R v Riddell - [2009] NSWCCA 96

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Regina v Riddell [2009] NSWCCA 96

FILE NUMBER(S):
2008/6125

HEARING DATE(S):
3 March 2009

JUDGMENT DATE:
8 April 2009

PARTIES:
Regina (Appellant)
Ryan RIDDELL (Respondent)

JUDGMENT OF:
Beazley JA Blanch J Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0324

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

LOWER COURT DATE OF DECISION:
26 September 2008

COUNSEL:
W Abraham QC (Appellant)
R Richter QC (Respondent)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Appellant)
Gregory J Goold (Respondent)

CATCHWORDS:
CRIMINAL – sentencing – appeal against the inadequacy of sentence – criminal acts performed under the threat of duress – does not negative the need to impose a sentence that reflects general deterrence
CRIMINAL – sentencing – two offences involving different quantities of the same drug – relevance of quantity of drug to sentencing

LEGISLATION CITED:
Criminal Code Act 1995 (Cth), ss 11.1, 307.5(1), 314.4

CATEGORY:
Principal judgment

CASES CITED:
Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Cameron v R [2002] HCA 6; (2002) 209 CLR 339; 187 ALR 65
DPP (Cth) v El Karhani (1990) 97 ALR 373 at 380; (1990) 21 NSWLR 370 at 377; (1990) 51 A Crim R 123 at 130
James v Regina [2009] NSWCCA 62
Johnson v R [2004] HCA 15; (2004) 205 ALR 346
Markarian v R [2005] HCA 25; (2005) 215 ALR 213
Nguyen v R [2008] NSWCCA 280
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Budiman (1998) 102 A Crim R 411 at 416;
R v Chen & Ors [2002] NSWCCA 174
R v Chun Hing Law [2002] NSWSC 952
R v Israil [2002] NSWCCA 255
R v Janceski [2005] NSWCCA 288
R v Kevenaar [2004] NSWCCA 210; 148 A Crim R 155
R v Klein [2001] NSWCCA 120; (2001) 121 A Crim R 90
R v Liu [2005] NSWCCA 378
R v MD, BM, NA, JT [2005] NSWCCA 342; 156 A Crim R 372
R v Muanchukingkan (1990) 52 A Crim R at 359
R v Stanbouli [2003] NSWCCA 355
R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1; 147 A Crim R 1
R v To Si Thanh [2007] NSWCCA 200; 172 A Crim R 121
R v Wall [2002] NSWCCA 42
R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531
Regina v Thanh Hai Nguyen Regina v Van Hau Pham Regina v Kam Pui To Regina v Huy Quang Vu [2004] NSWSC 144
Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247;173 A Crim 458
Wong v R [2001] HCA 64; 207 CLR 584

TEXTS CITED:
R G Fox and A Freiberg, “Sentencing: State and Federal Law in Victoria”, (1999) Oxford University Press.

DECISION:
1 Appeal allowed;
2. Set aside the orders made by Finnane DCJ on 26 September 2009 and impose the following sentences:
Count 1: A sentence of 9 years commencing on 16 June 2007 and expiring on 15 June 2016;
Count 2: A sentence of 10 years 6 months commencing on 16 December 2007 and expiring on 15 June 2018.
Specify a non-parole period of 7 years to date from 16 June 2007 and to expire on 15 June 2014.

JUDGMENT:

- 35 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/6125
BEAZLEY JA
BLANCH J
HOWIE J
8 April 2009

R v Riddell

Headnote

The respondent, a Canadian national in Australia on a 6 month visa, pleaded guilty to attempting to possess 3.877 kg of pure cocaine and possessing 8.080 kg of pure cocaine, contrary to the Criminal Code Act 1995 (Cth) (the Code), ss 307.5(1) and 11.1. The offences related to the importation of 10 shipments of cocaine. The respondent was arrested after a controlled Australian Federal Police operation. He was sentenced to a term of imprisonment of 9 years, with a non-parole period of 5 years for each offence. The sentences were ordered to be served concurrently.

In sentencing the respondent, the trial judge likened the respondent’s role in the drug importation to that of a “storeman”. He found that the respondent was not to be treated as “a major criminal” for the purpose of sentencing. His Honour took into consideration the respondent’s claim that he did not receive any financial benefit for his participation in the importation but that he had only agreed to become involved following threats he had received from persons in Canada.

The Crown appealed against sentence on the ground that the sentences imposed were “manifestly inadequate”. The Crown also relied on the following express errors by the trial judge in the sentencing process: (1) his assessment of the criminality of the respondent’s conduct; (2) his order that the sentences be served concurrently; (3) his failure to adequately reflect the element of general deterrence; and (4) his placement of undue weight on matters personal to the respondent.

Held

Per Beazley JA (Blanch and Howie JJ agreeing):

Did the trial judge err in his approach to the sentencing process?

The questions whether an error has been made in making sentences concurrent and whether a trial judge has correctly assessed an accused person’s criminality will affect the question whether the sentences imposed, in totality, were manifestly inadequate: [30].
R v Janceski [2005] NSWCCA 288 (followed)
Labels such as “courier”, “storeman” and “front” are not necessarily critical when characterising the accused person’s role in a crime for the purpose of imposing sentence. Rather, it is the objective features of the activities undertaken by the accused person, including the position of authority that person held in the organisational hierarchy, that is relevant to the sentencing process: [40]
R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531 (followed)
An accused person’s engagement in criminal activity under duress does not negate the need to impose a sentence that reflects general deterrence: [84]
DPP (Cth) v El Karhani (1990) 97 ALR 373; (1990) 21 NSWLR 370; (1990) 51 A Crim R 123 (considered)
R v Budiman (1998) 102 A Crim R 411 (considered)
R v Chen & Ors [2002] NSWCCA 174 (considered)
R v Cheung Wai Man & Ors (Supreme Court of New South Wales, Sully J, 22 March 1991, unreported) (considered)
R v Chun Hing Law [2002] NSWSC (considered)
R v Israil [2002] NSWCCA 255 (considered)
R v Klein [2001] NSWCCA 120; (2001) 121 A Crim R 90 (considered)
R v Liu [2005] NSWCCA 378 (followed)
R v Muanchukingkan (1990) 52 A Crim R 354 (considered)
R v Stanbouli [2003] NSWCCA 355 (considered)
Radich [1954] NZLR 86 (considered)
Regina v Thanh Hai Nguyen Regina v Van Hau Pham Regina v Kam Pui To Regina v Huy Quang Vu [2004] NSWSC 144 (considered)

Were the sentences imposed “manifestly inadequate” in this case?

The trial judge erred in imposing the same sentence for the importation of approximately 4 kg as he did for the total importation of approximately 12 kg: [78].
R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531 (considered)
The non-parole period to which the respondent was sentenced for attempting to possess 3.877 kg of pure cocaine was lenient: [82]

The head sentence and the non-parole period to which the respondent was sentenced for the possession of 8.808 kg of pure cocaine were manifestly inadequate and called for appellate intervention: [82]
Nguyen v R [2008] NSWCCA 280 (considered)
R v Kevenaar [2004] NSWCCA 210; 148 A Crim R 155 (considered)
R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1; 147 A Crim R 1 (considered)
The total effective sentence imposed on the respondent is 11 years with a non-parole period of 7 years: [86]

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/6125
BEAZLEY JA
BLANCH J
HOWIE J
8 April 2009

Regina v Ryan RIDDELL

Judgment

BEAZLEY JA: On 23 April 2008, Ryan Riddell (the respondent) pleaded guilty to the following two offences:
(1)Attempting to possess cocaine: on 15 June 2007 he attempted to possess a commercial quantity of cocaine, a border controlled drug contrary to the Criminal Code Act 1995 (Cth) (the Code), ss 307.5(1) and 11.1; and
(2)Possessed cocaine: between 20 March 2007 and 16 June 2007 he possessed a commercial quantity of cocaine contrary to the Code, s 307.5(1).
The maximum penalty prescribed for each offence is life imprisonment. In this regard the Code, s 11.1 provides that an attempt to commit an offence is punishable as if the offence attempted had been committed.
In relation to the first count, the pure quantity of cocaine seized was 3.877 kg. The street value of this quantity was estimated to be between $2,215,527 and $3,101,738. The wholesale value was estimated to be $1,705,360.
In relation to the second count, the pure quantity of cocaine was 8.080 kg. That quantity of cocaine had an estimated street value of between $4,615,641 and $6,461,898. The wholesale value was estimated to be $2,163,420.
A commercial quantity of cocaine is 2 kg: the Code, s 314.4.
The respondent was sentenced by Finnane DCJ on 26 September 2008. In respect of each count, his Honour imposed a term of imprisonment of 9 years, with a non-parole period of 5 years. His Honour ordered that the sentences be served concurrently, to date from 16 June 2007, being the date the respondent first went into custody, and to expire on 15 June 2016.
The Crown appealed against the sentences imposed.
Facts of the offences
The respondent is a Canadian national, who arrived in Australia on 10 March 2007 on a six month visa. On 4 June 2007, three consignments of goods were sent from Canada to Australia using the consignment agency UPS. Each consignment was addressed to “R RIDDELL, Riddell Motorsports”. A mobile phone number and an address in Cronulla were specified. The Consignor was from British Columbia.
“Riddell Motorsports” was a non-existent entity and the mobile telephone number was a pre-paid number which was subscribed through Vodafone on 22 April 2001 to a person likely to be a non-existent person.
On 8 June 2007, a UPS delivery driver attempted to deliver the three consignments to the given address at Cronulla, by pressing the security intercom. The driver was not a regular delivery driver. No one responded and the driver returned to the UPS depot with the consignments.
The consignments were subsequently seized by the Australian Federal Police (the AFP). On examination, each consignment contained cocaine secreted into a car ballast pit. The cocaine was removed by the AFP and replaced by a substitute substance. On 15 June 2007, pursuant to a controlled operation order, an AFP officer, posing as a UPS delivery driver, telephoned the mobile number specified as part of the consignee’s address and spoke to the respondent. Arrangements were made between the AFP officer and the respondent for delivery of the three parcels to the respondent in the car park at the Cronulla address. The respondent accepted delivery of the consignments, signed a receipt for them and loaded the packages into his motor vehicle. Later that morning, the respondent placed the three packages in a Kennards Self Storage Facility at Moore Park. The respondent had rented that storage facility in his own name, but had provided a non-existent address.
Shortly thereafter, the respondent travelled to Sydney International Airport, to change his return air ticket to Canada, which was ticketed for 5 September 2007, to a ticket on the next available flight. His flight was changed to the following morning, that is 16 June 2007, at 7.35 am. The respondent was arrested as he attempted to depart Sydney on that flight.
At the time of the respondent’s arrest, a mobile telephone with the same number as the consignment; $AUD6,500; the keys to access the Cronulla unit; and a padlock key to another storage unit at Kennards Self Storage, Tempe, were found on him.
The AFP conducted a search of the Cronulla unit, the motor vehicle the respondent had hired and the Moore Park storage unit. They found the three consignments delivered to him by the AFP on 15 June 2007 within the storage unit, and in the boot of his motor vehicle found styrofoam packing identical to that used in the consignments.
On 3 July 2007, the AFP conducted a search of the Kennards storage unit at Tempe, where they located, relevantly, the following items:
(1)a padlock securing the storage unit, the key to which was in the respondent’s possession at the time of his arrest;
(2)twelve 1 kg compressed blocks of white powder in a blue sports bag;
(3)          a number of empty identical sports bags;
(4)          seventy two dismantled car ballast bars;
(5)three garbage bags containing styrofoam packing identical to that used in the consignments and the rear boot of the respondent’s motor vehicle;
(6)nine white cardboard boxes, some of which contained the consignments, with the exception of an area on the boxes the approximate size of the airway bill and shipping sticker, which had been cut and torn away;
(7)four UPS shipping stickers showing signs of being torn from the white cardboard backings all addressed to “R RIDDELL, Riddell Motorsports”;
(8)tools consistent with those required to dismantle the consignments and retrieve the drugs;
(9)a Kennards’ lease agreement signed in the name of Ryan Riddell, with a false address;
(10)        a set of electronic scales; and
(11)        cocaine on all surfaces throughout the premises.
A forensic examination of the contents of the Kennards storage unit at Tempe revealed the presence of the respondent’s fingerprints on the external parts of some of the packaging.
The Tempe Kennards’ vehicle gate log revealed that the unique gate access security pin code allocated to the respondent at the time of leasing the facility was used between 20 March 2007 and 7 June 2007, on most days, on multiple occasions. This use included the following:
a)entry, exit, then entry to the facility within only four or five minutes of the first entry;
b)multiple entries within one or two minutes of each other without exit, suggesting multiple persons were using the same security pin code to enter the facility;
c)an exit from the facility after multiple entries, suggesting multiple persons who entered separately exited at the same time; and
d)entry to the facility late at night, with a corresponding exit from the facility a number of hours later at about midnight.
The trial judge’s sentencing remarks
In his remarks on sentence, Finnane DCJ characterised the respondent’s role in Australia as being:
“… to receive consignments of goods coming from Canada to Australia and to ensure that they were placed in a safe place.”
His Honour gave definition to that classification in the following terms:
“… he was not an importer. Rather he was a person who was in this country arranging to have the goods that were sent here, taken from point of delivery to a storage facility, in fact as it turned out, to two storage facilities. He cannot be regarded as being a courier because he did not carry anything neither can he be regarded as a principal in the operation or even a manager. He can be regarded as something akin to a storeman, a person who moves goods from one place to another and keeps them safe in a store.” (Emphasis added)
Later, his Honour posed the question:
“… what should I do with someone who comes here to act as a storeman and a front?”
His Honour found that the respondent was not involved in the packing or unpacking of any of the cocaine and the first time he became aware that the packages contained cocaine was when he saw some powder that had been apparently spilled in the storage facility in Tempe. The respondent had, however, always understood that the consignments were to contain drugs, although it was his belief that it would probably be some form of hydroponic marijuana.
His Honour accepted that the respondent only agreed to become involved in the drug importation as a result of threats he received from persons in Canada who had lost money as a result of investing in a supposed land development scheme to which they had been introduced by the respondent. The respondent also lost money. It appears the scheme was being conducted by a fraudulent mortgage broker. At least some of the persons the respondent introduced to the scheme looked to him to repay the losses they incurred as a result of the broker’s disappearance. When he was unable to do so, these persons made threats against him and his family, unless he cooperated with the drug importation. The threats included death threats.
The respondent said that he did not receive any financial benefit from the importation, other than payment for his expenses (but not including personal living expenses) whilst he was in Australia. He used his own VISA card for his personal living expenses.
The respondent’s claim that he had been threatened over the mortgage broker’s default was supported by the affidavit of a Canadian lawyer, L Dale Marshall. Mr Marshall, a lawyer practising in Victoria, British Columbia, deposed that he was “a member in good standing with the Law Society of British Columbia”, of which he had been a member since 1989. He said he had been acquainted with the respondent since June 2004. The respondent consulted Mr Marshall in early 2007 about threats he had received from individuals whose names he did not reveal to Mr Marshall. Mr Marshall said that at that time, the respondent expressed concerns for his safety. Mr Marshall said that although he did not make detailed notes of the consultation at the time, the respondent had advised him about the investment with the mortgage broker and of the involvement of other individuals who were now looking to the respondent for compensation. Mr Marshall advised the respondent to report the threats to the police. Mr Marshall said that it was apparent to him at the time that the respondent was worried about the repercussions that such action might have on his family.
The respondent is from a small town in British Columbia and in his evidence before Finnane DCJ, he said that this increased his concerns about the threats made against him and his family.
Finnane DCJ approached his sentencing task on the basis that, notwithstanding the limited role the respondent played, the importation of cocaine is “a major crime”. His Honour noted, however, that the respondent was not to be treated as “a major criminal” for the purposes of sentencing, because he was not one. In this regard, apart from an assault charge in Canada, the respondent had no prior criminal history and had been gainfully occupied as a self-employed landscape gardener for six years prior to the commission of the offence. The assault charge itself was of a relatively minor nature.
His Honour made the sentences concurrent, stating that the reason for doing so was because the offences “really arise out of the same set of transactions”.
The Crown appeal
The Crown contended that the sentences imposed upon the respondent were manifestly inadequate such that this Court ought to intervene so as to maintain adequate standards of punishment for offences of this nature. In addition, the Crown contended that his Honour erred:
(1) in his assessment of the criminality of the respondent’s conduct;
(2)by ordering the sentences that he imposed be served concurrently;
(3)in failing to adequately reflect the element of general deterrence; and
(4) by placing undue weight on matters personal to the respondent.
Before turning to these specific grounds, it is convenient to review the principles governing Crown appeals. It is not necessary to do this in great detail, as those principles are well traversed in the authorities. Nonetheless, they set the framework within which this sentence is to be reviewed. It is sufficient for the purposes of setting that framework to refer to the decision of R v Wall [2002] NSWCCA 42 where the principles were conveniently summarised in the following terms by Wood CJ at CL (Meagher JA and Bell J agreeing), at [70]:
“(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.
(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.
(c) A Crown appeal against sentence is concerned with establishing matters of principle “for the governance and guidance of courts having the duty of sentencing convicted persons”: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62.”
These principles have been reaffirmed many times in this Court: see for example R v MD, BM, NA, JT [2005] NSWCCA 342; 156 A Crim R 372; R v To Si Thanh [2007] NSWCCA 200; 172 A Crim R 121 and Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247; 173 A Crim 458.

Although there was no challenge to the correctness of this summary, senior counsel for the respondent drew the Court’s attention to the statement by Hunt AJA in R v Janceski [2005] NSWCCA 288 at [25], where his Honour said:
“… The mere demonstration by the Crown of legal error by the sentencing judge in this case does not throw the sentence open for redetermination unless the sentence he imposed is itself objectively manifestly inadequate.”
Hunt AJA also pointed out, at [25], that the question whether a sentence was manifestly inadequate is properly left for consideration after the other grounds of appeal have been determined. This approach is particularly apt in this case, especially in relation to the challenge to the respondent’s sentences being made concurrent. The question whether there was an error in making the sentences concurrent will have an effect upon the question whether the sentences imposed, in totality, were manifestly inadequate. The question whether his Honour’s assessment of the criminality of the respondent’s conduct is also of particular relevance to the assessment of the manifest inadequacy of the total sentence imposed.
Ground 1: did the trial judge err in his assessment of the criminality of the defendant’s conduct?
I have already set out the trial judge’s characterisation of the respondent’s role in the importations, to which should be added his Honour’s finding in respect of the extent of that role, that:
“[the respondent] was not involved in any way in dealing with the cocaine apart from the limited way in which I mentioned.”
The Crown contended that in order to properly assess the role the respondent played in these importations, account needed to be taken of the following matters, which his Honour failed to do, or failed to do so adequately:
“(1)the [r]espondent came to Australia on a 6 month visa with travel arrangements in place to return at the end of that 6 months;
(2)he organised accommodation and transportation for that 6 month period;
(3)he rented a storage facility to securely store the ongoing consignments of drugs which were delivered to him from Canada;
(4)[i]n Australia he liaised with ‘Geoff’ as to these deliveries. Geoff provided him with the finances necessary. He told Geoff how much he needed. All expenses (with the exception of food and alcohol) were paid by Geoff;
(5)the [r]espondent, over a three month period, accepted each of the consignments of drugs, signed for them and then transported them to the secure facility which he had rented for that purpose;
(6)he, at the very least, made arrangements to enable those who were to unpack the drugs access to the storage facilities. Access required his security code and a key. He had unrestricted access to the facility. He retained access to the facility; and
(7)on his own volition, on 15 June 2007 he rented a second secure storage unit in which to store further consignments.”
The Crown emphasised that this was a well-planned and ongoing scheme involving the importation of large quantities of cocaine into Australia. The respondent’s conduct did not involve merely the storage of one consignment, but many consignments and the facilitation of access by others to the storage facilities for the purpose of retrieving the drugs. The Crown accepted that the respondent was told by others what to do. The Crown emphasised, however, that he was not supervised in any way, but rather was left alone with millions of dollars worth of cocaine. It followed on this submission that he was a ‘trusted’ member of the organisation involved in the drug importation. It was submitted that having regard to all of these factors, the sentence imposed failed to reflect:
“(1)the degree of autonomy with which the [r]espondent acted in fulfilling his responsibilities;
(2)the critical nature of the [r]espondent’s role to the success of the ongoing drug importation scheme which involved many millions of dollars worth of cocaine; and
(3)the degree of trust reposed in him by those who sent the consignments.”
The Crown contended that even accepting the respondent acted out of fear, he knew what he was doing and agreed to undertake the activity.
Senior counsel for the respondent submitted that there was no error in the trial judge’s characterisation of the respondent’s role. He submitted that the trial judge took into account all of the factors identified by the Crown as being relevant to the sentencing process. However, the respondent challenged the Crown’s assertion that the respondent made arrangements enabling others to unpack the drugs or access the storage facilities. I do not agree with this last submission.
The respondent further contended there was no basis for the Crown’s criticisms that the trial judge’s remarks failed to reflect the autonomy with which the respondent acted, the critical nature of his role and the degree of trust reposed in him. In particular, it was submitted that the respondent’s role as a “front” was typical of the role allocated to persons lower in the hierarchy of criminal activity and, in particular, the activity associated with commercial drug dealing. As senior counsel for the respondent pointed out, criminals higher in the hierarchy in the organisation and management of drug importation often cleverly distance themselves from direct involvement and use “fronts” such as the respondent, to make it difficult for the criminal activity to be traced back or linked to them. This is a well known phenomenon of this type of criminal activity: see Tyler v Regina; Regina v Chalmers per Simpson J (Spigelman CJ and Harrison J agreeing) at [82].
In Tyler v Regina; Regina v Chalmers, Simpson J quoted extensively from the discussion of this topic in R G Fox and A Freiberg, “Sentencing: State and Federal Law in Victoria”, (1999) Oxford University Press. The following passage, taken from pp 1012 to 1015 of the book, is worthy of repetition:
“Role of the offender
12.916 The courts have noted that the organisation of the importation, manufacture, or cultivation of drugs and their distribution and sale takes on the features of a hierarchical commercial enterprise [R v Chaplin (1991) 58 A Crim R 194]:
‘At the top of the distribution chain monopoly of power is high, risk of detection low (but the consequences if detected are very severe) and addiction rare. Profits at that level are very high. Further down the line monopoly of power evaporates and the risk of detection rises as the number of separate transactions increases … Generally manufacturers (or importers), and wholesalers handle much larger quantities of the drug than middlemen, retailers or consumers. The level of operation within the distribution chain, the scale of operation and the quantities of drugs, all correlate reasonably closely, but it is by no means a perfect relationship.’
The level of sentences will generally reflect the level of the offender in the hierarchy, whether he is an importer/producer, a courier, a medium scale distributor, or a low level distributor/consumer … However, the fact that an offender is a mere retailer does not necessarily entail a lenient sentence, only one lower than would have been earned had the person been a principal.
12.917 The severest of penalties will be reserved for offenders who have taken ‘a leading or executive part in the crime’, … the ‘masterminds or controlling agents’ … who often finance the entire venture. Large quantities are often involved, … and the schemes are usually carefully planned as commercial operations for personal financial gain …” (Emphasis added)
Senior counsel for the respondent contended that his Honour’s characterisation of the respondent as a “front” was well based, particularly having regard to the fact that the respondent used his own name and identity documents. It was submitted that this reflected how low the respondent’s position was in the hierarchy and contra-indicated the likelihood the respondent was in a position of trust. It was submitted that had he been trusted, it was more likely that he would not have used his personal identification documents.
Senior counsel for the respondent also relied upon the fact that the respondent had not received any money or benefit from the importation, other than perhaps being “relieved” of the responsibility to make good the losses of those whom he had introduced to the Canadian mortgage scheme. Senior counsel for the respondent also argued that the respondent’s role was not critical to the success of the ongoing drug importation in the same sense as the role of a principal manager and financier.
In my opinion, there was no error in the description or characterisation that the sentencing judge gave to the respondent’s role in the drug importation. The evidence permitted of a finding that the respondent was a “storeman” or a “front”. Indeed, the evidence did not support a finding of any different, or, more particularly, any higher role. However, participating in a drug importation in that role does not render the criminality minor. As his Honour remarked, the crimes were serious.
More relevantly, as both the Crown and senior counsel for the respondent acknowledged, labels such as “courier”, “storeman” and “front” are not critical in a case such as this. Rather, it is the objective features of the activities undertaken by the accused person, including the position of authority that person held in the organisational hierarchy, that is relevant to the sentencing process: see R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531.
Having reached that common position, the Crown and the respondent thereafter parted company.
The Crown submitted that the respondent was in a ‘position of trust’ and that it is apparent from the sentence imposed that his Honour failed to give sufficient weight, both to the autonomy with which he acted and the critical nature of his role. That the respondent was in a position of trust was apparent, on the Crown’s submission, from the fact he was unsupervised in his handling of up to ten shipments of cocaine and, in particular, in having access at any time to the place where the drugs were stored. Further, he was not accountable to anyone locally, his only contact being with the person known as “Geoff”, who provided him with money to pay the rent on the unit in Cronulla, the hire of the car and the Kennards storage units.
The Crown also placed some emphasis upon the fact that when the respondent tried to leave Australia, he did so without informing Geoff either that he was leaving, or that he had obtained alternate storage space. In this regard, the respondent’s evidence was that he had intended to tell those with whom he had been dealing in Canada of the alternate storage space when he arrived back in Canada. He also said he intended to give those persons the key for the Moore Park storage unit. The respondent explained that he had obtained the alternate storage facility because Geoff had told him not to go back to the unit at Tempe. He said that when he was given that information, he thought that “the other storage was gone, like, closed down”.
There are certain aspects of this part of the respondent’s evidence which are curious. The respondent said that Geoff telephoned him before each delivery and that this had happened on the occasion of the delivery on 15 June. He said it was Geoff who told him not to use the Tempe storage facility any longer. The inference to be drawn from his evidence was that he was not given any instructions in respect of alternate storage. Nonetheless, the respondent took it upon himself to open a new storage facility and not to inform Geoff that he had done so.
I have not been able to reach any conclusion as to what this evidence demonstrates, as it leaves too many questions unanswered. That is sufficient to reject the Crown’s submissions that the evidence demonstrated the respondent was in a position of trust. I should add, however, that I consider there was merit in the respondent’s submission that his actions and explanations as to why he acted as he did in relation to the storage unit at Moore Park are explained by his fear. It is at least equally possible that his actions, in particular his loyalty to those to whom he was answerable in Canada, arose out of his fear of those persons, rather than his loyalty being indicative of any position of trust.
The Crown relied upon the same factual matters as demonstrating that the respondent was acting autonomously, so that he should have been sentenced on the basis that his role was higher in the organisational hierarchy than his Honour considered was the case. I do not see any error in the trial judge’s approach in this regard. The evidence did not support a finding that the respondent’s role in the organisation was other than performing the task of taking delivery of the goods, storing them and facilitating access to the storage unit.
That does not mean, however, that the role played by the respondent was not an essential part of the drug importation. The goods had to be received and stored for the purposes of distribution, presumably, in this case, to “middlemen” who would then on-sell the drugs for their ultimate dissemination into the community. The distribution of drugs is the step that brings in the profits to those organising the importation. It is also the step that wreaks the harm to the community and to the individual drug takers. It is that step which makes the importation and possession of significant quantities of drugs such serious offences. The Legislature has seen fit to reflect its abhorrence of the crimes of which the respondent was convicted with maximum penalies of life imprisonment.
In Markarian v R [2005] HCA 25; (2005) 215 ALR 213 the High Court, in the judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ, said, at [30], that maximum penalties are not enacted by legislatures as “mere formalities” and that “[j]udges need sentencing yardsticks”. The Court then explained, at [31]:
“… careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”
The respondent is only to be sentenced for his actual criminality. The question for the trial judge was what was the appropriate sentence to impose, having regard to the criminal conduct in which the respondent engaged. The question for this Court is whether his Honour erred in the sentencing process: see House v R [1936] HCA 40; (1936) 55 CLR 499, and in particular, whether the sentences imposed in totality were manifestly inadequate.
Although there was no error in his Honour’s characterisation of the respondent as a “storeman”, it is necessary to have regard to the essential aspects of that role. The question whether his Honour had sufficient regard to the importance of that role cannot be determined in isolation. Relevantly, for the purposes of the present case, the Crown relied upon two further matters within the combination of factors relevant to determining an appropriate sentence, which it contended were not appropriately reflected in the sentences imposed.
The Crown contended that there was another consideration to which his Honour failed to have regard in sentencing, namely, the need for general deterrence. It was submitted that that failure was also reflected in the manifest inadequacy of the sentences. The Crown further contended that his Honour placed too much emphasis on the appellant’s personal circumstances, and in particular on the duress under which he was acting. It was submitted that this also led him into error in imposing a total sentence that did not adequately reflect the totality of the respondent’s offending. These two issues became linked in that the respondent submitted that this case was not an appropriate one to give full force to general deterrence in circumstances where the respondent was acting under duress.
It is convenient to consider these matters, which are encompassed in grounds 3 and 4, before considering whether his Honour erred, both in the sentences he imposed and in making those sentences concurrent.
Ground 3: failure to impose a sentence that reflected general deterrence.
Ground 4: overemphasis on personal circumstances of the respondent
In the manner in which ground 3 was argued in the course of the appeal, the Crown contended that as the trial judge made no reference to general deterrence in his remarks on sentence it was apparent that he had overlooked it. However, it is clear that his Honour was aware of the need for general deterrence, given his comment that the drug trade causes illnesses and crimes in society. The question is whether his Honour gave sufficient attention to general deterrence and what role it should play in the sentencing of the respondent.
General deterrence is one of the fundamental considerations to be taken into account in determining the sentence to impose on a guilty offender: see, for example, DPP (Cth) v El Karhani (1990) 97 ALR 373 at 380;(1990) 21 NSWLR 370 at 377; (1990) 51 A Crim R 123 at 130; R v Muanchukingkan (1990) 52 A Crim R 354 at 359; Budiman v R (1998) 102 A Crim R 411 at 416 and R v Klein [2001] NSWCCA 120 at [14]; (2001) 121 A Crim R 90 at 93.
El Karhani involved an appeal by the Director of Public Prosecutions (Commonwealth) against a sentence imposed on an elderly Lebanese national for importing 447.6 g of pure heroin into Australia on a flight from Abu Dhabi to Sydney. At 380, the Court cited the following passage from Radich [1954] NZLR 86 at 87, which the Court noted had already been cited and applied in numerous cases (see, for example, Cooke (1955) 72 WN (NSW) 132 at 135; R vHerring (1956) 73 WN (NSW) 203 at 205; R v Rushby [1977] 1 NSWLR 594 at 597-598; Davey (1980) 2 A Crim R 254 at 260 and Hogan (1987) 30 A Crim R 399 per Rice J at 412):
“One of the main purposes of punishment ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment …The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment.”
Courts have also long recognised the importance of general deterrence in sentencing in respect of drug importation offences. In R v Cheung Wai Man & Ors (Supreme Court of New South Wales, 22 March 1991, unreported) Sully J said:
“The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well being of the Australian community …The importation or the attempted importation of, and the trafficking or attempted trafficking [of heroin] … is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted … In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who … engage in drug-related crime when they are themselves not drug dependent."

This passage has been cited with approval on numerous occasions. Its relevance is not restricted to the importation of the particular drug in that case. It is an important statement of principle relating to the importation of any illegal drug. Sully J reiterated his comments in Regina v Thanh Hai Nguyen Regina v Van Hau Pham Regina v Kam Pui To Regina v Huy Quang Vu [2004] NSWSC 144 at [53], which involved the importation of ecstasy. See also R v Chen & Ors [2002] NSWCCA 174 at [286]; (2002) 130 A Crim R 300 at 382; R v Chun Hing Law [2002] NSWSC 952 at [24] and R v Stanbouli [2003] NSWCCA 355 at [14] per Hulme J (with whom Spigelman CJ and Carruthers AJ agreed on this point).
Senior counsel for the respondent did not contest that general deterrence was relevant to the sentencing process. Rather, he contended that in circumstances where the offender was acting under duress, the objective seriousness of the offence was less than would be the case if the offender was acting out of motives of greed or financial benefit. He submitted that where duress and fear were the motivating forces behind the offending, general deterrence does not have a significant role to play in the sentencing process. Rather, the position is more akin to where an offender was suffering a mental illness. In the case where the mental illness is not of such a nature to constitute a defence to the charge, it remains relevant in the sentencing process, particularly in respect of the emphasis that is given to both general and specific deterrence: see R v Israil [2002] NSWCCA 255, in which Spigelman CJ noted, at [18] and [23], that mental illness may mean that a court will place less emphasis on both specific and general deterrence. The reason that is so was explained by his Honour, at [23], in these terms:
“To the extent that mental illness explains the offence … then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.”
Senior counsel for the respondent submitted that the position was no different for a person who was acting under a threat of death, as the respondent in this case was. He said that such a person had no real choice but to accede to the ‘request’ that he assist in the criminal enterprise. It was submitted there is no point when sentencing an offender in that position to place any emphasis on general deterrence.
The Courts have not taken that view. The relevance of duress to the sentencing process in a drug importation was considered by this Court in R v Liu [2005] NSWCCA 378. The duress in that case was significant. Ms Liu and her boyfriend had agreed to travel to Europe to obtain “water goods” for a third party. Ms Liu had understood that to mean the purchase of handbags and watches, to be sold at a cheaper price in Hong Kong, without the involvement of any illegal conduct. However, when they were informed that they were to take white powder, which Ms Liu and her boyfriend understood to be drugs, into Australia, her boyfriend resisted. He was beaten in her presence and she was threatened with rape and dreadful consequences to her family. Ms Liu was pregnant at the time. There was no question of any financial reward for Ms Liu participating. Ms Liu was sentenced to 8 years imprisonment with a non-parole period of 4 years for one count of importing 1.582 kg of pure heroin. She appealed against the severity of sentence.
In relation to the duress to which Ms Liu was subject McClellan CJ at CL (Hoeben J agreeing) stated, at [34]:
“The circumstances in which the applicant committed the offence, her own personal circumstances, including her pregnancy and submissive personality, the difficulties which she faced during imprisonment, the problems of giving birth to a child and the nurturing of that child during her prison term were all matters which required careful consideration when imposing a sentence. An examination of the sentencing judge’s remarks reveals a thorough and careful assessment of all these matters and an ultimate amelioration of the sentence by a shortening of the non-parole period. To my mind, her Honour did not commit any error. The offence committed by the applicant was of the greatest degree of seriousness carrying a maximum sentence of life imprisonment. The abhorrence of the community and the determination of the legislature to deter others from the importation of narcotics is apparent. Whatever be the circumstances of an individual who imports a commercial quantity of heroin, the offender must expect a significant period of imprisonment. Although, as the evidence suggests, it is unlikely that the applicant will re-offend, the sentence which she receives must be sufficient to remind others considering similar criminal activity that, if caught, a lengthy prison term will almost certainly follow.” (Emphasis added)
Those comments are particularly apt in this case.
In my opinion, the totality of the sentences imposed in this case were so inadequate that it likely that his Honour failed to give appropriate weight to the need for general deterrence and gave undue weight to the fact that the respondent was acting under duress. It is also likely that he gave undue weight to the respondent’s subjective circumstances. This conclusion, in effect, is determinative of the appeal. However, because of the otherwise strong subjective case of the respondent, it is appropriate that I deal with the remaining ground of appeal, and in particular explain why I consider that his Honour erred in ordering that the sentences imposed be served concurrently.
Ground 2: did the trial judge err in ordering the sentences be served concurrently?
The first consideration in respect of this ground of appeal is that the respondent was charged with two specific offences. The first offence was attempting to possess cocaine. That offence was committed on 15 June 2007 and related to the 3.877 kg of drugs received on that day. The second offence was possessing cocaine between 20 March and 16 June 2007. The quantity of drug involved in that offence was 8.080 kg.
In determining the appropriate sentence, the trial judge stated:
“There is no doubt that the drug trade is the cause of other illnesses in society and many other crimes. I am required to impose a sentence that takes into account; his background, all the principles set out in the Commonwealth Crimes Act, his plea of guilty. I have to consider whether there is any possibility of imposing a non custodial sentence. I have considered that and I do not think there is, but I do not approach this merely by weighing up the value of the amount ultimately found and trying to compute a sentence by working out what other people who were found in possession of similar quantities got. Much more is required than that. One has to look at the entire circumstances and how someone became involved, not merely the quantum of the drugs involved. The High Court exposed the error of the Court of Criminal Appeal’s approach in this regard some years ago.”
His Honour considered that the same sentence should be imposed for each offence and that those sentences should be served concurrently. His Honour said:
“I make both sentences concurrent because they really arise out of the same set of transactions. [The respondent] should spend time in custody that reflects his involvement in the overall matter.”
The Crown contended that notwithstanding that the consignments on 15 June 2007 were part of an ongoing scheme to import drugs into Australia, this did not lead to the conclusion that the sentence for one offence would suffice for both. The Crown submitted that the sentence for the offence in count 1 could not comprehend the criminality of the offence in count 2 and that each was, and therefore should be treated as, a discrete act of criminality.
Senior counsel for the respondent contended that the sentence imposed in respect of each offence was appropriate. He submitted that the Court ought not be swayed by the obvious numerical difference between an importation of 3.877 kg and an importation of 8.080 kg. He submitted that there was not a great difference in the quantity of drug in each offence and that in accordance with the principles in R v Wong & Leung, it was necessary not to give too much emphasis to the weight of the drugs the subject of the charges. He submitted that if the objective criminality in the two offences were the same, then that would lead to the same sentence. He submitted this was the case here.
Senior counsel for the respondent also submitted that the reason the respondent was charged with two offences and not one was because the controlled delivery of the substituted substance could not have been the subject of a possession charge. Rather, taking delivery of that consignment could, as a matter of law, only amount to the offence charged in count 1. Had there been no substitution of the drugs, the delivery of the 3.877 kg on 15 June 2007 would, or could, have been treated as part of a single ongoing importation. Accordingly, on this submission, the sentencing judge was correct in treating the two offences as part of one transaction and, it followed, there was no error in his Honour making the sentences for the two offences concurrent.
The respective positions of the Crown and the respondent on this ground raise fundamental and well-known principles. The fact that they were in significant contest as to the correctness of his Honour’s approach means that a brief review of those principles is warranted to determine whether his Honour erred in the sentence he imposed for each offence and in making the sentences concurrent.
Sentencing for individual offences, concurrency and totality
In Pearce v R [1998] HCA 57; 194 CLR 610, McHugh, Hayne and Callinan JJ said at [45]:
“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59).”
Notwithstanding this clear statement of the correct approach to sentencing, it is accepted that Pearce does not prescribe a mandatory approach to sentencing, although it reflects the usual, or preferred approach, as is apparent from Johnson v R [2004] HCA 15; (2004) 205 ALR 346. In Johnson, Gummow, Callinan and Heydon JJ said at [26]:
“… the joint judgment in Pearce recognises the currency of [Mill v The Queen] by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.” (Original emphasis) (Footnote omitted)
The underlying role of the principal of totality in determining whether sentences should be imposed concurrently or not was considered by this Court in Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41. There, Howie J (Adams and Price JJ agreeing) stated, at [27]:
“… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.” (Emphasis added)
Before considering whether his Honour erred in the application of those principles, there is another issue which is relevant in this case, namely, the relevance that should be attached to the weight or quantity of the drug imported.
In Wong v R [2001] HCA 64; 207 CLR 584 Gaudron, Gummow and Hayne JJ rejected the notion that usually, the weight of the drugs imported was the chief factor to be taken into account in fixing a sentence. Their Honours’ focus upon that question arose having regard to the issue on the appeal to the High Court. Wong was an appeal from a “guideline judgment” of this Court where the Court had determined that the weight of the narcotic imported was the chief factor to be taken into account in fixing the sentence to be imposed on a person knowingly participating in the importation: see R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531. The High Court rejected that proposition. The High Court did not, however, relegate the weight of the narcotic to an irrelevancy. Senior counsel for the respondent acknowledged this, but in his submission, weight was only relevant when there was a significant discrepancy, for example, between 1 kg and 100 kg. He submitted that there was no relevance so far as the sentencing process was concerned between an importation of approximately 4 kg and an importation of approximately 8 kg, as was the case here. Accordingly, the same sentence for each offence was appropriate. Since there was, in reality, only one ongoing transaction, the concurrency of those sentences was also appropriate.
In Wong, Gaudron, Gummow and Hayne JJ observed, at [64] that there are a whole range of matters relevant to the sentencing process, including the quantity of the drug involved, the offender’s knowledge of what was being imported, the offender’s role in the importation and the reward the offender hoped to gain. Their Honours stated:
“In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.”
Their Honours commented that in some cases factors other than the quantity of the drug will be of greater significance in the sentencing process. Their Honours stated, at [68]-[69]:
“It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.
It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.”
In this case, the respondent did not become aware of the type of drug being imported until sometime after he commenced taking delivery of the consignments. Nevertheless, he must have recognised that a significant quantity of drug was involved and that he was involved in an ongoing drug importation exercise. He had come to Australia for the specific purpose of taking delivery of consignments of drugs over a six month period. In the period of three months to 15 June, he had already taken delivery of about 10 consignments, almost one a week.
In my opinion, the flaw in the respondent’s suggested approach in this case is the proposition that this offender, who was involved in an ongoing importation over a period of three months, admittedly acting under duress, should receive the same sentence for the importation of approximately 4 kg as he should for the total importation of approximately 12 kg. On this approach, the same sentence would be appropriate for three times the quantity of drugs being distributed into the community. The wholesale and retail value of these drugs was large. The rewards for those who were to be the ultimate financial recipients of the transactions would have been substantially greater. The harm to the community was correspondingly greater. Nonetheless, the respondent contended that the total sentence for the possession of approximately 4 kg was an appropriate sentence for the possession of the whole. In my opinion, there is such a disparity between 4 kg and 8 kg that a greater sentence for count 2 ought to have been imposed. I am also of the opinion that there should have been some accumulation of the sentences so as to reflect the total criminality involved.
My view that these sentences were manifestly inadequate is reinforced by the review undertaken by Hulme J in R v Kevenaar [2004] NSWCCA 210; 148 A Crim R 155 (Simpson and Howie JJ agreeing) of the range of sentences that the courts have imposed on persons involved in drug importations, at the lower end of the hierarchy. His Honour observed, at [82], that head sentences of between 7 and 10 years have been the general range for couriers involved in importations of between 500 g and 2 kg. In one of the cases reviewed, R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1; 147 A Crim R 1, his Honour, at [102], noted that the Court had reduced a sentence of 12 years to 10.5 years for an importation of 3.2786 kg (pure weight) of ecstasy tablets for a person who had pleaded guilty at a very early stage. In Studenikin the Court made no change to the non-parole period of 7 years, which the Court described, at [76], as “lenient”.
In Kevenaar Hulme J, at [104], summarised the conclusions to be drawn from the cases he had reviewed in these terms:
“What conclusions should be drawn from the above? Firstly, that the sentences imposed on couriers involved with trafficable quantities have generally been 6 or 7 years. Secondly, having regard to the fact that a higher maximum penalty is prescribed for commercial quantities, viz. 500 grams or more, one would expect that as quantity increased and particularly the further it moved away from 500 grams, so penalties could be expected to increase. Thirdly, the general pattern of sentences for commercial quantities show that that has occurred. Fourthly, there is in the decisions of Budiman, Macgregor [[2000] NSWCCA 552; (2000) 120 A Crim R 24], Bowers [(1997) 97 A Crim R 461] and Amran Efendi [[2001] NSWCCA 391] strong support for the view that, in the case of offenders who had pleaded guilty, a head sentence of 8 to 10 years imprisonment is appropriate in the case of quantities appreciably above 500 grams but under 1 kilogram and a clear indication in Bowers that the sentences should not be less than 8 years. Fifthly, Behar [(Court of Criminal Appeal, Spigelman CJ, McInerney and Sperling JJ, 14 October 1998, unreported)] provides support for this view.”

A consideration of cases in the last 12 months in this Court confirms that sentences for offences similar to those for which the respondent was convicted continue in the same range as identified by Hulme J in Kevenaar. Late last year, Hulme J again undertook a review of cases in Nguyen v R [2008] NSWCCA 280.His Honour’s review in that case, which considers some of the cases to which I have had regard, also confirms that this is so.
It is apparent from the above that the non-parole period to which the respondent was sentenced in respect of count 1, which involved a quantity of 3.877 kg, was lenient. The Crown conceded that this sentence taken in isolation was not manifestly inadequate so as to require appellate intervention. However, both the head sentence and the non-parole period for count 2 were, in my opinion, manifestly inadequate and this Court should re-sentence the respondent.
Before proceeding to re-sentence the respondent, I should say something further about the role that the respondent performed. The cases reviewed in Kevenaar involved persons who were couriers, many of them “mules”, carrying the drugs on or in their person. In this case, the nature and scale of the importation was such that there were no couriers. In other words, the use of couriers was not part of the modus operandi of getting the goods into the country. Rather, the goods were consigned to Australia disguised in heavy metal car parts. Whilst it is likely, from the evidence, that a driver within UPS was involved in the delivery of the drugs to the respondent, the respondent was the only effective operative in receiving the goods and placing them into storage for the purposes of onward collection and distribution. The essentiality of that role is significant.
In re-sentencing, the respondent has the benefit of the favourable findings made by the sentencing judge and appropriate weight should be given to those matters. Likewise, it is relevant that the respondent engaged in this criminal activity under duress. Whilst this does not negative the need to impose a sentence that reflects general deterrence, the trial judge accepted that the respondent did not receive any financial reward, other than payment of his rent and the like, for his participation. This is a relevant factor in determining the sentence that ought to be imposed. If the respondent had engaged in the importation for his own financial gain, that would have reflected adversely on him. In re-sentencing, I have also taken into account that the respondent will substantially spend his period of imprisonment without the benefit of familial support or the support of close friends.
I also take into account that the respondent pleaded guilty at the earliest opportunity. The respondent should have the benefit of his pleas of guilty and in the sentences I propose I have allowed a substantial discount (25 per cent) from the sentences that would otherwise have been imposed but for those pleas: see Cameron v R [2002] HCA 6; (2002) 209 CLR 339; (2002) 187 ALR 65. Finally, I should add that in setting the non-parole period, I have applied the proportion usually set for Commonwealth offences: see, for example, James v Regina [2009] NSWCCA 62 at [15].
The sentences that this Court may impose are constrained by the principles that govern Crown appeals. Having regard to those principles I would propose the following orders:
Orders:
1. Leave to appeal granted;
2. Appeal allowed;
3.Set aside the orders made by Finnane DCJ on 26 September 2009 and impose the following sentences:
Count 1:A non-parole period of 5 years commencing on 16 June 2007 and expiring on 15 June 2012 with a balance of term of 4 years commencing on 16 June 2012 and expiring on 15 June 2016;
Count 2. A non-parole period of 6 years 6 months commencing on 16 December 2007 and expiring on 15 June 2014 with a balance of term of 4 years commencing on 16 June 2014 and expiring on 15 June 2018.
The total effective sentence imposed on the respondent is 11 years with a non-parole period of 7 years.
BLANCH J: I agree with Beazley JA.
HOWIE J: I agree with Beazley JA.
THE COURT: Since the orders were pronounced, it was noted that they did not comply with Pt 1B of the Crimes Act 1914 (Cth). The orders are varied as follows:
1 Appeal allowed;
2.Set aside the orders made by Finnane DCJ on 26 September 2009 and impose the following sentences:
Count 1:A sentence of 9 years commencing on 16 June 2007 and expiring on 15 June 2016;
Count 2. A sentence of 10 years 6 months commencing on 16 December 2007 and expiring on 15 June 2018.
Specify a non-parole period of 7 years to date from 16 June 2007 and to expire on 15 June 2014.
The Court notes that leave is not required for an appeal under s 5D of the Criminal Appeal Act.
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LAST UPDATED:
8 April 2009