R v Otto

[2005] NSWCCA 333

Reported Decision: 157 A Crim R 525

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Otto [2005] NSWCCA 333 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 August 2005
JUDGMENT DATE:	23 September 2005
JUDGMENT OF:	Sully J at 1; Hidden J at 47; Hall J at 48
DECISION:	Decision by majority - Leave to appeal granted in respect of the offence against s.233B(1)(b) of the Customs Act (1901) (C'th); Sentence imposed in respect of that offence quashed; In lieu thereof, imprisonment for 10 years and 6 months commencing 24 May 2004 and expiring on 23 November 2014, with a non-parole period of 7 years, commencing 24 May 2004 and expiring on 23 May 2011; Earliest date for realease on parole - 23 May 2011

CATCHWORDS:	Criminal Law - Application for leave to appeal against sentence - importation of commercial quantity of cocaine - whether appropriate weight given to plea of guilty - examination of relevant principles - observations by Sully J about the approach to pleas of guilty in the light of the Thomson guidelines - whether sentence manifestly excessive - examination by Hall J of comparable cases.
LEGISLATION CITED:	Customs Act 1901 (C'th) Passports Act 1938 (C'th) Commonwealth Crimes Act 1914 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 (C'th) Crimes Legislation Amendment (People Smuggling, Firearms, Trafficking and Other Measures) Act 2002
CASES CITED:	Regina v Ebsworth [2002] NSWCCA 465 Regina v Sutton [2004] NSWCCA 225 Regina v Johnson (1917) 17 SR (NSW) 481 Regina v Wong and Leung (1999) 48 NSWLR 340 Regina v Thomson and Houlton (2000) 49 NSWLR 483 CSR v Bouwhuis, Court of Appeal, unreported, 23 August 1991 Regina v Kalache [2000] NSWCCA 2 Regina v Markarian (2005) 79 ALJR 1048 Regina v Wong (1999) 48 NSWLR 340 Regina v Wong (2001) 207 CLR 584 Regina v Bernie (1998) 102 A Crim R 44 Regina v Castles [2005] NSWCCA 79 Regina v Bugeja (2001) NSWCCA 196 Regina v Speer [2004] NSWCCA 118 Regina v Mas Rivadavia [2004] NSWCCA 284 Regina v Studenikin (2004) 60 NSWLR 1 Regina v Dugeu (2004) 146 A Crim R 123 Regina v Bezan (2004) 147 A Crim R 430 Regina v Olbrich (1999) 199 CLR 179, 278 Regina v Gey-Houn Ra [2002] NSWCCA 251 Regina v Mascaro-Varillas [2002] NSWCCA 524 Regina v Cameron (2002) 209 CLR 339 Regina v Winchester (1992) 58 A Crim R Regina v Bishop (Court of Appeal), unreported, 23 September 1996
PARTIES:	Regina Phillip Otto
FILE NUMBER(S):	CCA 2005/924
COUNSEL:	L. K. Crowley - Crown (C'th) P. Strickland - Applicant
SOLICITORS:	Commonwealth Director of Public Prosecutions - Crown Legal Aid Commission - Applicant

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	04/11/0966
LOWER COURT JUDICIAL OFFICER:	Latham DCJ

2005/924

SULLY J
HIDDEN J
HALL J

23 September 2005

REGINA v Phillip OTTO

Judgment

SULLY J:

Introduction

1 The applicant, Mr. Otto, pleaded guilty before a Local Court Magistrate to a charge that on 24 May 2004 he imported into Australia not less than the prescribed commercial quantity of cocaine; and to a concomitant charge that on the same day he had in his possession within Australia a falsified Irish passport.

2 The former of those offences contravenes section 233B (1)(b) of the Customs Act 1901 (C’th). It attracts upon conviction a penalty of, relevantly, imprisonment for life.

3 The latter of those offences contravenes section 9A (1)(f)(i) of the Passports Act 1938 (C’th). It attracts upon conviction a penalty of, relevantly, imprisonment for 2 years.

4 The gross amount of cocaine imported was 3,025.5 grams. The amount by pure weight was 2,136.8 grams. Its estimated street value as at the date of importation was a little more than $854,000.

5 The applicant was committed, on his pleas of guilty, for sentence in the District Court. He was duly presented before her Honour Judge Latham, and he then adhered to his pleas. He duly stood for sentence on 5 November 2004. He was convicted of both offences; and was sentenced thereupon to imprisonment, on the importation charge, for 14 years with a non-parole period of 8-1/2 years; and on the falsified passport charge for 1 year. The latter sentence was passed as a fixed term concurrent with the cocaine importation sentence.

6 The applicant now seeks leave to appeal against the sentence passed upon him in connection with the cocaine importation offence. His grounds are: first, that her Honour erred “in that she did not give an adequate discount for the applicant’s early plea of guilty”; and secondly, that the sentence imposed was manifestly excessive.

The Material Facts

7 These are conveniently summarised as follows in the remarks on sentence:

“The facts are that at about 7.30 am on Monday 24 May 2004 the prisoner, purporting to be one Thomas James Quinn born on 8 October 1972, with an Irish passport, number N601365, arrived at Sydney Airport aboard a Land Chile Airlines flight number LA 801 from Santiago, Chile. The prisoner presented that passport and incoming passenger card in the name Thomas James Quinn. In answer to the question “Are you bringing into Australia goods that may be prohibited or subject to restrictions such as any kind of illicit drugs?”, the prisoner had ticked ‘no’.
The prisoner told an Australian Customs Service officer he had been to Sao Paulo, Brazil, for four weeks where he had travelled around and that he had come to Australia for a holiday. He also said he was carrying $600 US currency but did not have any bank or credit cards. The prisoner was selected for a baggage examination by a Customs officer. An ion scan of the prisoner’s belongings produced a positive result for cocaine. During the conversation with the prisoner, when the Customs officer asked if he would consent to a frisk search, the prisoner said “Why are you picking on me. I am here for a holiday and I have done nothing wrong., why are you searching me?”. After the Customs officer explained that it was because his bag had tested positive for cocaine the prisoner said “I don’t understand, I don’t have any drugs and my bag is brand new”. Customs officers then conducted a frisk search of the prisoner which revealed that he had something concealed under his clothing. A subsequent external search revealed that the prisoner was wearing a corset under his clothing which encompassed his body between his chest and his knees. That corset contained the quantity of the prohibited drug referred to above.
Australian Federal Police then attended, arrested the prisoner and cautioned him. He was taken to an Australian Federal Police office where he agreed to take part in a taped record of interview. During the interview the prisoner said his real name was Phillip Otto. His date of birth was 15 October 1976. He was a South African citizen. He had been approached by a person he did not know whilst in a South African nightclub and offered 20,000 South African rand or approximately $3,000 US dollars to import the drug. He was given an airline ticket and told to fly to Sao Paulo, Brazil, and go to a hotel. Another person he did not know met him at the hotel, put the corset on him, and gave him instructions. That person in Sao Paulo took away his South African passport and driver’s licence. He does not have a contact telephone number for that person. He knew that the body pack contained drugs. He thought the drug could be cocaine or marijuana but was not sure. He knew the Irish passport he was using in the name of Thomas Quinn was false. He was instructed to attend a particular hotel in Sydney and wait for someone to contact him, and he would assist where he could but he did not know the names of people, who they were, or where they were staying.
The only amendment to the contents of the record of interview that has been made in the course of the prisoner’s evidence on sentence of any substance was that the prisoner acknowledged that at the time the corset was attached to his body he knew that it was a powder and that it was likely to be cocaine.
After the prisoner was charged at the Sydney Police Centre he was taken to AFP Headquarters where he participated in a further record of interview. In the course of that interview the prisoner said he was told to book into a hotel in South Africa, and given money. He got a temporary South African passport. He did not make the corset containing the cocaine. He cannot remember the name of the nightclub in Johannesburg where he met the first man and that this is the first time he has done this.
……………………………….
On 30 September 2004, at the prisoner’s request, AFP officers attended the Metropolitan Remand Centre and conducted a taped record of conversation with the prisoner during which the prisoner provided the first names of three people suspected of being involved in illegal activities in Brazil and South Africa. These names were of little intelligence value to the AFP. They did not assist with further investigations and they did not lead to any further arrests.
As I have already indicated, the prisoner gave evidence in the proceedings on sentence. He is presently 28 years of age. He confirmed that his date of birth was 15 October 1976. He said he was a South African citizen born in Cape Town, that he had not left South Africa before April of 2004 and that he had no criminal record in that country, or any other country. He indicated that his mother and father were both ill and had recently moved from their previous address in Johannesburg. He said he had two younger sisters and he had at one stage been engaged to be married. He had worked in the security industry for a time but had left that employment voluntarily in February 2004 and had gone to live in Durban. At that particular time he said he was without means and was effectively living in a shelter. He said that he met a guy named Tony who paid for his bus ticket to Johannesburg where he met another man in the nightclub referred to in the course of the record of interview. He confirmed that he did not purchase the cocaine, or make the corset, or pack the cocaine within the corset.”

Ground 1: Her Honour erred in that she did not give an adequate discount for the applicant’s early plea of guilty

8 The applicant puts two broad arguments: first, that her Honour erroneously reduced a proper discount by having regard in that calculation to the strength of the Crown case; and secondly, that her Honour, not having indicated what discount she was actually allowing, should be understood as not really having taken the pleas into proper consideration at all; or as having chosen an inappropriately low discount; or as having chosen an inappropriately high starting point for a putative undiscounted head sentence.

9 It is necessary to have careful regard, in connection with the first of these arguments, to what her Honour actually said. The relevant portion of the remarks on sentence reads:

“The fact that the Crown called no evidence to contradict this account does not preclude an adverse finding on the question of the prisoner’s credibility. I reject the submission that the prisoner was a mere courier in the sense that he played no part in the organisation of the importation. His role in the commission of this offence indicates a greater level of criminality than the naïve recruit the prisoner would have the Court accept. What position in the hierarchy of importation the prisoner occupied cannot be determined, but that should not deflect the Court from assessing the prisoner’s criminality on the basis of the available evidence. The available evidence signals a level of criminality of a reasonably high order. The prisoner’s pleas of guilty amount to a recognition of the inevitable, albeit they indicate a willingness to facilitate the course of justice . His belated information to police on 30 September 2004 could not be said to provide anything in the way of meaningful assistance for the purposes of justifying a discount on the sentence otherwise appropriate to the commission of these offences. The limited information provided on that day is only of potential worth, assuming the prisoner’s version of events surrounding the importation is credible. I have already indicated my assessment on that score.” [emphasis added]

10 A convenient point of departure for an analysis of the emphasised material in the quoted passages is the decision of this Court in Reg v Ebsworth [2002] NSWCCA 465. Wood CJ at CL says, and with the concurrence of Dowd and Bell JJ, at paragraphs 7 and 8 of his Honour’s judgment in that matter:

“7 It was next submitted that his Honour erred when observing, in relation to the plea, that “there was a very strong prosecution case”. Had his Honour relied upon that assessment, as a matter of reducing the utilitarian value of the plea, then that would have involved error on his part, for the reasons identified in R v Parkinson [2001] NSWCCA 244 at par 24 and in R v Thomson & Houlton (2000) 49 NSWLR 383 per Spigelman CJ at pars 137 to 138.
8. His Honour did not quantify the discount given for the plea, nor was he bound necessarily to do so; that is, so long as he made it clear that the plea had been taken into account. When the relevant comment is read in context, I am not persuaded that his Honour was doing anything other than recording that the prosecution had a very strong case, as indeed it did, before going on to note that, nonetheless, from the time that the matter first came before the Local Court there had been an indication of an intention to plead. While it would have been desirable for his Honour to have explicitly stated that the plea was taken into account, and to have quantified the discount given for it, it is plain, from his concluding remark to the effect that he had applied “a degree of appropriate leniency ….. in reducing the head sentence to one of five years”, that this aspect of the case was not overlooked.”

11 A contrasted outcome, although not, in my opinion, an essentially different process of reasoning, is illustrated by the decision of this Court, (Studdert, Dunford and Howie JJ), in Reg v Sutton [2004] NSWCCA 225. In that case the following remarks on sentence were held to manifest error of law:

“……… Evidence from a number of sources speaks of his remorse, which I accept as genuine. He entered a plea of guilty, which has some but not a lot of utilitarian value. The reality is that there was an overwhelming case against him. He is entitled however to consideration for his plea of guilty notwithstanding.”

12 I dare say that a resourceful use of the internet would yield the usual wilderness of single instances falling on one or other side of the relevant dividing line. In such a situation, I must confess that my own reaction is to return to the common sense of earlier years, and in particular to some cautionary notes that were sounded almost 90 years ago by this Court, (Pring, Sly and Gordon JJ), in R v Johnson (1917) 17 SR (NSW) 481. It is the case that Johnson dealt in particular with the tendency, even then apparent, to scrutinise with semantic nicety a summing-up in a criminal trial with a jury. The essential good sense of the relevant remarks is, however, in my respectful opinion equally relevant and useful in connection with the similar scrutinising of remarks on sentence:

“And we who sit here to hear criminal appeals know that there is nothing more common than for a Judge’s summing-up to be microscopically examined after the trial in order to find some expression or phrase, which perhaps the Judge, if he had had time to consider, would not have used; but it is only where the Court can see that a miscarriage of justice has occurred from a mistake in the summing-up that they will set aside the conviction. For myself, I protest against such criticisms of a Judge’s summing-up, because, although I have had a long experience on the Bench, I know that it is almost impossible for a Judge, either in a civil or a criminal case, to choose his words with perfect accuracy. In almost any case he is likely to make some little slip, by using an expression perhaps a little too strong or a little too weak.” [17 SR (NSW) at 483, 484]

13 Looking at the present complaint in what seems to me to be a sensible way, due regard being had to context, my understanding of her Honour’s remarks is that she was saying nothing more than this:

“The prisoner’s pleas of guilty amount to a recognition of the inevitable, but nonetheless they indicate a willingness to facilitate the course of justice and some proper recognition of that fact must be accommodated.”

It is, perhaps, in the spirit of the exercise to note that the shorter Oxford dictionary definition of “albeit” includes: “1. admitting (that); 2. although” .

14 If that analysis be correct, then the applicant’s submission that the present case falls, so to speak, on the Sutton side of the relevant divide, is in my opinion unsound and should be rejected.

15 I would thereupon reject at once any suggestion that her Honour simply overlooked the need to make any proper allowance for the pleas of guilty. I do not think that any fair reading of her Honour’s remarks in context could support such an inference.

16 That would entail, in turn, a need to consider whether, her Honour not having quantified expressly the discount allowed, it is fairly to be inferred that the applicant did not receive in that connection what he was lawfully entitled to receive. That question is, in my view, bound up with, and most conveniently taken up in connection with, Ground 2.

Ground 2: The sentence imposed was manifestly excessive

17 The correct starting point is, in my opinion, the requirement which is established by section 16A of the Commonwealth Crimes Act 1914: that is to say, that the sentence ultimately passed must be “of a severity appropriate in all the circumstances of the offence”.

18 It is trite that the first step in determining “all the circumstances of the offence” is not to plunge immediately into an enthusiastic dissection of weights, measures and comparative tables; but to take, rather, a level-headed look at the relevant objective criminality.

19 There could be, surely, no sensible disputing that the objective criminality of this offender was very serious indeed. He walked into this country, deliberately and with full awareness of what he was doing, with a little over 2 kilograms by pure weight of cocaine, a drug the abuse of which causes serious damage both to the abusers themselves and to the society of which they are a part. That itself would make him justly liable, in my opinion, to severe punishment in the correctly principled assessment of which weakly indulgent views of the available subjective circumstances could have, at best, a very limited role to play.

20 That objective gravity can only be worsened, in my opinion, by the findings made by her Honour as to the applicant’s actual standing in connection with the importation. The applicant submitted to her Honour that his true standing should be assessed as being that of a naïve courier. Her Honour rejected that submission; and she was, in my respectful opinion, amply justified in so doing. Her Honour rejected any suggestion that the applicant “played no part in the organisation of the importation”. Once again, her Honour was, in my respectful opinion, amply justified in making, on the whole of the available evidence, such a finding.

21 It is true that her Honour did not see herself as being able to fix any more precisely the applicant’s standing in connection with the importation; but as her Honour observed, and I respectfully agree, that consideration cannot be permitted to deflect attention from the fact that, on the given findings, the applicant was in a real and substantial sense a serious and significant player in a serious and significant criminal enterprise having serious and significant adverse consequences for this country and its citizens.

22 It is, of course, appropriate to factor into the assessment of objective criminality the guidelines established by the guideline judgment of this Court in Reg v Wong and Leung (1999) 48 NSWLR 340. By that reckoning the applicant’s offence lies in what is described by the guidelines as the “low range commercial quantity” of cocaine. That entails a guideline sentence in the range of 8 to 12 years, but subject to the considerations explained as follows by Spigelman CJ at paragraph 141 of his Honour’s judgment:

“That is not to say that in particular cases, sentences outside the range would not be appropriate. It will frequently be the case, for the reasons already referred to, that a substantial degree of assistance will justify a sentence below the relevant range. There may also be circumstances in which a plea of guilty is entitled to such significant weight as to justify a sentence below the range. The range is not intended to apply to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation, to whom an increment should be applied. These factors are not intended to be exhaustive of the circumstances in which sentences outside the range will not attract the close scrutiny of this Court.”

23 It is, of course, necessary to attend, also, to the proper accommodation of the applicant’s pleas of guilty. That necessity engages, yet again, the guideline judgment in Reg v Thomson and Houlton (2000) 49 NSWLR 483.

24 It seems to me that the principles established by that decision:

[1] called for her Honour to apply her mind to the entitlement prima facie of the applicant to a discounting by as little as 10 percent and by as much as by 25 percent of an otherwise correctly principled sentence;

[2] required her Honour to factor that entitlement into the overall “instinctive synthesis” of all the relevant factors, both objective and subjective, that bore upon the formulation of an ultimate penalty;

[3] reminded her Honour that the proper protection of the public could properly entail, in a given individual case, that a discount lower than the prima facie entitlement would be a proper discount;

[4] encouraged her Honour, but expressly did not require her, “to quantify the effect of the plea on the sentence insofar as…. (she believed) …. it appropriate to do so: per Spigelman CJ at paragraph 160 of his Honour’s judgment;

[5] could not displace, and did not in any way purport to displace, the clear statutory obligation imposed by section 16A of the Commonwealth Crimes Act .

25 I do not believe that a fair reading of what her Honour actually said permits of an inference that she simply forgot about a Thomson and Houlton discount. I accept that it might have been better had her Honour quantified specifically what discount she had decided ultimately to factor into her “instinctive synthesis”. I observe, however, that even had her Honour done that, it would be the triumph of hope over experience to imagine that the present application would necessarily not have been brought. For in the supposed case, the argument would simply have taken the quantified figure; done with it a mathematical extrapolation from the final sentence; and deduced either that the discount had been too little; or that the head sentence had been too great; or, more probably than not, both of those propositions.

26 While the law remains, as it does, that her Honour’s failure to quantify precisely the intended discount is not of itself indicative of error, then it seems to me that this Court, when faced with clear and simple but brief remarks on sentence of the kind here relevant, deals most fairly and most practically with the instant case by considering, absent demonstrated patent error, whether there has been some demonstrated latent error . In other words, is the sentence which was in fact passed so plainly outside a permissible range as to manifest latent error somewhere in the supporting process of reasoning?

27 I simply cannot see that there is any warrant for so impugning the applicant’s sentence on the cocaine importing count.

28 For the reasons earlier herein explained, I take a severe view of the applicant’s objective criminality. I acknowledge his subjective circumstances; but this is a case, if ever there was one, when they cannot be permitted to swamp the objective criminality of what the applicant did. I reject the submission that the applicant was entitled, as of course and without qualification, to a 25 percent discount for his plea. He was entitled to a proper discount and nothing more. A proper discount in such as case as the present case must give primacy to the protection of this country and its citizens from the cold-blooded running into the country of large quantities of cocaine and of other prohibited drugs of addiction. That primacy is consonant with the clear Legislative intent as expressed in both sections 16A of the Commonwealth Crimes Act and in the maximum penalty provided by statute.

29 If I have regard to the objective criminality as her Honour assessed it; if I factor in the Wong and Leung guideline adjusted for the repeal of section 16G of the Commonwealth Crimes Act; if I allow for some measure of proper discounting and for all other relevant subjective considerations; and if I factor in an allowance, not mathematically quantified, for the plea of guilty; then I have to say that in my opinion a principled instinctive synthesis does not at all suggest to me that a head sentence of 14 years, on a scale of which the maximum point is imprisonment for life, is outside the ambit of a proper sentencing discretion, so that it could be found upon a properly principled basis that the sentence was vitiated by latent error. There is no call, that being so, to interfere with the non-parole period. This sentence is not, in my opinion, manifestly excessive.

Conclusions and Orders

30 For the whole of the foregoing reasons, I have come to the conclusion that neither of the nominated grounds of appeal has been made good.

31 In my opinion the Court should make, therefore, the following orders:

(1) that leave to appeal against sentence be granted;

(2) that the appeal against sentence be dismissed.

Addendum to Judgment

32 The approach which I have taken in the foregoing judgment did not seem to me, at the time of writing, to call for any extended discussion of the guideline judgment in Reg v Thomson and Houlton (2000) 49 NSWLR 383. Since then I have had the benefit of reading in draft the judgment that Hall J will deliver, and with which Hidden J will concur.

33 I have thought a good deal about the orders that are now to be made by majority; and, because I believe firmly that the Court of Criminal Appeal, of all Courts, should speak whenever at all possible with one voice, I have reconsidered my own judgment in the light of the reasoning in the judgments of my brethren. In doing that I have tried to bear steadily in mind the advice of Samuels JA in CSR v Bouwhuis, Court of Appeal, unreported, 23 August 1991:

“I believe that members of a collegiate court have a particular obligation to accept the decisions of their colleagues and to abstain from a guerrilla warfare designed to diminish their binding authority…………………………………. The role of the judicial dissenter, after the initial protest has been made, is necessarily to maintain a silent vigil in the wings of jurisprudential history. It may remain solitary, or it may culminate in a summons to centre stage. But it does not involve denigrating the current script or booing the players.”

34 Try as I have done, however, I cannot bring myself to accept that Thomson and Houlton entails that an applicant such as Mr. Otto is entitled to have, more or less as of course, a discount of 25 per cent in consideration of his admittedly early plea of guilty.

35 To say that does not imply, at least not as far as I am concerned, that I am interested in “denigrating the current script or booing the players”. My concern is, rather, a misgiving that 5 years of practical experience in the application of the guideline judgment teaches that, yet again, a well-intentioned attempt to promote consistency in sentencing has become yet another forensic loom upon which seemingly endless “veils of ingenious suggestion”, - (to borrow from McCardie J: see Sir Patrick Hastings, Cases in Court, p 143), - can be spun for the purpose of giving great indulgence to malefactors who have, in truth, no just entitlement to and no just expectation, of such leniency.

36 If one looks carefully at what the Chief Justice, who gave the only discursive judgment in Thomson and Houlton, actually said, then it becomes immediately apparent that the timing of the plea of guilty is not the only criterion to be considered. The Chief Justice actually said, omitting cited authorities:

“154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
155. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.
156. Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the “discount” will be reflected in a step down in the hierarchy of sentencing options.
157. There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate.
158. There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea.”

37 It is, of course, the case that in a succeeding paragraph, and in the course of summarising his Honour’s conclusions, the Chief Justice said:

“The primary consideration determining where in the range a particular case should fall, is the timing of the plea.”;

but there is no indication that I can see that this statement was intended by the Chief Justice to cut down in any way what his Honour had said previously at paragraph 154(ii).

38 The written submissions of learned counsel for Mr. Otto quote at length from some trenchant observations in paragraphs 12, 13, 14 and 16 of the judgment of Howie J in Reg v Sutton [2004] NSWCCA 225.

39 In his Honour’s paragraph 12 Howie J says:

“The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence.”

40 Howie J continues to the effect that the stated proposition is “patently obvious from the judgment of the Chief Justice in the guideline judgment, see at [154]”. His Honour cites 17 cases decided by this Court, and all said to support the stated proposition.

41 Assuming, as I am content to do, that each of the 17 cases does indeed support the stated proposition, I fail nevertheless to see how that proposition can sit logically with what the Chief Justice actually said in paragraph 154(ii). There is no mention in paragraph 154(ii) of remorse. There is distinct and repeated reference to the propriety of evaluating a guilty plea by taking into account in addition to the primary criterion of timing: complexity of issues; difficulty in assembling evidence; and the potential length and complexity of a fully contested trial. I see no reason for not giving simple and practical effect to what are, in my respectful opinion, the completely clear propositions stated discretely in paragraph 154(ii).

42 If that be done in Mr. Otto’s particular case, then the following propositions seem to me to be indisputable:

[1] There were no potentially complex issues posed by his case. He was caught red-handed walking cocaine into this country. Any reasonable jury must have rejected out of hand a proposition that Mr. Otto did not know, in the fullest measure, what he was doing.

It is true that he might have attempted to mount a defence of duress. Where, it has then to be asked, is there a scintilla of evidence independent of Mr. Otto himself and supportive of such a case? There is none that I can see.

[2] There was no potential difficulty in “assembling the relevant evidence” . That evidence could hardly have been simpler, or easier to assemble and to present at a trial.

[3} “The length and complexity” to be expected on a sensible assessment of the likely course of a full trial of Mr. Otto were of no great extent.

43 If all of those three considerations are brought sensibly to account, what possible sensible justification can there be for giving Mr. Otto a 25 per cent discount? Section 22 of the Crimes (Sentencing Procedure) Act does not require it. Neither does the guideline judgment. In truth, as I respectfully think, 5 years of forensic artifice and of creative appellate jurisprudence have glossed the guideline judgment to the point where sentencing Judges could be forgiven for taking the line of least resistance by giving 25 per cent more or less automatically upon proof that a plea was entered at the earliest practicable opportunity. That possibility risks, in my opinion, making a farce of the principle of discounting a sentence in consideration of an early plea of guilty. One does not have to agree with, or to approve in any other way, the taking of such a line of least resistance in order to sympathise properly with primary sentencing Judges who can be confident of nothing as much as that they are going to be told more often than not that they have managed, yet again, to misapply the guideline judgment.

44 Indeed, appellate jurisprudence in this area has, in my own respectful view, consistently reinforced that morale-sapping tendency. If a sentencing Judge does not give the Mr. Ottos of this world an immediate and express 25 per cent off, then the odds are that the sentence will be set aside. If the Judge does give that immediate and express 25 per cent off, then the odds are that the sentence will still be set aside because the starting point for the application of the 25 per cent was too high according to some imaginative mathematical hypothesis.

45 If the Judge states factors thought to be relevant, and then instinctively synthesises them as the method producing a final outcome, it will be said that he was not, or not sufficiently, transparent and accountable. If the Judge eschews the instinctive synthesis approach, then the more precisely transparent the reasoning, the greater the conversion of an art into a mathematical exercise which is grid sentencing by another name.

46 In a case like that of Mr. Otto, I believe that this Court should refuse to become entangled in that disheartening farrago. Mr. Otto should get something off: his case is not, on the most austere view, comparable to, for example, the case of Kalache to which the Chief Justice refers in paragraph 158 earlier herein quoted. Mr. Otto has absolutely no entitlement to 25 per cent or anything like it if the paragraph 154(ii) criterion is applied sensibly and according to its tenor. I would myself give him the minimum of 10 per cent. I would refuse to play forensic games by laying out mathematical calculations. I would use the instinctive synthesis method. That would suggest to me that a brazenly culpable objective case, coupled with what I regard as a tepid subjective case, and appropriately discounting for the plea, has attracted a sentence within the ambit of a properly principled sentencing exercise.

47 HIDDEN J: I agree with the orders proposed by Hall J and generally with his Honour’s reasons. As to ground 1, I do not find it necessary to determine whether her Honour had impermissible regard to the strength of the Crown case in evaluating the applicant’s pleas of guilty, although I agree with Hall J’s exposition of the relevant principles. As to ground 2, I gratefully acknowledge his Honour’s analysis of more or less comparable cases. I am of the view that the sentence proposed by his Honour properly reflects the gravity of the importation offence, while affording appropriate weight to the applicant’s plea of guilty.

48 HALL, J: The applicant, by his application dated 19 May 2005, seeks leave to appeal in relation to a sentence imposed on him by the District Court (then her Honour Judge Latham) on 5 November 2005. The sentence related to two offences:-

(a) An offence under s.233B(1)(b) of the Customs Act 1901 (Cth) . The particulars of the charge in this respect related to a gross amount of cocaine imported by the applicant of 3,025.5 grams containing an amount by pure weight of 2,136.8 grams. The prohibited drug had an estimated street value at the date of importation of approximately $854,000. Conviction for a penalty under s.233B(1)(b) attracts a maximum penalty of imprisonment for life.

(b) An offence under s.9A(1)(f)(i) of the Passports Act 1938 (Cth) . Particulars of the charge relate to the falsification of an Irish passport utilised by the applicant to gain entry to this country upon his arrival at Sydney Airport on Monday 24 May 2004. The offence, upon conviction, attracts a penalty of imprisonment of two years.

49 The applicant entered pleas of guilty to the two charges before a Local Court Magistrate on 4 August 2004. One issue in the present application is the appropriate discount for the early pleas of guilty, having regard to the guideline judgment in Regina v. Thomson & Houlton (2000) 49 NSWLR 383.

50 The applicant was sentenced to imprisonment on the cocaine importation charge for 14 years with a non-parole period of 8½ years and on the falsified passport charge for one year, the latter sentence being imposed as a fixed term concurrent sentence with the importation charge.

51 The application for leave to appeal is supported by two grounds set out in the applicant’s grounds of appeal as follows:-

1. Her Honour erred in that she did not give an adequate discount for the applicant’s early plea of guilty.
2. The sentence imposed was manifestly excessive.

The salient facts

52 The facts concerning the illegal importation of the prohibited drug and the use of the false passport have been fully set out in the judgment of Sully, J. It is unnecessary for me here to further detail the salient facts constituting and surrounding the offences for which the applicant was charged and to which he entered guilty pleas.

53 I will, accordingly, shortly turn to consider each of the grounds for the application. However, before doing so, I record some preliminary matters that guide the approach taken in this judgment.

Preliminary matters

(i) The gravity of the offence

54 There can be no doubting the gravity and seriousness of the offences to which the applicant entered pleas of guilty. In particular, the applicant’s contravention of s.233B(1)(b) of the Customs Act represents yet another strand in the evil and pernicious activity inherent in the importation of drugs into this country, in this case by a foreign national. The individual and social devastation that results from the trade and consumption of narcotics, including, in particular, the prohibited drug cocaine, is so well established as not to require further emphasis in this judgment. In sentencing in relation to such offences, the need for both personal and general deterrence looms large. I accept entirely, in relation to the criminal importation of prohibited drugs, that nothing less than a principled assessment of criminality is required and that such should not be swamped by subjective circumstances lest otherwise weakly indulgent views prevail.

55 This approach mandates in the present application that a proper assessment of the applicant’s criminality be approached, not in a vacuum, but by reference to relevant criteria. It is to such criteria that I now turn.

(ii) The judicial method in sentencing

56 In affirming the instinctive synthesis approach to sentencing, the High Court in Regina v. Markarian (2005) 79 ALJR 1048 (Gleeson, CJ., Gummow, Hayne and Callinan, JJ. at 1055) recently observed that, in sentencing:-

• the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached.

• There is no single correct sentence.

• The judge at first instance is to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

57 In Markarian, McHugh, J. (who concurred with the majority) referred to the human judgment involved in sentencing as being one based on all the facts of the case, the judge’s experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes and authoritative judgments (at 1065).

58 In determining the present application, accordingly, regard and consideration is to be given to:-

(a) the provisions of s.16A of the Crimes Act 1914 (Cth) ;

(b) the patterns of sentence considered in Regina v. Wong (1999) 48 NSWLR 340;

(c) the guideline judgment in Thomson & Houlton (supra);

(d) comparable sentences or sentencing patterns in other cases with respect to offences arising under s.233B(1)(b) of the Customs Act (with appropriate caution and adjustment for factual and other variations). To this end, I set out later in this judgment a table containing particulars of sentences for reference as a sentencing pattern guide or yardstick.

(iii) A sentencing range

59 It is important in this application in relation to the offence under s.233B(1)(b) to determine, if possible, the relevant range of sentences that reasonably fit all the circumstances of this case and to then determine where within that range the appropriate penalty for the offence committed by the applicant lies. Whilst, in the nature of offences associated with importation of narcotic offences there is no ready and precise measure by which the appropriate penalty is to be determined, discretionary sentencing, nonetheless, is not a blunt instrument. It requires a degree of assessment, if possible, within a relevant and accepted range of sentences derived from the applicable guideline judgment and other authoritative judgments and with due regard to the objective gravity of the offence amongst other factors.

(iv) The principle of proportionality

60 The range of sentences for the purposes of the present application may be established in the manner discussed below. The somewhat more difficult task is to determine where within that range this case fits. In making that determination, the principle of proportionality, most recently discussed by McHugh, J. in Markarian (supra) at 1064, has application:-

“The principle of proportionality is one of the fundamental principles of sentencing law. … The principle … requires the judge to make a judgment concerning the relationship of the penalty to the facts. This is a value judgment based on experience and instinct, derived from taking into account all of the facts and circumstances of the case. …”

61 Later, at p.1067, McHugh, J. added:-

“… in Veen (No. 2 ), as I have indicated, this Court affirmed the ultimate control on the judicial sentencing discretion is the requirement that the sentence be proportionate to the gravity of the offence committed. In pursuit of other sentencing purposes, a judge may not impose a sentence that is greater than is warranted by the objective circumstances of the crime. Both proportionality and consistency commonly operate as final checks on a sentence proposed by a judge. They guard against hidden errors in the process, the kind later identified on appeal as manifest excess or leniency in accordance with the principles in House v. The King …”

62 In determining the appropriate relationship of the penalty to the facts in this application, the principle of proportionality is served by particular regard being given to the objective facts as established by the evidence and the findings made by the sentencing judge as well as to the provisions of s.16A of the Crimes Act 1914 (Cth) and authoritative and relevant sentencing patterns.

(v) Sentencing patterns: low range commercial quantity

63 It is generally accepted that sentences in comparable matters may, with appropriate caution, be of some utility in determining the appropriate sentence in relation to an offence under s.233B(1)(b) of the Customs Act. That said, however, the number of comparable sentences for such offences are limited. In Regina v. Bernier (1998) 102 A. Crim. R. 44 (a case involving importation of cocaine at the lower end of the commercial range), this Court (Smart, Studdert and Hidden, JJ.) examined cases including those dealing with traffickable quantities only insofar as they may be of some assistance in determining a range for low commercial quantities. Of the latter, it was noted that there were few cases. I will refer to later cases in the table of cases appearing in this judgment. The Court in Bernier observed that inevitably, there will be some overlap between the top of the traffickable range and the bottom of the commercial range (at p.48). Reference was also made in that case to a number of earlier decisions, which sought to recognise a “tariff” for couriers of commercial quantities of cocaine.

64 Although decided now some years ago, this Court in Bernier referred to the wide discretion of a sentencing judge whilst regretting that there were insufficient cases involving low range commercial quantities for a pattern of sentencing to have emerged. The Court referred to the fact, as had been submitted to it, that this was probably due to the fact that the importation of commercial quantities is fairly rare because of the difficulty of concealing significant amounts of a drug. For the same reason, when imported drugs exceed the commercial quantity, they would usually be towards the bottom of that range (at p.3).

I will return to discuss the question of sentencing patterns in cases of cocaine importation involving low range commercial quantities.

Ground 1: Her Honour erred in that she did not give an adequate discount for the applicant’s early plea of guilty

65 In the sentencing judge’s remarks on sentence, the only reference to the applicant’s pleas of guilty appears at p.7 of the remarks on sentence. I consider that it is appropriate to extract from them the whole of the relevant passage which provides the context against which to consider Ground 1:-

“I reject the submission that the prisoner was a mere courier in the sense that he played no part in the organisation of the importation. His role in the commission of this offence indicates a greater level of criminality than the naïve recruit the prisoner would have the Court accept. What position in the hierarchy of importation the prisoner occupied cannot be determined, but that should not deflect the Court from assessing the prisoner’s criminality on the basis of the available evidence. The available evidence signals a level of criminality of a reasonably high order. The prisoner’s pleas of guilty amount to a recognition of the inevitable, albeit they indicate a willingness to facilitate the course of justice . His belated information to police on 30 September 2004 could not be said to provide anything in the way of meaningful assistance for the purposes of justifying a discount on the sentence otherwise appropriate to the commission of these offences. The limited information provided on that day is only of potential worth, assuming the prisoner’s version of events surrounding the importation is credible. I have already indicated my assessment on that score …” (emphasis added)

66 The applicant’s written submissions focus upon the sentencing judge’s remarks on sentence the particular statement which has been highlighted in the above extract.

67 The submissions observe that the plea of guilty was entered at the earliest possible opportunity (before the Local Court) and was adhered to after the applicant was committed for sentence. The applicant’s criticisms essentially are:-

• That the sentencing judge did not quantify the discount for the plea of guilty and that the discount should have been 25%.

• That the sentencing judge erred in referring to the strength of the Crown case in the context of the utilitarian value of the plea: Regina v. Castles [2005] NSWCCA 79. The alleged error is said to be revealed by the statement made that the applicant’s plea of guilty amounted to a “recognition of the inevitable” .

68 In relation to the first of these two points, in the guideline judgment of this Court in Thomson & Houlton (supra) at 419, Spigelman, CJ. enunciated the guidelines applicable to offences against State laws with respect to discounts for a plea of guilty including, in particular the following:-

(a) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(b) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so.

69 The Crown submitted that the guideline judgment in Thomson & Houlton does not apply to Commonwealth offenders but it did acknowledge the judgment of this Court in Regina v. Bugeja (2001) NSWCCA 196 at [24] and submissions proceeded upon the basis that the approach indicated in the Thomson & Houlton guideline judgment was generally appropriate for consideration in this case.

70 In relation to the sentencing judge’s comments which I have extracted above, I note the following:-

• Whilst there is reference to “the applicant’s pleas of guilty” , there is no specific reference to or acknowledgment of the early nature of the pleas;

• There is no express statement by the sentencing judge that the pleas of guilty had been taken into account;

• Although the sentencing judge did not quantify the effect of the pleas in this case on the sentence imposed, there was no obligation upon her to do so.

71 In Regina v. Speer [2004] NSWCCA 118, a not dissimilar point arose. The sentencing judge had only made passing reference to the appellant’s plea of guilty but only as a recitation of the history of the matter. There was no reference from which one could determine the extent to which the plea had been taken into account in favour of the appellant. The Court in that case observed at [13]):-

“… as was stated in Regina v. Thomson; Regina v. Houlton (1999-2000) 49 NSWLR 383, this can be indicative of the plea not being given weight (supra) at 419, paragraph 160.”

72 A reading of that portion of the remarks on sentence which have been extracted above, seen in context, does not admit of a conclusion, in my opinion, that her Honour simply overlooked or forgot the early nature of the pleas of guilty. In this respect, I believe that the additional words “… albeit they indicate a willingness to facilitate the course of justice” does reflect her Honour’s recognition of the pleas of guilty and their significance.

73 Additionally, the remarks on sentence (p.8) record that the “features referred to under s.16A” along with the objective and subjective circumstances were taken into account in the sentence determination. There is no precise identification as to which of the 13 matters set out in s.16A(2) were considered relevant. However, on the facts established in evidence and otherwise accepted I am of the opinion that the sentencing judge was, amongst other matters, adverting to subparagraph (g) of s.16A(2), namely, the fact that the applicant “has pleaded guilty to the charge in respect of the offence”.

74 There is, as noted, no express statement by the sentencing judge as to what discount was in fact applied. I have closely examined the remarks on sentence to determine whether or not a reader of the remarks on sentence may imply whether a discount of or approaching 25% was allowed. I am of the opinion that there is no basis for such an implication. That does not, of course, foreclose the possibility that a discount of that order was in fact given.

75 In Thomson & Houlton (supra), Spigelman, CJ. observed at [162] that the purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. The importance of a transparent articulation of the relevant considerations underpinning the synthesising task generally referred to in Markarian (supra) per McHugh, J. at 1066 and 1067, is, similarly in my opinion, especially important, as a matter of approach, when a sentencing judge is dealing with the application of a discount for an early plea.

76 The Crown in its written submissions observes that, in the case of a Federal offender, it is the willingness of the offender to facilitate the course of justice, the acceptance of responsibility and the expression of contrition, that are each conveyed by a plea which gives rise to an entitlement to a discount for that factor: Regina v. Cameron (2002) 209 CLR 339. Whilst acknowledging this important principle, the question remains as to how one can determine what discount was applied in the present proceedings.

77 In the circumstances, I consider that this matter should be approached in the following way:-

(a) The sentencing judge did, as I have earlier stated, acknowledge the applicant’s pleas of guilty in the context which suggests that the pleas were taken into account.

(b) There being no basis upon which it can be determined from the terms of the remarks on sentence what discount was or was not allowed, the question is one best examined and answered in the context of Ground 2 considered below.

78 I turn to the second criticism, namely, that her Honour erroneously took into account the strength of the Crown’s case in assessing the applicant’s pleas of guilty.

79 Whilst I have expressed the opinion that the highlighted sentence in the remarks on sentence extracted above are fairly to be construed as a reference and an acknowledgement by the sentencing judge of the significance of the applicant’s pleas of guilty, the very same sentence does contain within it the further point of criticism that has been raised on behalf of the applicant, namely, that the reference to the pleas of guilty as amounting “to a recognition of the inevitable” contravenes the relevant sentencing principle. That particular phrase is a familiar one, having been employed by Hunt, CJ. at CL. in Regina v. Winchester (1992) 58 A. Crim. R. 345 at 350 and by his Honour in Regina v. Bishop (Court of Appeal, unreported 23 September 1996) (extracts from his Honour’s judgments may be seen in the judgment of Spigelman, CJ. in Thomson & Houlton (supra) at 416).

80 In both cases, Hunt, CJ. at CL. used the phrase in reference to the strength of the Crown case in relation to the contrition element of the leniency in sentencing evidenced by a plea of guilty. The use of the phrase by the sentencing judge in the sentence reproduced, I believe, is similarly to be taken as a reference to the strength of the Crown case. However, that reference to the strength of the Crown’s case appears in the context of the applicant’s pleas of guilty, but without reference to its use in evaluating the contrition element, there being no specific evidence or reference to any contrition being expressed by the applicant.

81 The applicant’s written submissions refer to the often quoted observations of Howie, J. in Regina v. Sutton [2004] NSWCCA 225 in which his Honour emphasised that the strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence and that it is an irrelevant factor in determining the utilitarian value of a plea of guilty.

82 In the Crown’s written submissions it is suggested that the juxtaposition in the remarks on the sentence between the reference to the strength of the Crown case and the reference to the offender’s willingness to facilitate the course of justice militates against the conclusion that her Honour was detracting from the discount for the plea of guilty by emphasising the strength of the Crown case. A consideration of the point leads me to the firm conclusion that the Crown’s submission in this respect should not be accepted. The specific reference to the “recognition of the inevitable” is expressly linked to the applicant’s pleas of guilty. However, any error in this respect does not, of course, necessarily lead to the conclusion that it ultimately means that her Honour took the approach of allowing too low a discount for the early pleas. That said, however, the statement itself does provide a reason to believe that the strength of the Crown case may have played a part in whatever discount was given.

83 On this basis, the possible influence or effect of the strength of the Crown case to the ultimate sentence imposed for the offence under s.233B(1)(b) of the Customs Act 1901 (Cth) should, in my opinion, be assessed together with the first point identified earlier in this judgment with Ground 2 of the application.

Ground 2: the sentence imposed was manifestly excessive

84 The starting point in the consideration of this ground to the application are the findings of fact made by the sentencing judge in her remarks on sentence. In relation to the objective gravity of the offence under s.233B(1)(b) of the Customs Act 1901 (Cth) the relevant factors identified included:-

(a) the weight of the cocaine, the subject of the prohibited importation, particulars of which are set out in the first paragraph of this judgment;

(b) the street value of the cocaine;

(c) the offence indicates a greater level of criminality than the naïve recruit suggested by the applicant;

(d) what position in the hierarchy of importation the applicant occupied could not be determined;

(e) the importation by the applicant was not an unsophisticated importation;

(f) the available evidence signalled a level of criminality of a reasonably high order.

85 The subjective factors included the following:-

(a) the applicant’s was aged 28 years at the date of sentence.

(b) the absence of any criminal record in this country and, on the evidence, the absence of a criminal record in South Africa;

(c) at the time he claimed he was approached to participate in the prohibited importation, the applicant was without means and was effectively living in a shelter;

(d) the sentencing judge accepted that this was the applicant’s first custodial sentence and his first experience of a custodial setting.

86 I set out below a table which provides particulars in relation to the applicant’s sentence and sentences imposed in other cases with respect to contraventions of s.233B(1)(b) and (d) of the Customs Act 1901 (Cth):-

Table of sentences

Offence Drug/ Role Discounts Original Sentence

Otto	s.233B(1)(b) Customs Act1	Cocaine 3,025.5 g (gross weight) 2,136.8 g (pure weight) Low range commercial quantity (R. v. Wong (1999) 48 NSWLR 340, 366)	Not a mere courier. Criminality of a reasonably high order	For guilty plea	14 years 8½ years (non-parole)	10 years 7 years (non-parole)
Mascaro- Varillas [2002] NSWCCA 524	s.233B(1)(d) Customs Act (knowingly concerned in importation)	Cocaine 2,969 g (pure weight) Est. street value of $406,000 to $528,380	Principal and no stranger to drug operation	Extradited to Australia. Guilty plea 17.2.2000	15 years 11 years (non-parole) [reflected 1/3 off head sentence 20-24 years, ie., 14-16 years for a principal – s.16G]	15 years 10 years (non-parole)
Speer [2004] NSWCCA 118	s.233B(1)(b) Customs Act	Heroin 3,468 g (gross weight) 2,541 g (pure weight)	Low level “a fairly low level” involvement – not a bare courier	Guilty plea (made quite late, 10% discount), also for youth, contrition, lack of criminal record etc., 25 years old	16 years 10 years (non-parole)	9 years 6 years (non-parole)
Gey-Houn Ra [2002] NSWCCA 251	Knowingly concerned with importation of narcotics	Heroin10,000 g (gross weight) 5,689 g (pure weight). Est. street value $11.3 m	Major participant in position to recruit	Guilty plea (10%). No evidence given by applicant	15 years 10 years (non-parole)	15 years 10 years (non-parole)
Gallego [2002] NSWCCA 329	s.233B(1)(b) Customs Act	Cocaine 1,676 g (gross weight) 1,114.9 g (pure weight) (high range traffickable quantity – R. v. Wong (1999) 48 NSWLR 340, 366	Courier	Guilty plea	8½ years 5½ years (non-parole)	8½ years 5½ years (non-parole)
Pereira (1991) 57 A. Crim. R. 46	2.233B(1)(b) Customs Act Import commercial quantity (6.094 kg cocaine) and possession of traffickable quantity, being 1.422 kig of cocaine	Cocaine Ie., three times commercial quantity	Principal in scheme of importation and actively recruited participation of three persons	Guilty plea	10 years 6 years (non-parole)	13 years – 1st count concurrent with 6 years, 6 months and 2nd count (aggregate non-parole period fixed of 8 years, 6 months as was also guilty of possession)
Bernier (1998) 102 A. Crim. R. 44	s.233B(1)(b) Customs Act	Cocaine 3,600 g (gross weight) 2,045 g (pure weight) Retail value of $800,000 approx.	Courier Canadian National, 47 years of age. History of drug abuse	Guilty plea Offender was addicted to drugs, no prior convictions	12 years 7½ years (non-parole)	9 years 5½ years (non-parole)
Jiminez [1999] NSWCCA 7	s.233B(1)(b) Customs Act	Cocaine 3,010 g (pure weight)	Courier	Guilty plea Some assistance with authorities also suffered from mental condition	12 years 6 years, 8 months (non-parole)	9 years 6 years (non-parole)
Ferrer- Esis (1991) A. Crim. R. 23 (Crown appeal)	s.233B Customs Act (Offence of having in possession without reasonable excuse a quantity of cocaine in excess of the traffickable quantity which had been imported into Australia)	Cocaine 1,819.8 g (pure weight)	Courier	6 years 3½ years (non-parole)	9 years 5 years (non-parole)
Banthith- adawit (CCA, 8 April 1994)	s.333B Customs Act Import heroin	Heroin 2,775 g (gross weight) 2,128 g (pure weight)	Courier	Guilty plea	12 years 8 years (non-parole)	12 years 8 years (non-parole)
Sugahara, Watanabe (CCA, 16 October 1998)	s.233B Customs Act Import heroin	Heroin Watanabe – 2,106 g (gross weight) 1,511.2 (pure weight) Sugahara – 1,511.46 g (pure weight)	Couriers	Both pleaded guilty Both gave assistance to authorities (a reduction of 6 months was given)	Watanabe – 11½ years 7½ years (non-parole) Sugahara – 10 years (non-parole)	Watanabe – 10 years 6 years (non-parole) Sugahara – 9½ years (non-parole)

87 The most recent case involving a drug importation of a commercial quantity (post the repeal of the provisions of s.16G of the Crimes Act 1914 (Cth) by the Crimes Legislation Amendment (People Smuggling, Firearms, Trafficking and Other Measures) Act 2002 is Regina v. Speer [2004] NSWCCA 118. I will later refer to sentences at the higher end of the relevant range of sentences involving principals or major participants. Speer falls at the lower end of the relevant range of sentences and I will deal, firstly, with the sentencing outcome in that case.

88 In Speer, the salient facts were:-

• The applicant appealed against a sentence of imprisonment of 16 years with a non-parole period of 10 years.

• At the time of the offence, the applicant was aged 25 and had no previous convictions.

• The offence to which the applicant pleaded guilty was importing narcotic drugs consisting of a quantity of heroin that was not less than the commercial quantity applicable to such drug. The gross weight of heroin imported was 3.468 kilograms which produced 2.5411 kilograms of pure heroin (a commercial quantity of heroin was fixed at 1.5 kilograms by Schedule VI of the Customs Act 1901 (Cth) ).

• The maximum penalty imposed by the Act for such an offence was a fine of $750,000 or imprisonment for life or both.

• The street value of the quantity of heroin was estimated at between $750,000 and $9.034 million (the wide variation being explained on the basis of the price per ounce used to determine such value was widely variable).

• It was clear from the evidence that the applicant was not involved in the illegal enterprise involving the heroin otherwise than bringing it, by arrangement and for monetary reward, into Australia.

• It was common ground that the applicant’s involvement was at “a fairly low level” .

• This Court proceeded upon the basis that the applicant was a courier at a fairly low level of involvement in the criminal enterprise and therefore the re-sentencing took that fact into account.

• The sentencing judge’s reference to the plaintiff’s plea of guilty was no more than a recitation of the history of the matter and did not suggest what, if any, discount was allowed in respect of the plea.

• The plea was not a plea at the earliest date.

• Assuming a bottom of the range discount for a late plea of guilty, the Court inferred that the commencing sentence taken by the sentencing judge must have been higher than the sentence of 16 years imprisonment imposed on the appellant and would have been in the order of 18 years.

89 In determining the extent to which the approach taken by this Court in Speer (supra) may provide some guidance for the present matter, specific allowance must be made for three factors:-

• The fact that, on the sentencing judge’s findings in the present case, the applicant’s criminality must be regarded as somewhat higher than in Speer . Although the applicant’s position in the hierarchy of importation could not be determined on the evidence, the finding as to the applicant’s criminality suggests that it is to be regarded as higher than that of a mere courier.

• The applicant in Speer did not have the benefit that attaches by way of discount for an early plea as in the present case. A discount of 10% was allowed by this Court when re-sentencing Speer .

• The weight of the cocaine in the present matter (3,025.5 grams, gross weight and 2,136.8 grams, pure weight) is less than the quantity of heroin imported in Speer (3,468 grams, gross weight and 2,541 grams, pure weight) (that is, the pure weight was 15.9% more in Speer than in the present case).

90 In the present context, it is appropriate to refer to sentencing patterns considered in Regina v. Wong (1999) 48 NSWLR 340 at 366. Spigelman, CJ. observed that these were determined primarily on the basis of existing sentencing patterns and were intended to apply to couriers and persons low in the hierarchy of the importing organisation.

91 In Wong, the range for low range commercial quantity (2 - 3.5 kilograms – cocaine) set out in the judgment of Spigelman, CJ. specified a sentencing range of between 8 to 12 years. Aside from the repeal of s.16G, there is an issue which I will discuss below as to whether the applicant can be regarded as a person low in the hierarchy of the importing organisation. If not, then the low range commercial quantity in Wong would strictly not apply.

92 Subject to the last point, the range of sentences set out in Wong at [142] may still operate as a useful guide for sentences imposed for offences of this nature, prior to the repeal of s.16G: see Regina v. Mas Rivadavia (supra) at [65]. The Crown’s written submissions refer to the relevant decisions concerning the appropriate manner in which the repeal of s.16G is to be taken into account: see Regina v. Studenikin (2004) 60 NSWLR 1 at [71] per Howie, J. (with whom Grove, J. and Newman, AJ. agreed); Regina v. Dujeu (2004) 146 A. Crim. R. 123 at [43] per Smart, AJ. (with whom Hislop, J. agreed); Mas Rivadavia (supra) at [76] per Wood, CJ. at CL. (with whom Adams, J. and Smart, AJ. agreed) and Regina v. Bezan (2004) 147 A. Crim. R. 430 at [18] per Wood, CJ. at CL. (with whom Buddin and Shaw, JJ. agreed).

93 In applying the range of sentences set out in Wong in appropriate cases, it is accordingly necessary to make the appropriate upward adjustment of the sentences identified by this Court in that case.

94 The Crown accepted in its submissions that, if the applicant in fact received a discount for his plea of guilty at the maximum of 25%, then the starting point for the learned sentencing judge would have been a sentence of imprisonment of approximately 18 years and 6 months. Whilst the Crown submits that such a starting point is within the appropriate range for the offence for which the applicant was sentenced, I do not consider that reference to the approach taken in other cases and as reflected in the table of cases set out above supports that submission.

95 A finding as to an offender’s position or place in the hierarchy of a narcotic drug importation operation can, of course, be important in determining the objective gravity of an offence. However, as the High Court has observed, the utility of an exercise in endeavouring to categorise the role of an offender is necessarily limited by the extent to which material facts are known: Regina v. Olbrich (1999) 199 CLR 179, 278. The High Court in Olbrich observed that s.16A(2)(a) of the Crimes Act 1914 (Cth) requires a sentencing judge to take into account, so far as “known to the court”, the nature and circumstances of the offence. Often, as the Court there observed, where there is a plea of guilty and the offence has its genesis outside this country, it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia.

96 The finding made in this case “a greater level of criminality than the naïve recruit” and the sentencing judge’s observation that it was not possible to determine the applicant’s role or position in the hierarchy of importation, I believe, leads to the conclusion either that the applicant was at a “fairly low level” in the hierarchy (for the terms of the finding itself do not, as a matter of interpretation, necessarily preclude such a categorisation) or at a level somewhat higher than that but well short of that of a principal or of what was described in Regina v. Mas Rivadavia (supra) as “the principal’s lieutenant”.

97 It is, however, of some utility to undertake a comparative assessment of the sentence in this case in light of the sentences at the high end of the relevant range involving principals and major participants. In Regina v. Gey-Houn Ra [2002] NSWCCA 251, the applicant pleaded guilty to a charge of knowingly being concerned with the importation of a quantity of heroin into Australia (s.233B(1)(d) Customs Act 1901 (Cth). The gross weight was 5.689 kilograms of pure heroin (slightly in excess of five times the minimum commercial quantity). The street value was in excess of A$11 million. The maximum penalty for the offence was/is imprisonment for life. O’Keefe, J., with whom Spigelman, CJ. at Simpson, J. agreed, referred to the sentencing judge’s findings to the effect that:-

• The applicant was not a mere courier – he was a willing participant and was in a position to recruit others.

• Electronic surveillance material established that his conversation revealed his knowledge of precisely the nature of his task. He was “a serious and important player” .

98 This Court characterised the applicant in that case as “a major participant” in a very large importation. He did not give evidence and gave no assistance to the investigating officers. The sentence was 15 years imprisonment with a non-parole period of 10 years. The appeal against that sentence was dismissed.

99 In Regina v. Mascaro-Varillas [2002] NSWCCA 524, the applicant was sentenced to imprisonment for 15 years with a non-parole period of 11 years. He was charged with being knowingly concerned in the importation into Australia of 2.969 kilograms of cocaine under s.233B(1)(d) of the Customs Act 1914 (Cth).

100 There was a dispute as to the applicant’s role but Smart, AJ., with whom Wood, CJ. at CL. and Howie, J. agreed, stated it was clear that he was a principal in the organisation of the importation of the cocaine and was “no stranger to drug operations …” (at [57]).

101 The table of sentences set out above, including, in particular, the sentence in Speer and sentences that have been extracted into the table at the “high” end, even when allowance is made for the repeal of s.16G, provide some guidance in giving effect to the principle of proportionality as discussed by McHugh, J. in Markarian (supra) and to which I have referred in the preliminary matters discussed earlier in this judgment.

102 The information on sentencing patterns to which I have referred assists in arriving at the conclusion which I have otherwise reached, namely, that the sentence imposed in this matter was manifestly excessive. The possible failure to give full effect to a discount of 25% or a discount of that order which I consider to be appropriate could well explain the sentencing result from which the applicant seeks leave to appeal. Whether specific or patent error in this respect can be said to exist, is not a matter that calls for a definitive conclusion, given the fact that the sentence may, as I have concluded, otherwise be determined as manifestly excessive under Ground 2.

103 In determining the appropriate sentence in this case, I consider the following factors, in particular, to be relevant:-

• As the High Court observed in Regina v. Wong (2001) 207 CLR 584 at 609, the “particular weight” of narcotic involved can have significance in fixing the sentence to be imposed on an offender;

• The amount of cocaine by pure weight is a little over the lower end of the low range commercial quantity referred to in Regina v. Wong (at 142).

• Appropriate adjustments to that sentencing pattern need to be made to take into account the level of criminality determined by the sentencing judge.

• The relevant subjective factors are similar though not identical to those that existed in Speer .

• Sentences imposed in other cases involving contravention of s.233B(1)(b) of the Customs Act 1901 (Cth) at the higher end of the range for principals and major participants are of some use in assessing the upper point for a case such as the present given that on the evidence the offender was neither a principal nor a major participant.

• A discount of 25% was appropriate for the applicant’s early pleas.

104 On the above approach and, in particular, giving due weight to the gravity of the offence under s.233B(1)(b) and the matters to which I have earlier referred, I consider that a commencing sentence, that is, a sentence which would appropriately be imposed in the present case without any discount for the utilitarian value of the plea, would have been a sentence of 14 years imprisonment. The appropriate discount for the applicant’s early pleas of guilty being 25% would result in a sentence of 10 years and 6 months as a head sentence. I consider that a non-parole period of 7 years to be an appropriate period.

105 I accordingly am of the opinion that the sentence imposed should be quashed and the following orders made:-

(a) Leave to appeal granted in respect of the offence against s.233B(1)(b) of the Customs Act 1901 (Cth) .

(b) The sentence imposed in respect of that offence be quashed.

(c) In lieu thereof, the applicant be sentenced to imprisonment for 10 years and 6 months commencing on 24 May 2004 and expiring on 23 November 2014, with a non-parole period of 7 years, commencing on 24 May 2004 and expiring on 23 May 2011.

(d) The earliest date, accordingly, that the applicant will be eligible for release on parole is 23 May 2011.

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IN THE COURT OF
CRIMINAL APPEAL

23/09/2005	-	published draft version in error -replaced with final - Paragraph(s) all pars replaced
24/11/2005	-	- Paragraph(s)