and one during the day and assessed if the conditions were any different and to observe high and low tides. Fei Chai paid for everything in cash.

[96] On his return to Hong Kong Chan reported to Nam, who told him that the job would be done next month, that Chan's job was to drive the speedboat and that Ah Lung was to take care of the satellite telephone on the boat. Nam undertook to organise some special travel permits for Chan and Ah Lung and Chan gave Nam a passport photograph. Nam advised that they would be on the boat for two months and requested Chan to obtain medicines for the trip to take on the boat. Nam gave Chan a further fifty thousand Hong Kong dollars.

[97] About 12 August 1998 Nam instructed Chan to buy three wetsuits, three life jackets, three pairs of goggles and some torches for the trip. He did so, except that he could only purchase two pairs of goggles. Nam, Ah Lung and Chan had dinner together that night. Nam gave a new contact pager and mobile telephone number for himself to Chan and instructed him:

"Give these co-ordinates and frequencies to the interpreter when you get on the boat, he will need to give them to the ship’s captain. … when you get to these co-ordinates call ‘Man Chai’ on the radio and someone will respond."


[98] Nam handed Chan a piece of paper containing all the details including the number of the satellite telephone on board the ship. Pursuant to instructions from Nam, Chan and Ah Lung put the 3 diving suites, 2 pairs of goggles, diving knife, 2 non-slip shoes, a mobile GPS, medical supplies, food, magazines and Chan’s personal mobile telephone on board the Uniana on the morning of 15 August 1998. Chan handed the pieces of paper given to him by Nam containing the radio frequencies and shipping co-ordinates to Ah Mong the Indonesian/Mandarin interpreter on board who handed such papers to the appellant (Mandagi). He later returned the pieces of paper. Chan and Ah Lung returned to Aberdeen, Hong Kong and had lunch. Nam instructed them to rejoin the Uniana and they did so. It sailed about 5.00 pm.

[99] During the first 14 days of the trip Nam telephoned the Uniana everyday and enquired about its position. Either Ah Lung or Chan took these telephone calls. In the instances that Chan spoke to Nam, Chan was able to tell him of the boat’s current position after studying the GPS and sometimes after consulting the appellant. Chan said that he received a telephone call from Nam that they would soon be meeting the other boat and to get ready to set down the speedboat. Chan said that he relayed this information to Ah Lung and told him to tell the appellant to make ready with the speedboat. The appellant became angry and threatened to leave if nothing happened that night. Chan said that he would let the boss (Nam) know. A short time later contact was made between the appellant, Ah Lung and a further vessel by way of a two-way radio. Thereafter the transfer of the heroin and Man Chai from that further vessel to the Uniana using the speedboat occurred. Not long after that was completed Nam checked with Chan via the satellite telephone that the "parcels" were on board. Chan was told:

"...Take the black bags and the plastic bags out of your cabin and take them to Man Chai. Go and help Man Chai he knows what to do with them."

Chan did as Nam instructed. The heroin was removed from the speedboat, the blocks of heroin being put in sealed plastic bags and packed in black carry bags.

[100] At the trial of the appellant the evidence in chief of Chan broadly followed the terms of his statement of 19 March 1999 but much more detail was led. In the cross-examination Chan stated that when he saw the rice bags being thrown into the speedboat he knew for the first time that he was involved in prohibited drugs. He said that at his point he knew that he had been tricked. He was unable to discuss the position with Man Chai, the appellant or the crew because had did not know where they stood. Chan was cross-examined about his statement of 10 December 1999 in which he stated that during the first conversation with Nam he had said "One person for so many belongings." Chan said that the original version should be "one person with belongings." Chan said that when he enquired as to what the personal belonging of the escapee were, Nam replied "Of course valuable things. This person is escaping. Do you think he would bring rubbish along." (T113). Chan said that once the rice sacks were brought on board he looked for any chance to escape but there was no chance. He continued on with the enterprise because of fear of reprisals to himself and his family if he tried to withdraw.

[101] After some cross-examination of Chan to the effect that he went on board the Uniana on 14 August 1998 and that his statement that he was in China on that day was incorrect, Chan appealed to the judge and sought an assurance that whatever he said in court would not subject him to being charged. This led to considerable discussion between the judge and counsel and the adjournment of the hearing for over a day and thereafter the interposition of other evidence. Three days after Chan had appealed to the judge he returned to the witness box. In the meantime he had given another statement to the police. The Crown led further evidence in chief.

[102] Chan gave evidence of events he had previously withheld. Chan stated that he first met the captain and crew, except for the Chief Engineer, on 15 July 1998 on the On Shun. He went on board on that occasion with Nam and another worker. Nam spoke with the appellant. Chan said that he went out to the On Shun on two further occasions but did not board it, namely, once to deliver some cigarettes to the crew and secondly to take some food to the crew.

[103] Chan said that on 10 and 11 August 1998 he boarded the Uniana with a technician who repaired the derrick with his assistance. Nam told him (Chan) on the morning of 14 August 1998 that the Uniana was gong to be used for the enterprise and house the speedboat.

[104] Chan said that on 14 August 1998 Nam, a man called Dai Gie and he went out to the On Shun. Nam spoke with the appellant and explained that the crew members of the other ship (Uniana) had a dispute over wages and expressed the hope that the crew on the On Shun would transfer to the other ship. The appellant consulted with the crew. According to Chan, the appellant replied that there would be no problem in transferring to the other ship except for the Chief Engineer and a couple of other persons. However, all wages to date had to be paid. Nam paid them their wages. Chan said that while the appellant promised to be the captain of the proposed trip, he (Chan) did not know how much the appellant knew.

[105] After Nam and the appellant spoke further it was said that they had to change ship in the afternoon and that all crew members should pack their things. The appellant gave some instructions to the second officer who selected some maps and rolled them up. The crew from the Uniana transferred to the On Shun. The appellant and the crew from the On Shun then transferred to the Uniana. Chan said that he, Nam and Dai Gie transferred to the Uniana.

[106] In further cross-examination Chan agreed that in his evidence on his sentencing hearing he had said that he had told the police one hundred per cent truth. He also agreed that he had said he had told the police everything he knew. Chan said that he was hesitant about disclosing what was in his last statement because he was worried about the crew facing a very harsh future.

[107] Chan claimed not to be sure that the area in which he slept was the captain’s quarters in the Uniana. He agreed that there was a satellite telephone adjacent to his bunk.

[108] A review of the material demonstrates that Chan was one of Nam’s lieutenants and that he was responsible for many of the preparatory steps of the intended voyage. He was also responsible for ensuring that the "belongings" of the escapee were safely transferred at sea at night by torchlight from the vessel that met them in the Andaman Sea to the speedboat and thence to the Uniana. Chan’s reconnaissance decisions in Australia coupled with his other roles prior to and after 15 August 1998 lead to the conclusion that his measure of responsibility and culpability was at least equal to that of the appellant. When the judge sentenced Chan, the judge was not aware of all the facts and sentenced him on the basis of him having less responsibility than he actually had. This was in part due to the appellant not disclosing some facts to the judge. It happens not infrequently that, because there is no one to test adequately the story of a co-accused on a plea of guilty, all the relevant facts do not emerge and the person being sentenced receives a lighter sentence than he should. This creates problems when other offenders are being sentenced and a fuller factual picture emerges.

[109] The appellant submitted that he was less culpable objectively than Chan for these reasons. Unlike the appellant, Chan was in direct and regular contact with those higher in the organisation both prior to and for the duration of the voyage. He was, even on his own account, benefiting financially far more than the appellant. Chan had received $HK100,000 and was to receive another SHK200,000 making a total of $HK300,000. There was evidence that the appellant had received $HK50,000. There was also his monthly salary of about $HK12,000 per month for some six months plus one month’s extra salary. Chan was going to make about three times the remuneration of the appellant. The difference in financial reward is eloquent of Chan’s standing and importance to Nam’s drug trafficking activities. Chan was involved in handling the heroin on board Uniana whereas the appellant was not involved and was excluded. The appellant also relied on the other aspects of Chan’s role including the recruitment of Ah Lung.

[110] The appellant pointed out that the judge did not find that the appellant was more deeply involved in the enterprise than Chan. Such a finding would have been untenable. The appellant submitted that if the offence of which he was convicted was fairly able to be described as "worst category case" then Chan’s offence was even more firmly entrenched within that category and he should not have received a s.16G adjustment. The appellant stressed the difference between factors mitigating the seriousness of the crime and those mitigating the seriousness of the penalty.

[111] The crime committed by the appellant was a very grave one as was that committed by Chan. Both were involved over a lengthy period in the intended importation. Both the appellant and Chan had a propensity to lie and this makes sentencing more difficult. Both tried to play down their roles. Their roles were different but Chan’s criminality and the appellant’s criminality were about equal. Both were in difficult financial circumstances and both needed work. The financial rewards for Chan were to be much greater than those of the appellant. Even allowing for Chan’s plea of guilty and his assistance to the authorities the disparity between the sentences imposed upon Chan and the appellant is marked and gives rise to a justifiable sense of grievance on the appellant’s part . I have had regard to all the matters required under the Crimes Act 1914 (Cth) . I have regard to the judge’s starting point and mitigation calculations when sentencing Chan. After the s.16G adjustment and absent the mitigation of sentence for plea and assistance the judge would have imposed a sentence of 26 years with a non-parole period of 20 years on Chan. To achieve a reasonable parity with Chan’s sentence and taking into account the high objective gravity of the appellant’s offence the starting point for the appellant would be a sentence of 40 years. I regard this as the lowest permissible starting point. An adjustment under s.16G of just under one-third should be made, namely, 13 years. This reduces the sentence to 27 years. A lesser sentence would be incorrect. There should be a non-parole period of 19 years. This is not within the usual range of 60 to 66.66 per cent suggested in Bernier (1998) 102 A Crim R 44, but a little above it. However, in view of the circumstances of this case a lesser non-parole period would not sufficiently reflect the appellant’s criminality and the consequent minimum period which he must serve before being eligible for parole”. (Emphasis added)

15 Finally, to provide an ample context in which to examine the submissions, it is necessary to set out what this Bench said in the Chen appeal with respect to the decision of the Court in Mandagi:

“[288] We do not consider either the outcome or reasons therefor as enunciated by Smart AJ in Mandagi have any relevance to or effect upon our approach to our determination of the present applications for leave. Nor do we consider it either necessary or appropriate to remark upon the correctness or otherwise of the decision of the Court in Mandagi . This Court is concerned with applications for leave to appeal circumscribed by the ambit of the grounds thereof and submissions made in support as referred to above. None of these included any question of parity. That is not surprising in view of the fact that whatever significance the respective roles and relationships of crew members such as Mandagi, Siregar and Ismunandar might have from the sentencing point of view, Lau and Chen are in a wholly different category.

[289] The principles in relation to parity are well known: Lowe v The Queen (1984) 154 CLR 606: Postiglione v The Queen (1977) 189 CLR 295, subsequent Court of Criminal Appeal (1997) 98 A Crim R 134. A further principle in this context of course is the entitlement in the Court of Criminal Appeal to reduce an otherwise appropriate sentence in order to avoid disparity engendering a justifiable sense of grievance, that entitlement being a discretionary one. The exercise of that discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Regina v Diamond (NSW CCA, unreported, 18 February 1993 per Hunt CJ at CL at 5-6, with whom James J agreed, Smart J – as he then was- dissenting). The application, if any, of such principles in the light of what the Court chose to decide in Mandagi is, in our view, academic”.

16 The applicants submitted that each sentence, in the light of the learned sentencing Judge’s approach set out above, and what was said by the Court in Mandagi, was manifestly excessive upon the discrete question of parity, and that by reference to the sentences imposed on Chan and ultimately Mandagi, particularly given Shadbolt DCJ’s distinction as to the applicants’ lesser level of criminality with respect to Mandagi, the disparity is such as to engender a justifiable sense of grievance. The observations made by this Court in Chen as to the principle in Diamond (paragraph 289, cited above) can be discretely viewed in relation to the greater levels of criminality of Chen and Lau with which this Court was concerned vis-à-vis Mandagi. Reference is made in the submissions to what we observed in Chen paragraph [288] above.

17 It is ultimately submitted that given the considerably lesser role, and thus level of criminality, of each applicant in relation to both Mandagi and Chan, and the subjective features relevant to each applicant, if the sentence is reduced in each case, at least on a relative basis by the difference employed by Shadbolt DCJ, proportionate to the sentence ultimately imposed by the Court in Mandagi, the resultant sentence (in the order of 22 years with a non-parole period of 15 years) would not be one that would be an affront to the proper administration of justice.

18 The Crown, having referred to what this Court said in Chen at paragraphs [287] - [289], argues that whilst the applicants performed different roles as compared to one another, by reason of Siregar’s specialist skills as an engineer and Ismunandar’s seniority second only to Captain Mandagi, and also their roles compared with that of Mandagi, their respective criminality is indistinguishable and “any adjustment to their sentence should be marginal”. We take that to mean, first that no distinction should be drawn between the applicants; and secondly, (as is subsequently developed), any resentencing should itself be marginal as between these applicants and Mandagi as resentenced.

19 The Crown cites the following passage from the judgment of Dawson J Lowe v R (1984) 154 CLR 606 at 623:

“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence…”

20 The Crown does not concede, (as clearly the applicants appear to be asserting in their written submissions), that the sentences imposed were “manifestly excessive”. That the Crown does not so concede is not surprising. That the applicants now so assert may be considered surprising if that proposition is viewed in isolation. That is, the applicants expressly reserved their position in relation to sentence to abide by the outcome of the appeal in Mandagi. What the Crown does concede, however, is that the applicants would have a legitimate sense of grievance should there be no reduction of their sentences following this Court’s resentence of Mandagi. The Crown acknowledges in its submissions that in the light of the judgment in Mandagi the sentences of life imprisonment imposed upon each applicant cannot be sustained, and that by necessity a fresh non-parole period should be imposed. It is submitted, however, that conformably with the principles stated in Regina v Gallagher (1991) 53 A Crim R 248 at 260 per Gleeson CJ, care is to be taken to ensure that the ultimate sentencing result produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender, that “even understood in the light of the considerations of policy which support the principles [scil. of parity]” it constitutes an affront to community standards. The Crown submits that the posited reduction referred to in the written submissions for the applicants would result in an inadequate sentence and thus an affront to the administration of justice and to community standards.

21 Not surprisingly, the position taken by the Crown provoked a submission in reply that what the Crown suggested ignores the proper basis for the learned sentencing Judge’s finding regarding the need for the differential in the first instance; and, it is said, ignores also the appropriate basis for the reduced sentence by the Court in Mandagi and “perhaps more importantly” the sentence in Chan’s case, which was far lower than would be the applicant’s sentences adjusted by reference to the same differential as contended. The applicants submit that there is no affront in any respect when an appropriate reduction upon proper principles is made to such sentences. This was the case, it is contended, in Chan’s matter (there being no Crown appeal and presumably no offence to the principle referred to in Gallagher, referred to above). It is contended that the Court in Mandagi applied the principle: see Smart AJ at paragraph [111] cited above.

22 It is argued that Chan’s sentence, whilst much lower than that contended for by the present applicants, is that of a co-offender involving the same amount of drugs and a higher level of criminality than the applicants. The sentence imposed upon Chan does not constitute an “affront” because it is explicable by reference to the discounts. The Crown did not appeal against the inadequacy of Chan’s sentence. The applicants contend that similarly the Crown makes no criticism of the sentence imposed by the Court of Criminal Appeal in Mandagi. The submissions then go on to say:

“Indeed, for the Crown to do so, … would itself risk the undermining of the proper administration of justice by seeking a significantly different approach to appropriate sentencing for co-offenders by differently constituted Benches of this Court, as to undermine the public confidence in the consistency of the senior Court of this State”.

23 In R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported) Hunt CJ at CL (James J concurring) said of the facts before that Court:

“The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one ….. . In my opinion, that stage has well and truly been passed in the present case, and a reduction of the applicant’s sentence to a community service order would similarly be described as an affront to the proper administration of justice. The sentence imposed by Judge Flannery was, as I have said, appropriate and not excessive. That imposed by the magistrate was, as I have also said, irresponsible. The disparity between them may give rise to a sense of grievance on the part of the applicant, but it was not a justifiable one.”

24 The ultimate question in this case is whether this Court should reduce the sentences on Siregar and Ismunandar on the ground that they create disparity engendering a justifiable sense of grievance. The disparity arises from the fact that the sentence of Mandagi, the captain of the Uniana, has been reduced to 27 years with a non-parole period of 19 years from a sentence of life imprisonment with a non-parole period of 25 years. This contrasts with the sentences of life with a non-parole period of 20 years for Ismunandar, the chief officer and the second in command after Mandagi, and Siregar, the engineer. The sentencing Judge achieved, it is agreed on all sides, an appropriate balance in the sentences reflecting the greater criminality of Mandagi and the lesser criminality of Ismunandar and Siregar. Let it be assumed that if the sentences were not changed, Ismunandar and Siregar would experience a sense of grievance. The only basis on which that sense of grievance could be regarded as a legitimate one is that if the sentences of Ismandar and Siregar were not changed, the sentencing Judge’s balance would be disturbed.

25 The narrow question for decision is whether to substitute for the sentencing Judge’s sentences the sentences requested by the appellants would be to select sentences so gravely inadequate that any sense of grievance in Ismunandar and Siregar which might be engendered cannot be regarded as legitimate, so that using this means of removing the disparity between the sentences left after the reduction in Mandagi’s appeal would be an affront to the proper administration of justice.

26 The adoption of the sentences proposed by the appellants falls far enough below what is adequate, to ensure that any sense of grievance in Ismunandar and Siregar would not be legitimate. The reasons are as follows.

27 First, and with respect to the members of the Court of Criminal Appeal who decided Mandagi, we are of the opinion that an undue emphasis was placed upon different objective features in relation to Chan (see paragraph [109] for example), especially in relation to financial rewards; and to some extent based upon subjective considerations; notwithstanding that, though their roles were different, Chan’s criminality and the criminality of the applicants were about equal in a crime that was identified by that Bench as “a very grave one”. There is the further consideration that despite the difference in the role of Mandagi compared to Chan, the importation could not have taken place without Mandagi’s skill as captain of the vessel. The Chans and the Chens and the Laus and the Nams of this world can get nowhere without the willingness of technicians to lend their special expertise to criminal enterprises, and they would have got nowhere in this particular importation without Mandagi’s willingness to lend his special expertise to this criminal enterprise. This causes such matters as the differences between Chan and Mandagi in relation to remuneration, in relation to recruitment, and in relation to handling the heroin on board the vessel, to recede in significance.

28 Secondly, the crimes which the three officers (Mandagi, Siregar and Ismunandar) committed with Chan, Chen and Lau, were extremely serious crimes. To have been involved at the highest levels in the largest drug importation ever detected in Australia calls for the most serious punishment on the scale which Parliament has provided for. The sentence fixed by Parliament as the maximum is life imprisonment.

29 Thirdly, not only was the sentencing Judge extremely experienced, but he also had a unique and very close familiarity with the facts of the various crimes, having presided over the complex and difficult trials leading to the various convictions.

30 Fourthly, while the characterisation by the sentencing Judge of the different roles of the different offenders is legitimate, it must be remembered that the importation could not have been carried out without the aid of Siregar and Ismunandar any more than it could have been carried out without the aid of Mandagi. The importation could not have taken place without successful negotiation by the Uniana of hazardous journeys from Hong Kong to the Andaman Sea, and from the Andaman Sea to Port Macquarie, and those journeys could not have been completed without the professional skill and experience of Siregar and Ismunandar.

31 Fifthly, the argument for reducing the sentences on Siregar and Ismunandar depends not only on this Court leaving out of account the admittedly correct reasoning of the sentencing Judge in relation to Chen and Lau, and the admittedly correct reasoning of the sentencing Judge in relation to Siregar and Ismunandar, but on this Court taking into account the erroneous interference by the Court of Criminal Appeal with the sentence flowing from the sentencing Judge’s correct reasoning in relation to Mandagi. One reason why the Court of Criminal Appeal interfered in relation to Mandagi’s sentence was that it saw the sentencing Judge as having sentenced Chan on a false basis:

“When the judge sentenced Chan, the judge was not aware of all the facts and sentenced him on the basis of him having less responsibility than he actually did. This was in part due to the appellant not disclosing some facts to the judge. It happens not infrequently that, because there is no-one to test adequately the story of a co-accused on a plea of guilty, all the relevant facts do not emerge and the person being sentenced receives a lighter sentence than he should. This creates problems when other offenders are being sentenced and a fuller factual picture emerges.”

32 The result is that Chan was, through no fault of the sentencing Judge, erroneously sentenced too lightly; in consequence the Court of Criminal Appeal decided to reduce Mandagi’s sentence, because it saw him as “less culpable objectively”. It is true that to allow an appeal based on parity is always “to compound the error” inherent in the lower disparate sentence: Lowe v R (1984) 154 CLR 606 at 623 per Dawson J. The law puts up with this difficulty in conventional parity cases. But to take the step of reducing the sentences on Siregar and Ismunandar so as to bring them into line with that of Mandagi, which was itself erroneous, in part because of an innocent error in relation to Chan, is to take a step so much based on a repetition of error that the resultant sentence is an affront to the proper administration of justice, and any sense of grievance arising from the maintenance of the existing sentences would not be justifiable.

33 The next difficulty which would flow from allowing the appeals arises as follows. Part of the argument advanced on behalf of each of the present applicants was based upon what were said to be “concessions” made by the Crown in connection with the present applications. Those “concessions” operated, however, within a very narrow margin. The Crown resisted re-sentencing along the lines advocated by the appellants. The Crown said:

“It is submitted that the applicants’ submission, that the sentences be reduced in accordance with the ’20 percent’ differential applied by the trial judge (between Mandagi and the present applicants), would result in an inadequate sentence and ‘… an affront to the proper administration of justice’ and ‘… an affront to community standards’.”

34 The quotations are from R v Gallagher (1991) 53 A Crim R 248 at 260. On the other hand, the Crown did say:

“It is submitted that while the applicants performed different roles as compared to one another, by reason of Siregar’s specialist skills as an engineer and Ismunandar’s seniority second only to captain Mandagi … and also their roles as compared to that of captain Mandagi, their respective criminality is indistinguishable and any adjustment to their sentence should be marginal …
The Crown does not concede that the sentences imposed were manifestly excessive. It is conceded, however, that the applicants would have a legitimate sense of grievance should there be no reduction of their sentences following this court’s re-sentence of Mandagi …. .The Crown acknowledges that, in the light of the judgment in Mandagi , the sentences of life imprisonment against each applicant cannot be sustained, and that by necessity a fresh non-parole period should be imposed.”

35 The Crown criticism of the appellants’ proposal is entirely reasonable: the sentences favoured by the appellants are much lighter than those of the sentencing Judge. This can be illustrated by reference to Siregar. His sentence runs from 14 October 1998. In 1998 he was aged about 29. Assuming that he lives until the age of 70, the life sentence given by the sentencing Judge will entail imprisonment for 41 years, and the 20 year non-parole period would see him released at the age of 49. On the other hand, a 22 year sentence would see him released at the age of 51, and a 15 year non-parole period would see him released at the age of 44. There is a very large difference in the head sentences of 19 years, and the 5 year reduction in the non-parole period is also quite large.

36 The concession by the Crown that there should be a “marginal” adjustment is certainly open to the criticism that changes in sentences which are only marginal involve impermissible tinkering in defiance of conventional sentencing principles. The essential difficulty with the Crown “concession” is that this Court is not bound by any Crown concession. It is not obliged to act on any Crown concession which it does not consider to be sound: Postiglione v R (1997) 189 CLR 295 at 310 per McHugh J. While in that case Kirby J said at 341-342 that Crown support for grievances which an appellant might experience, though not determinative, “cannot be put entirely out of account”, he was speaking in a case where the “Crown’s concern, fairly obviously, is that where appropriate, grievances on the part of prisoners who co-operate with authorities and give evidence for the Crown should be avoided”. Siregar and Ismunandar did not co-operate with the authorities and did not give evidence for the Crown. It is, in our opinion, erroneous in principle to treat the Crown concession in a way that is apt either to exaggerate its significance, or to embrace a step which offends conventional sentencing principles.

37 The proper administration of justice in the light of the legislative scheme calls for extremely heavy sentences for Siregar and Ismunandar. They participated at a very senior level in one of the most serious crimes known to the law in this country. Had they not played the role they each did, the crime could not have been committed. Parliament selected, as the correct maximum sentence for the crime, the heaviest punishment known to the law of this country. The actual crime committed was the worst crime of its type which the police forces of this country have ever been able to identify, and they have identified very many. Head sentences of 22 years with a non-parole period of 15 years are so far out of line with what is right, in the light of what the appellants did when viewed in the context of the legislative scheme, that they are an affront to the administration of justice. No sense of grievance in Siregar and Ismunandar excited by contemplation of the difference between Mandagi’s sentence and theirs can be legitimate in the light of the intrinsic criminality of their own conduct.

38 The appellants in effect sought to support their claim to a reduction in sentences by contending that if it was not acceded to, there would be a “significantly different approach to appropriate sentencing for co-offenders by differently constituted benches of this Court as to undermine the public confidence in the consistency of a senior court of this State”. There are, however, more important things than consistency. It is better that this Court, constituted as it is, arrive at the correct result in the Siregar-Ismunandar appeal, than that it arrive at the wrong result merely because this Court, constituted as it was in the Mandagi appeal, arrived at a wrong result. To adapt an ancient aphorism, it is not better that this Court should be perpetually wrong than that it should be sometimes right. In R v Rexhaj (NSWCCA, unreported, 29 February 1996) Gleeson CJ (Powell JA and Ireland J concurring) said:

“The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice … . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.”

If “public confidence” is a virtue, then public confidence of a legitimate kind is more likely to be maintained, after giving all due weight to parity principles, by not interfering with sentences which, when viewed separately from what happened in Mandagi’s appeal, were unquestionably correct.

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