R v Mo

[2007] NSWCCA 61

Reported Decision: 169 A Crim R 60

New South Wales

Court of Criminal Appeal

CITATION:	R v MO [2007] NSWCCA 61
HEARING DATE(S):	26 September 2006
JUDGMENT DATE:	9 March 2007
JUDGMENT OF:	Sully J at 1; Barr J at 10; Adams J at 14
DECISION:	(i) appeal allowed and sentence quashed; (ii) substitute a head sentence of thirteen years and two months commencing on 12 May 2005 and ending on 11 July 2018, with a non-parole period of eight years and eight months ending on 11 January 2014, which is the earliest date upon which the respondent is eligible for release on parole.
CATCHWORDS:	Crown appeal - substantial importation of heroin - proper approach to expression of discounts in sentence
LEGISLATION CITED:	Crimes Act 1914 (Cth) s21E Crimes (Sentencing Procedure) Act 1999 s23
CASES CITED:	Markarian v The Queen (2005) 215 ALR 213, [2005] HCA 25. R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383 R v Wong & Leung (1999) 49 NSWLR 340 R v Z [2006] NSWCCA 342
PARTIES:	Regina (Appellant) Wai Hong MO (Respondent)
FILE NUMBER(S):	CCA 2006/1449
COUNSEL:	Ms W J Abraham QC with Mr L K Crowley (Appellant) Mr M Johnston (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Appellant) Legal Aid Commission (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0878
LOWER COURT JUDICIAL OFFICER:	Berman SC DCJ
LOWER COURT DATE OF DECISION:	12 May 2006

2006/1508

SULLY J
BARR J
ADAMS J

9 March 2007

REGINA v Wai Hong MO

Judgment

1 SULLY J: I have had the benefit of reading in draft the reasons of Adams J. I agree with the orders proposed by his Honour.

2 I am in general agreement with his Honour’s reasons for the making of those orders; but, with respect, I do not agree with what seems to me to be the thrust of what is conveyed by paragraph 10 of his Honour’s reasons.

3 His Honour refers in paragraph 10 to the decision of this Court, (Spigelman CJ, Wood CJ at CL, Foster A-JA, Grove and James JJ), in R v Thomson and Houlton (2000) 49 NSWLR 383. That decisions stands as authority for the proposition that: ‘The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.’

4 That proposition is not, however, the sole guidance given to sentencing Judges in connection with the vexed question of allowing, in consideration of a plea of guilty, a reduction in what would otherwise be an appropriate sentence. As the guideline judgment itself recognises, the basic proposition as quoted above raises necessarily the cognate question of the extent, if any, of an obligation on the part of the particular sentencing Judge, not only to refer to the fact that a reduction of sentence is being conceded, but to state in percentage terms a precise quantification of the discount that is actually being allowed in the particular case.

5 In that latter regard the guideline judgment is, as I respectfully think, completely clear. The relevant portion of the guideline is expressed as follows:

“(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant – contrition, witness vulnerability and utilitarian value – but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.”

6 I apprehend that it is completely clear from that statement of principle that the guideline judgment did not intend to impose upon a sentencing Judge a precise obligation to state in quantified percentage terms the extent of the relevant discount that was being allowed in the particular case. Any suggestion that a failure on the part of the sentencing Judge to express himself in such a precise mathematical percentage way manifests error of sentencing principle should be, in my opinion, firmly refuted. I would refute similarly any suggestion that, although it might not be, in a precise and technical sense, an error of law for a sentencing Judge not to nominate a discount in precise percentage figure terms, it is nevertheless in some way either improper or undesirable for such a quantification not to be made. I take that stand because I think the time has come to acknowledge something that practical experience in the wake of the guideline judgment has plainly demonstrated: namely, that, if I may put the point in this way, one man’s transparency is another man’s artifice.

7 It is, in my opinion, of considerable practical importance to the just operation of the law of sentencing in criminal cases to keep a firm grasp of the basic principles that were re-affirmed as recently as 2005 by the High Court of Australia in Markarian v The Queen (2005) 215 ALR 213. In the context of the present discussion it will do no harm to reproduce certain of the passages in the joint judgment of Gleeson CJ and Gummow, Hayne and Callinan JJ:

“[27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”
“[37] (There is a general discussion of certain aspects of the reasoning of the Court in the earlier decision of Wong v The Queen (2001) 207 CLR 584. Reference is made to extracts taken from the reasons of Gaudron, Gummow and Hayne JJ in that matter. Having expressed the view that what is commonly described as the “two-tier” approach to sentencing is “wrong in principle”, Gaudron, Gummow and Hayne JJ explain by reference to particular examples why they are of that view. One of the examples is expressed by their Honours as follows, and in a passage which is quoted in [37] of the joint majority judgment in Markarian .):
“To take another example, to ‘discount’ a sentence by a nominated amount on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher when he said that:
‘It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.’
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. [emphasis in original]”
“[39] Following the decision of this court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of ‘instinctive synthesis’, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression ‘instinctive synthesis’ may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.”

8 I apprehend that the reasoning which is advanced in paragraph 10 of Adams J’s reasons draws in substance upon what is said in the previously quoted paragraph [39] of the joint majority reasons in Markarian. In my opinion it can be allowed at once that what is said in paragraph [39] is authority for the proposition that in an appropriately simple case “indulgence in arithmetical deduction” should not be “absolutely forbidden”. I apprehend, however, that it would be quite mistaken to take what is said in paragraph [39] as being intended to cut down in any way the things earlier said in paragraph [27].

9 I apprehend that no conscientious sentencing Judge would wish ever to pass a sentence of imprisonment which was not transparent if, by that expression, is meant the manifest logical application of principles correctly perceived to facts correctly found. That approach to the notion of transparency is, however, a very different one from an approach which rhetorically invokes transparency as the means of injecting into the sentencing process multiple mutations of imaginative, but intrinsically adventitious, forensic mathematics. The logical ultimate conclusion of the second approach runs, in my opinion, the real risk of becoming the Trojan horse for grid sentencing, which is the ultimate negation of the principled fashioning of an individual sentence in connection with an individual offence committed by an individual offender.

10 BARR J: I have had the advantage of reading in draft the judgment of Adams J and I agree with his Honour’s conclusion as to the inadequacy of the sentence appealed from. I would allow the appeal, quash the sentence and substitute the one proposed by his Honour.

11 However, my agreement does not extend to any criticism of the sentencing judge for declining to attribute a precise proportion or number of percentage points to the utilitarian value of the plea of guilty. Sentencing judges are encouraged to quantify this effect of pleas of guilty insofar as they believe it appropriate to do so: R v Thomson; R v Houlton [2000] NSWCCA 309 per Spigelman CJ at [160] (ii), with whose judgment the remaining members of the Court agreed. But encouragement falls short of requirement. The utilitarian value of a plea of guilty can hardly ever be the only feature of a case tending towards a lesser sentence. It was not in the present case. Consistently with the judgment of this Court in R v Thomson; R v Houlton, the Court ought to respect the opinion of the sentencing judge. When reminded that he had not quantified any discount other than that for future assistance, his Honour said -

I am aware of that and I did not do it. It becomes too mathematical once you get into more than one category of discount.

12 Presumably his Honour had in mind the artifice involved in attributing values to features which, though individually identifiable, do not stand alone uninfluenced by and not influencing other individually identifiable features. See the judgment of Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 226-230. The sentencing judge took an instinctively synthetic approach, and that was consistent with authority: Markarian v The Queen [2005] HCA 25.

13 I have read the judgment of Sully J and agree with his Honour’s observations.

14 ADAMS J:

Introduction

On 6 February 2006 the respondent pleaded guilty to an indictment charging that he and one Kien Phat Tang –

“Between about 10 May 2005 and about 12 May 2005 at Sydney New South Wales attempted to commit an offence against s233B(1) of the Customs Ac t 1901 in that they attempted to have in their possession goods that had been imported into Australia in contravention of the Customs Act 1901, being prohibited imports to which s233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin.”

15 The maximum penalty for this offence is life imprisonment and/or a fine not exceeding $825,000. The weight of the pure heroin was just over 76 kilograms and the weight of the mixture including the heroin was almost 106 kilograms. It appears that a conservative estimate of the wholesale value of the heroin at the time of its seizure was about $60 million.

16 On 12 May 2006 the respondent was sentenced to imprisonment for nine years with a non-parole period of six years commencing 12 May 2005, the date upon which the respondent was taken into custody.

The timing of the plea

17 When the respondent was arrested on 12 May 2005 he declined to be interviewed. At that time he was jointly charged with Kien Phat Tang. They were in due course jointly committed for trial. Their joint trial was to commence on 30 January 2006 but was adjourned. On 2 February 2006 the respondent’s solicitor informed the AFP that the respondent was prepared to participate in a taped record of interview. The joint trial had been set down to commence on 6 February 2006 but, in light of what had transpired, a separate indictment was presented against each of the co-offenders, the respondent pleading guilty and Tang pleading not guilty. On 9 February 2006 the respondent was interviewed by the AFP and gave what the Crown submitted were “cogent details of his participation in the commission of the offence and gave details of the involvement of the co-accused Tang and the further person of interest to police in respect of this particular importation, the man Vi Hung Ly”. On this occasion, the respondent indicated that he would be willing to provide a signed statement containing the information provided during the interview and, further, would be willing to give evidence for the Crown against Tang. Accordingly, Tang’s trial (which had commenced on 6 February 2006) was aborted on 16 February. It was listed to commence on 14 August 2006 but was adjourned until later in the year.

18 The circumstances leading up to the plea were the subject of evidence before the sentencing judge, there being a controversy about whether it occurred at the earliest practicable opportunity. The respondent gave evidence by way of affidavit and orally. The respondent said that two weeks after his arrest he retained a Mr Goold as his solicitor. Mr Goold, it seems, was requested by Vi Hung Ly to act for the respondent, Mr Ly being responsible for his fees. The respondent said that he was repeatedly told by Mr Goold and his employed solicitor that he should not plead guilty. As the trial date became imminent the respondent felt that insufficient preparation was being undertaken for the trial. He said he asked repeatedly for a copy of the police brief of evidence to be provided and that this was eventually done, with one volume missing, about three weeks before the listed trial date of 30 January 2006. According to the respondent, later conferences with his solicitor confirmed his suspicions that they were inadequately prepared for the trial. Ultimately on 28 January 2006 the respondent changed his solicitor and, for this reason, was granted an adjournment, on 30 January 2006, of the trial. The respondent was cross-examined about this evidence by the Crown prosecutor on the sentence proceedings to the effect, in substance, that he had received the brief of evidence on a date considerably earlier to that to which he had deposed and that he instructed Mr Goold that he wished to plead not guilty and did not receive advice from Mr Goold that he should do so, as he had said. The respondent adhered to the account given in the affidavit. The prosecution called Mr Goold who gave evidence that the brief of evidence was provided to the respondent sometime towards the beginning of September 2005, with the fifth volume (which largely contained the telephone intercepts, of little direct relevance to the case against the respondent) being given to him somewhat later. Mr Goold denied that he repeatedly told the respondent that he should plead not guilty. He said that there were many conferences with the respondent going through the evidence, although Mr Goold said, that his instructions “stalled” when they came to discuss the listening device material, which formed the substantial part of the Crown case against him. Mr Goold said that the instructions in this respect were inadequate although they related to a crucial part of the evidence. Mr Goold was not asked specifically about whether he advised the respondent concerning the advantages of a plea of guilty. He said that he informed him (as I understand his evidence) that he might win his case depending on the evidence that he gave and whether the jury accepted it; he also advised him as to the heavy penalties that might be imposed if he was found guilty. Mr Goold went on to give evidence to the effect that he did not advise him about the possible advantages of pleading guilty but, implicitly, because he was never given adequate instructions about the crucial part of the case and, at all events, the respondent was adamant that he did not wish to plead guilty.

19 I do not propose to deal with counsel’s submissions on the issue. The learned sentencing judge said –

“One other matter that I must give direct attention to concerns the plea of guilty in this case. There has been some evidence called as to whether this plea was entered at the earliest reasonable opportunity. As I understand it, the submission put on behalf of the offender by Mr Bellanto is that the offender had the right to have the case against him explained before he decided whether he should plead guilty or not. Of course he had that right. An offender has the right to know the case against him and even has the right to have the Crown prove the case against him. People are not punished for having exercised those rights. But that is not to say that the offender should be treated as if he was a person who had decided to plead guilty, even before he knew the nature of the case against him. He knew whether he was guilty or not. Many offenders are in such a position. And those who take the attitude that they will plead guilty because they know they are guilty would feel justifiably hard done by if they are put in the same position as people in this offender’s position.
Nevertheless, of course, the plea of guilty does indicate a willingness to facilitate the course of justice. It is evidence of contrition and remorse and the offender is to be rewarded with an appropriate discount…”

20 The learned sentencing judge then discussed the respondent’s cooperation with the authorities and his willingness to give evidence. His Honour referred to s21E of the Crimes Act 1914 (Cth) requiring the Court to specify, where a sentence is reduced because of an offender’s undertaking to cooperate with law enforcement agencies, the sentence that would have been imposed but for that reduction and, in this respect, said that he “would have imposed a sentence 20% greater” than that which he imposed. His Honour went on to say –

“I will not separately quantify the other discounts allowed for the plea of guilty and past assistance. I recognise that that assistance has been substantial and has led to the situation where there is a threat to the offender’s life, that threat being taken seriously by the authorities. Of course as a result of that threat the offender is now serving his sentence in protection. That is likely to continue for the remainder of his sentence. Not all forms of protection involve conditions significantly harsher than that in the general prison population, but there is at least the risk that that will be the case.”

21 So far as State offences are concerned, s23 of the Crimes (Sentencing Procedure) Act 1999 explicitly provides that a lesser penalty than would otherwise have been imposed may be imposed for assistance to law enforcement authorities. Sub-section 23(2) sets out relevant matters that must be considered and ss23(3) provides that the lesser penalty “must not be unreasonably disproportionate to the nature and circumstances of the offence”. (I would point out, because this is sometimes overlooked, that it is clear that some disproportion is accepted as the price paid, as it were, for the assistance. If the discount is real as distinct from a pretence (which cannot be countenanced) the resulting sentence must be less than that which otherwise the sentencing judge would have actually imposed. Ex hypothesi that sentence will be proportionate. That is why it is imperative that the judge arrive at a definite, actual and otherwise appropriate sentence taking into account all the relevant sentencing considerations before applying the discount.) As with so much of this Act, no more is done in this provision than express with unnecessary complexity what has been the common law of this State.

22 This Court has considered on a number of occasions the proper approach to calculation of a discount for public policy reasons where an offender has pleaded guilty and also assisted the authorities. I referred to and discussed a number of these decisions in R v Z [2006] NSWCCA 342 at [106] and [113]–[121] which I do not need to repeat for present purposes.

23 It is clear that the sentence imposed by the primary judge represented a sentence 20% less than that which he would otherwise in the absence of the offer of future assistance. His Honour did not quantify the discount allowed for past assistance, though he recognised “that that assistance has been substantial and has led to the situation where there is a threat to the offender’s life, that threat being taken seriously by the authorities”. His Honour also allowed that “as a result of the threat the offender is now serving his sentence in protection” which represented “at least the risk” that he will serve his sentence under conditions significantly harder than those suffered by the general prison population. These assessments should be accepted for the purposes of this appeal.

24 The learned sentencing judge declined to quantify the discount allowed for the plea of guilty. With respect, the sentencing of the respondent did not represent any particularly complex issues so far as discounts were concerned and there does not appear to be any good reason for not quantifying the discounts allowed for the plea of guilty and past assistance, even if no distinction was made in respect of them and a global discount applied. As a matter of general principle, the reasons for selection of a particular sentence should be transparent and, where particular aspects are commensurable, there are at least two good reasons for specifying them and no good reasons for not doing so. The two good reasons are, first of all, that it is a fundamental aspect of justice that important factors taken into account should be identified to enable, not only the parties but also this Court, to understand the process undertaken by the primary judge. The second good reason is that identified in The Queen v Thomson & Houlton (2000) 49 NSWLR 383 concerning the public interest in enabling appropriate advice to be given to offenders on their sentence as to the likely effect of a plea.

25 It was contended by the Crown prosecutor in this Court that, on the facts of this case the highest global discount that could have properly been allowed to the respondent for assistance, both past and future, and the plea of guilty, should not have exceeded 40%. She submitted that, if this were the discount, the starting point for a head sentence before that reduction would have been fifteen years and, even if a 50% discount were allowed, the starting point would have been eighteen years. It is submitted that, in either event, the starting point was too low. Although not without some utility, it seems to me that this approach, involving as it does speculation about the process of reasoning at first instance, is unsatisfactory. It does not identify any particular error. The proper approach, in my view, is to consider whether the sentence itself is so low as to demonstrate some latent error of reasoning, in short, whether the sentence is manifestly inadequate having regard to all the objective and subjective features of the case.

The facts

26 These are largely uncontroversial and the following account is largely derived from the learned sentencing judge’s reasons for sentence. The offender, who came from Hong Kong, spent some time in Australia as a student. Whilst here, he was befriended by Ly (the co-offender to whom I have already referred). In due course, the respondent returned to Hong Kong for business reasons. Mr Ly, who was still in Australia, informed him that he had work for him back in Australia. The respondent was told that the nature of the work was to obtain something from behind a steel wall, which needed to be cut into and then repaired. The respondent was told that he would be paid AUD50,000 for this work. The respondent said that, whilst he realised that he was being asked to do something illegal, he thought that it was something in the nature of tax or customs evasion, perhaps involving the smuggling of diamonds. The learned trial judge concluded beyond reasonable doubt that, well before the respondent came to Australia, he was aware of at least the risk, if not the likelihood, that what he was being asked to do involved a large-scale drug importation. In February 2005 two shipping containers arrived in Melbourne. A month later they were searched by police who discovered the drugs. The following month the containers were placed in a warehouse in Sydney where they were when the respondent arrived in Australia from Hong Kong. The respondent paid for the air tickets and related expenses himself, expecting to be reimbursed by Ly once he had completed his task. Indeed, shortly after he arrived, Mr Ly gave him AUD10,000 in cash as a down payment on the agreed sum and a set of keys to premises in Minto. It was now early May 2005. Between 5 and 12 May the respondent met with a number of persons who were more deeply involved in the importation than he was to discuss what he needed to do. About a week later he and Tang inspected the containers to assess what was needed so that the rooves of the containers could be cut into and the contents, namely the drugs, removed. The containers were full of sun lounges and, on 11 May, the respondent arranged for workers to remove them so that he and Tang could get access to the rooves. He hired a vehicle and bought cutting equipment. The respondent had arranged, once the drugs had been recovered, to deliver them to his principals. On 12 May the respondent and Tang spent several hours attempting to gain access to the contents in the containers. However, the police had already removed the drugs. Tang and the respondent were preparing to leave the premises when police entered and arrested them.

27 A conservative estimated street value of the heroin seized from the containers by police is $60 million. Although it is not suggested that the respondent was aware of the actual quantity of drugs, let alone of its value, it is clear that he must have known that it was a substantial quantity and, at all events, was prepared to assist in recovering the heroin, whatever its quantity happened to be.

28 The learned sentencing judge concluded “this is a most serious offence indeed, even [though] committed by a person who is engaged in the operation by those higher up in the hierarchy”. In my respectful view, this characterisation of the offence is correct, although cast in general terms. It is not always possible or even desirable to imagine some organisational hierarchy and attempt to place the offender in some posited level within that hierarchy. His Honour took the approach of describing the circumstances of the offence and the offender’s conduct. I think his Honour was right to do so.

Subjective features

29 Aside from his involvement in the present offence, the respondent appears to have been a person of good character. He was 27 years of age at the time of sentencing with no previous criminal history. The learned trial judge accepted that he had worked hard all his life trying to help his family members. Tragically, he had been abandoned by his parents as a young child and brought up by foster parents. His foster mother is ill with a genetic condition, which seriously affects her health. It seems that the primary judge accepted that an important motive for the respondent’s involvement in the offence was to obtain money to help his mother who needed medical treatment, which she otherwise could not afford. The primary judge regarded this as “but a minor matter of mitigation”.

Plea of guilty

30 It was argued at first instance and contended in this Court on the respondent’s behalf that a utilitarian discount in the order of 20% was appropriate in light of the fact that the respondent pleaded guilty very shortly after he was made aware of the nature of the Crown case against him. The fact of the matter, however, is that that the plea of guilty was intimated only shortly before the trial date and entered on that day. In some (hopefully rare) circumstances, this will indeed be the earliest practicable date justifying a discount at the high end of the range posited by Thomson & Houlton. However, this was not such a case. The respondent at all times knew that he was guilty of the offence. No doubt it was reasonable that he should not plead guilty until he was made aware of the strength of the case against him. But I do not see why it was not practicable for him to do so, if not at committal, then in the District Court long before the trial. Aside from anything else, the mere circumstances of his arrest, together with his own knowledge of his involvement, must have given him a fairly sound, if general, understanding of the nature of the prosecution case.

31 I would not be critical of the respondent’s former solicitors for not telling him at an earlier stage of the advantages that might be expected from an early plea, having regard to his instructions from the beginning that he was not guilty. Confidence between legal advisers and clients in the position of the respondent is very important and legal representatives must judge carefully the line taken to advise the client about a plea of guilty before full instructions have been obtained. Nevertheless, I think that this case illustrates the desirability of lawyers acting for a person charged with a serious offence raising with the client at the earliest possibility the potential advantage of an early plea. The learned sentencing judge took the approach, with respect correctly, that although the respondent had acted reasonably in the exercise of his rights, it could not be said that he pleaded at the earliest practicable opportunity. His Honour nevertheless accepted that the plea of guilty indicated a willingness to facilitate the course of justice and was also evidence of contrition and remorse and he should have “an appropriate discount”.

32 The crucial feature of the utilitarian discount is that it is given to reduce a sentence which would otherwise have been imposed. Despite suggestions to the contrary in some judgments of this Court, it seems to me that it follows that should be applied after contrition and remorse is taken into account in determining the starting point. The purpose of the discount is not in any way to acknowledge contrition or remorse; they are conceptually fundamentally different from the advantage to the administration of justice of which the discount is an expression. Furthermore, since contrition and remorse are, in principle, part of the melange of subjective and objective features that interact in an incommensurable way to produce the appropriate sentence, bringing them into account for the purpose of the discount must be to double count or else to mix inherently distinct features, one of which is essentially motivation and attitude and immeasurable whilst the other is a public policy consideration having nothing to do with either motivation or attitude and of necessity measurable; see Thomson & Houlton 49 NSWLR at 411-412. However, whilst for myself I consider that, with respect, the approach of the learned sentencing judge was an undesirable one it was, plainly enough, not an error. Since, as will appear, I consider that the appeal should be allowed and, accordingly, the respondent must be re-sentenced, I propose that the respondent should be afforded a utilitarian discount of 10%.

The sentence was manifestly inadequate

33 In this Court, the Crown prosecutor pointed out that, for relevant purposes, the commercial quantity of heroin is 1.5 kilograms whilst the amount involved in this offence was over 75 kilograms. Nor was the importation simple: it was a sophisticated plan obviously developed for the purpose of enabling the importation of such a large amount, which could scarcely have been brought in by mere “mules”. The seriousness of the offence is marked by the maximum available sentence, namely one of life imprisonment. The learned Crown prosecutor in this Court referred us to the judgment in R v Wong & Leung (1999) 49 NSWLR 340 where this Court proposed guideline sentences for importing heroin and cocaine. The guideline was rejected as wrong in principle by the High Court of Australia ((2001) 207 CLR 584) but the judgment annexes a schedule of sentencing outcomes sorted by quantity of a number of sentences applicable to these offences. The indicative range for the importation of a substantial commercial quantity of between 3.5 kilograms and 10 kilograms was ten to fifteen years. These sentences were to be applicable following trial but they were proposed before the repeal of s16G of the Crimes Act 1914 (Cth). Having regard to the reasons for rejecting the guidelines, the numbers must considered with caution. However, the range of sentences broadly speaking imposed for importations before 1999 it does have some use. For the reasons extensively discussed in the judgements of the High Court of Australia in Wong & Leung, it is important not to focus inappropriate attention on the quantity of heroin as distinct from other relevant objective and subjective features. It is imperative that the guideline should not be applied, as it were, by the backdoor.

34 Nevertheless, the quantity of drug imported must be a significant marker of objective seriousness and, together with the role of the respondent, marks the objective gravity of this offence as considerable. It has been said that, in cases of this kind, character is relatively less significant than it might otherwise be for other offences. This observation is so general as to be of little use. Of course, couriers are almost invariably chosen because they do not have criminal records in order not to excite the curiosity of law enforcement but good character involves more than mere lack of convictions and, at all events, the respondent was not a courier. There was positive evidence of good character here that, in my view, should be taken into account. Again, the respondent’s motivation for the offence was, I think the sentencing judge accepted, need rather than greed, at least the need to take care of his foster mother who was seriously ill. He was, therefore, made vulnerable to accepting Ly’s proposal not by his greed so much as his desire to help his ill foster mother. These considerations cannot loom large in assessing the appropriate sentence but they are not insignificant: nevertheless they are favourable to the respondent and should be weighed in the balance in his favour.

35 Weighing up all these considerations and taking into account an appropriate discount for plea and assistance to the authorities, I have concluded that the sentence imposed on the respondent was manifestly inadequate. Nor is this a case, in my view, in which the Court should its exercise its discretion not to interfere with the sentence below. The sentence that I propose is, of course, significantly below that which should have been passed at first instance, having regard to the restraint exercised by this Court when allowing a Crown appeal against sentence.

Proposed sentence

36 In my view, the appropriate starting point before allowing any discount to the respondent is twenty-two years’ imprisonment. Having regard to the information provided to the Court, I would provisionally allow a discount for assistance to the authorities of 30%, which includes an allowance of 20% for future assistance. To this I would add 10% discount for the utilitarian value of the respondent’s plea. In all, this discount yields a head sentence of thirteen years and two months (rounded down). Applying the conventional ratio between the head sentence and the non-parole period applicable in Commonwealth offences, there would, on these numbers, be a non-parole period of eight years and eight months (rounded down). The question then to be considered is whether this sentence, by virtue of the discounts, is so low as to be outside the available discretionary range. Where such is the case, the allowance for assistance must be varied to correct the inappropriate leniency. In my view, the sentence that I propose, although at the bottom of the available range (as a consequence of the restraint applying on Crown appeals) is not so inappropriately inadequate as to lead me to reconsider the discounts which I have applied.

37 Accordingly, I would propose the following orders –

(i) appeal allowed and sentence quashed;

(ii) substitute a head sentence of thirteen years and two months commencing on 12 May 2005 and ending on 11 July 2018, with a non-parole period of eight years and eight months ending on 11 January 2014, which is the earliest date upon which the respondent is eligible for release on parole.
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