R v To - [2007] NSWCCA 200

No judgment structure available for this case.

Reported Decision: 172 A Crim R 121

New South Wales

Court of Criminal Appeal

CITATION: REGINA v TO Si Thanh [2007] NSWCCA 200

HEARING DATE(S): 5 April 2007

JUDGMENT DATE:
5 July 2007

JUDGMENT OF: Handley AJA at 1; Hulme J at 9; Hall J at 60

DECISION: 1. Allow the Crown appeal; 2 Quash the sentence imposed on the Respondent on 2 February 2007; 3. Sentence the Respondent to imprisonment for a term of 25 years, including a non-parole period of 15 years; 4. Direct the legal advisers for the Respondent to provide to the Respondent an explanation of the above orders in accordance with the requirements of s16F of the Crimes Act (C’th).

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Customs Act Amendment Act 2004 (Cth)
Crimes Act 1914 (Cth)
Drug Misuse & Trafficking Act 1985 (NSW)

CASES CITED: Everett v The Queen (1994) 181 CLR 295
R v Wall [2002] NSWCCA 42
R v MD, BM, MA, JT [2005] NSWCCA 342
R v Peel (1971) 1 NSWLR 247
R v Kevenaar (2004) 148 A Crim R 155
R v Kaldor [2004] NSWCCA 425
R v Dang [2005] NSWCCA 430
Wong v The Queen (2001) 207 CLR 584
R v Nguyen (2005) 157 A Crim R 80
R v Stanbouli (2003) 141 A Crim R 531
R v Nai Poon (2003) 56 NSWLR 204
R v El Hani [2004] NSWCCA 162
R v Moore [2004] NSWCCA 162
R v Sukkar [2005] NSWCCA 54
R v Shepherd (2003) 142 A Crim R 101

PARTIES: Regina
Si Thanh TO

FILE NUMBER(S): CCA 2007/459

COUNSEL: Crown: T Game SC
Respondent: J Hickleton

SOLICITORS: Crown: CDPP
Respondent: George Sten & Co

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0605

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 2 February 2007

- 48 -

No. 2007/459

REGINA v. SI THANH TO

Judgment

1 HANDLEY AJA: In this appeal I have had the considerable benefit of reading the reasons for judgment of Hulme J and Hall J. Their analyses of the facts, the history of the proceedings, the legislation and the authorities enables me to deal with the matter quite briefly.

2 The sentencing judge found that the prisoner had a managerial role in the importation, and should be sentenced as a principal who stood to benefit as such from the importation (“if we let go we get nothing”). The jury found that he knew that the speedboat contained a quantity of an illegal drug, although there was no direct evidence that he knew precisely what the drug was. This is not a mitigating circumstance because, he either knew this or was recklessly indifferent.

3 The illegal drug was contained in 46 plastic bags, with a gross weight of 45.83kgs containing 34.8kgs of methylamphetamine with a wholesale value of at least $5 million.

4 There was no evidence that the prisoner knew the precise quantity or value of the shipment but he knew that it was hidden in a speedboat shipped in a 40ft container, and that the drugs were secreted in three different places on the boat and occupied a substantial amount of space. The pure quantity involved was nearly 50 times the minimum commercial quantity, and the court is entitled to find that the prisoner knew that a large quantity was involved, well over .75kg, which would be worth a lot of money on the illegal market.

5 My brethren would impose a head sentence of 25 years imprisonment. I have no difficulty in accepting a sentence structured on this basis and I have no need to examine the somewhat different reasons of my brethren for adopting it. Hulme J would fix a non-parole of 15 years, or 60% of the head sentence, while Hall J would fix a period of 13 years or 52% of the head sentence.

6 Hall J said (para [103]) that his starting point of 25 years took into account “the subjective factors” including the prisoner’s formal admissions at the trial. He then fixed the non-parole period of 13 years (par [104]) “having regard to the respondent’s age, rehabilitation prospects and the principles that are to be applied on a Crown appeal”. With respect this reasoning appears to involve impermissible elements of double counting.

7 The sentencing decisions for these Commonwealth offences considered by my brethren, together with R v A [2004] NSWCCA 292, show that as a matter of practice the non-parole period for these offences has not been less than 60% and generally, but not always, not more than 66% of the head sentence.

8 The fixing of a non-parole period in this case at 60% of the head sentence, as proposed by Hulme J, is at the bottom end of this range. In my judgment such a percentage adequately reflects the discount to which the prisoner is properly entitled on a Crown appeal. In my opinion therefore the formal orders proposed by Hulme J should be made.

9 HULME J: By Sections 233B, 235 and Schedule VI of the Customs Act Parliament has sought to deter persons from importing a variety of drugs into Australia. So far as is presently relevant, the effect of Section 235 is to render an offender involved in the importation of a quantity described as “trafficable” liable to imprisonment for 25 years and a fine not exceeding $500,000 and in the case of a quantity described as “commercial”, imprisonment for life and a fine not exceeding $750,000.

10 It is sufficient for present purposes to refer to five of the drugs referred to in the Schedule, the specified minimum quantities within each category being as follows:-

Substance Trafficable Quantity Commercial Quantity
Amphetamine 2 gr. 0.75 kg.
Cocaine 2 gr. 2 kg.
Heroin 2 gr. 1.5 kg.
Methylamphetamine 2 gr. 0.75 kg.
3,4-Methylinedioxy-
methamphetamine 0.5 gr. 0.5 kg.

11 (The quantities specified in the schedule and, unless the contrary is stated, in these reasons, are “pure” quantities.)

12 The severity of the penalties prescribed speaks with unmistakable clarity of the seriousness with which Parliament views importation of the drugs mentioned. Sitting as a judge in this Court and at first instance, and seeing the lives wrecked by addiction to drugs and, in the case of victims, wrecked or lost because of the desperate or irrational actions of persons addicted, one can readily appreciate Parliament’s concerns.

13 It is also appropriate to recognise that an increase in the (pure) quantity of a particular drug is calculated, by increasing the number or strength of street deals into which it can be cut, to increase the damage done by it. An increase in quantity is calculated to increase also the profits made by those importing.

14 On 16 November 2006, the Respondent to this Crown appeal was convicted on a charge of aiding, abetting, counselling or procuring the importation of a number of tablets incorporating 34.8 kgs. of methylamphetamine on or about 12 October 2005. The wholesale value of the drugs was at least $5,000,000. On 2 February 2007 he was sentenced by Judge Woods to imprisonment for 17 years including a non-parole period of 10½ years.

15 The drugs arrived in Australia concealed in a speedboat contained in a 40ft shipping container. From October or November 2005 until 6 February when he succeeded, the Respondent engaged in efforts to secure the release of the speedboat from the Customs, shipping and other bodies into whose control such objects fall on importation. Hall J has set out most of the details of the Respondent’s actions and I need not repeat most of what his Honour has said. I would, however, add that that the Respondent’s actions and conversations revealed him to be an enthusiastic supporter of the enterprise which, according to him, he understood to involve stolen gold and jewellery. Those actions included urging a co-offender Bui to obtain funds with which to pay various charges in terms which included: “We can’t just let go at this stage, come on”, “It will be big trouble if the husband of the other woman found out we’re not collecting it”, “You know many people, brother. Can you ask around and see?”, “If we let go, we’ll get nothing.”, and “Why don’t you … borrow it from someone?”, and engaging others to undertake some of the work involved in receipt of the boat and the removal of the drugs therefrom.

16 Some other features stand out. The Respondent’s evidence and pre-sentence report reveal that his sole motivation was the money or reward he could derive from his efforts. A second is Judge Woods’ finding that the Respondent played the principal role in Australia, albeit Bui was a more highly placed principal.

17 In Wong and Leung v R [2001] 207 CLR 584 at [31] and [69] it was pointed out that the extent of an offender’s knowledge of the quantity or purity of the drugs the subject of the importation may well be relevant. As commonly occurs in the case of offenders who deny liability and whose offending is only discovered after the drugs are intercepted by Customs Authorities, the evidence as to this is limited. Consistently with the Respondent’s version that he understood what was being imported was gold and diamonds he gave no evidence on this topic. However, while there is no direct evidence to the effect the Respondent knew the precise quantity or purity involved, he did know the following:-

That the boat had been imported in a 40 feet container. The Respondent said that he thought the boat was big enough to sleep in.

That the drugs were concealed in three places which were sketched for him. One of these places is on the centreline aft of what appears to be depicted as the windscreen or front of a cabin and appears to occupy a rough square the sides of which are something of the order of one-fifth of the depicted beam of the boat. The other 2 areas are to port and starboard and largely aft of this. In length, each equals about 40% of the depicted length of the boat.

18 Even allowing for inaccuracies in the sketch, the Respondent thus knew that whatever was being imported occupied a substantial amount of space. There is no evidence that the Respondent knew the purity of the drug. However, in light of the knowledge of the Respondent to which I have just referred, the appropriate inference is that the Respondent either did have a fair idea of what was involved or alternatively he did not care, being content to assist whatever the quantity and purity was.

19 I turn to the question of what the appropriate sentence range of sentences within which the Respondent’s should have fallen. The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself. "In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" - R v Peel (1971) 1 NSWLR 247 at 262.

20 That degree in this case was very substantial. The Respondent was a major cog in the enterprise. The quantity 34.8 kilograms, almost 50 times the quantity Parliament selected as taking an offence outside the trafficable and into the commercial range was, relative to the statutory proscription, huge. In so characterising the matter, I do not ignore the fact that there have been, and may be again, importations much larger. Given the open ended nature of the measurement of commercial quantities, that is hardly surprising. However, it is necessary to measure the Respondent’s offending primarily against the statutory provision rather than the offending of others that might be worse. As the High Court said in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 478:-

“… The maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v R (1987) 163 CLR 477 at p451-2. That does not mean that a lesser penalty must be imposed if it is possible to envisage a worst case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principal only if the case is recognisably outside the worst category.”

21 In R v Wong (1999) 48 NSWLR 340 a five member bench of this Court reviewed a very large number of prior decisions dealing with drug importation and sought to specify guidelines for the benefit of sentencing judges in the future. To the extent to which the Court undertook that latter task, its decision was overruled - see Wong and Leung v R [2001] 207 CLR 584. Nevertheless, this Court’s decision is still instructive for the summary it provides of the result of previous decisions (as is, if I may say so, an earlier and in some respects more detailed review I had conducted in R v Spiteri (1999) NSWCCA 3).

22 Most of the cases tabulated at pages 375 - 377 of the report of R v Wong support the proposition, suggested by the Chief Justice at page 366 that in the circumstances of which the Chief Justice was speaking, sentences for persons involved in the importation of 1.5 - 3.5kgs of heroin or 2 - 3.5kgs of cocaine have tended to fall within a range of 8 - 12 years, and for those involved in the importation of 3.5 - 10kgs of those drugs, tended to fall within a range of 10 - 15 years.

23 The circumstances under consideration involved offenders who were couriers or otherwise low in the hierarchy of an importing organisation – see at [142]. Generally, perhaps in about 80% of cases – see at [106], [141] – the offenders had pleaded guilty. In most of the New South Wales cases, express mention was made of s16G of the Commonwealth Crimes Act and, given the date when that section came into force, 17 July 1990, and the dates of the sentences imposed, it may be inferred a discount under that section is reflected in all of the sentences. That section has now, of course, been repealed.

24 Most of the cases referred to were before R v Thomson and Houlton (2000) 49 NSWLR 383, since when discounts for pleas of guilty have tended to become more standardised but it is clear that the sentences generally reflect some allowance on account of such pleas. It is also appropriate to record that the usual discount pursuant to s16G was about one-third and, when stated, was of that order in the cases mentioned.

25 In R v Schofield [2003] NSWCCA 3 and in R v Kevenaar & Ors [2004] NSWCCA 210 I had occasion to consider in detail the range of penalties imposed in a substantial number of importation cases involving 3,4 - Methylinedioxy-methamphetamine (ecstasy), many of which post-dated R v Wong and R v Thomson and Houlton. In R v Kevenaar & Ors at [104] I concluded:-

“… there is in the decisions of Budiman, McGregor, Bowers and Amran Efendi strong support for the view that in the case of the offenders who had pleaded guilty a head sentence of 8-10 years imprisonment is appropriate in the case of quantities appreciably above 500grs but under 1kg and a clear indication in Bowers that the sentences should not be less than 8 years. Fifthly, Behar provides support for this view.”

26 All of the cases mentioned in that passage involved persons who were, or had been treated as, couriers and with the exception of Budiman who received a discount for assistance, had pleaded guilty. Again the application of s16G was expressly mentioned or to be inferred.

27 During the appeal in this case, the Court was referred to a number of additional cases. Some arise out of the importation in 2001 of some 480,000 ecstasy tablets with a pure weight of 34.4 kgs. The tablets were concealed in components of an industrial freezer, landed in Brisbane where Customs authorities discovered them, removed most and substituted others. The freezer was then delivered in Brisbane, unpacked and trucked to Sydney where those parts of the freezer containing the tablets were opened. Various of the participants in this importation have been dealt with in R v Shepherd [2003] NSWCCA 287, R v El-Hani [2004] NSWCCA 162, Prasad (2004) 147 A Crim R 385, R v Steven Sukkar [2005] NSWCCA 54, R v Louis Sukkar [2005] NSWCCA 55, R v Joseph Sukkar [2006] NSWCCA 62 and R v Choi [2007] NSWCCA 150.

28 Shepherd ran an importing and exporting business and, at the instigation of a friend and business associate Prasad, agreed to assist with the importation in return for an amount of $25,000. Shepherd’s activities are described in the judgment of Howie J at [13] as follows:-

“The applicant’s criminality arises from the fact that he was prepared, for whatever gain or other motive, to play a significant role in the importation of what he must have known to be a very substantial quantity of drugs. He had agreed to become involved in the importation in March 2001. He was an active participant from August until December 2001 by taking steps to facilitate the clearance of the container through the shipping company and customs. He had permitted premises that he had leased to be used to receive the container and to store some of its contents. The applicant was there when the container was delivered. He assisted in the removal of some of the contents, clearly believing that they contained drugs, and the loading of them onto a truck to commence their distribution.”

29 Shepherd was 44 in November 2002 when sentenced, had no relevant criminal history and was described as an intelligent and industrious person. He appealed against a sentence of 14 years including a non-parole period of 9 years. Holding that the sentence was excessive, this Court reduced it to one of 11 years 6 months with a non-parole period of 7 years 4 months. Of significance for present purposes is the fact that the ground relied on by this Court for interfering was the discount for assistance which the Court held should, when combined with that for pleading guilty, be 45%. Working backwards, this indicates a period, prior to that discount of about 21 years. That figure was arrived at after a discount, allowed by the judge at first instance, of approximately 30% by reason of s16G of the Crimes Act. Although recording a concession by the Crown that the starting sentence, which seems to have been treated as about 32 years, was at the very top of the range, this Court made no criticism of it.

30 El-Hani was described as a ''senior person in the organisation who played an important managerial role when the drugs had been substituted''. He had been present in an early meeting overseas when the importation was arranged, been involved in discussions with the Australian and overseas principals and travelled to or from a variety of countries in response to problems that those involved perceived after the authorities had substituted an innocuous substance for most of the drugs. After receiving a discount of 25% for his plea and assistance, El-Hani was sentenced to imprisonment for 15 years including a non-parole period of 10 years. The sentencing judge’s starting point had been 30 years, from which one may infer a s16G discount had been deducted prior to the 25% discount. Again there was no criticism of the starting point and El-Hani’s appeal was dismissed.

31 Because he also sought financial benefit in paying off a debt of $100,000 owed to Choi, one of those involved, and receiving a further $50,000 he proposed to share with Shepherd, Prasad introduced Shepherd to the venture and thereafter acted as a cut-out between Shepherd and Choi on the one hand and Shepherd and the Sukkars on the other. He was regarded as not as involved as Shepherd and having more compelling subjective features. He was sentenced to imprisonment for 14 years including a non-parole period of 8 years and 8 months, the sentencing judge’s starting point being 21 years prior to applying a s16G discount. Prasad had pleaded not guilty. Although this Court dismissed a Crown appeal in the exercise of its discretion, Wood CJ at CL, with the concurrence of Hidden J and Smart AJ, said that the sentence fell outside the legitimate sentencing range and should have been of the order of 17 years including a non-parole period of 11 years and 2 months. Implicit in this is the statement that a proper starting point should have been of the order of 25 years.

32 Steven Sukkar, who also was found guilty after a trial, had been sentenced to imprisonment for 14 years, including a non-parole period of 9 years. Reference to the remarks on sentence at first instance make it clear that the starting point prior to a s16G discount had been 21 years. Appeals by the offender and the Crown against the sentence imposed were, by majority, dismissed. The evidence did not indicate that Steven Sukkar had any involvement in the importation until after the drugs had been delivered to premises owned by him but which were occupied by a brother Louis and others. His knowing involvement commenced on that day during which he helped unload the truck in which the freezer parts were contained, permitted the freezer parts and tablets to remain on his premises, helped sort through the tablets to separate those containing drugs from those substituted, and then undertook the task of ascertaining what had happened to the drugs after their arrival in Australia and whether there were any “gaps” during which the substitution could have occurred. This latter activity was with a view to recovery of the drugs or compensation for their loss. In the course of this exercise he studied documents and spoke to other offenders. He was described as a knowing assistant to his brothers during this period and his motivation to help them.

33 Steven Sukkar was a solicitor, aged 31 at the time of his offending and of good character. Smart AJ, who would have imposed a lesser sentence, observed that the destruction of the offender’s career was itself a punishment.

34 Louis Sukkar was regarded as a co-principal of Joseph Sukkar in the importation, although the latter’s activities were more prominent. He had no prior convictions. The sentencing judge’s starting point had been 36 years, reduced by one third on account of s16G and then by a further 25% on account of his plea and assistance. The sentence imposed was of 18 years imprisonment including a non-parole period of 12 years.

35 Joseph Sukkar was regarded as, at the very least, a co-principal in the importation. He had a prior record which the included the importation of hashish oil. Allowing a Crown appeal, this Court said that a starting point of 45 years was appropriate, reducing this on account of s16G and by a further 35% on account of a plea and assistance. The sentence imposed was one of 20 years imprisonment including a non-parole period of 12 years.

36 Choi, who was convicted after a trial, was sentenced to imprisonment for 20 years including a non-parole period of 13 years. The sentence had been arrived at after a discount of one third on account of s16G. Choi who had engaged Prasad and another helper, become involved in the overseas paperwork, had travelled to Brisbane with Louis to be nearby at the time of delivery, was regarded as senior to Steven Sukkar, Prasad, Shepherd and El-Hani but subordinate to Louis and Joseph Sukkar and the sentencing judge was not satisfied that Choi was to share in the profits as opposed to receiving some other reward. An appeal to this Court was dismissed.

37 The quantity involved in these offences, some 69 times the minimum commercial quantity of MDMA, was relatively greater than in the Respondent’s offence where, as has been said, against a minimum commercial quantity of amphetamines of 0.75kg the amount imported was 34.6 kg, something less than 50 times as much. Otherwise I see no relevant difference in the base offences. The Respondent’s primary function was very similar to that of Shepherd even though – and I would give this no weight - Shepherd’s involvement was over a longer period. Shepherd did not, as the Respondent did, become involved in discussions involving the financing of the operation and the engagement of others. El-Hani’s involvement was clearly greater than that of the Respondent and Choi’s probably was. Prasad’s was appreciably less.

38 Given that most aspects of the importation were completed prior to his involvement and to a lesser extent his motivation, Steven Sukkar’s involvement and criminality were appreciably less than those of the Respondent. Louis and Joseph Sukkar were in a radically different situation compared with the Respondent and also provide no useful comparison.

39 In R v Moore [2005] NSWCCA 212 the offender had pleaded guilty to being in possession of prohibited imports namely not less the commercial quantity of MDMA. The quantity involved was 92.442kg (pure). The report is short but it seems clear that the offender had been involved in discussions prior to the importation and it was conceded that both the quantity of the drug and the level of the offender’s involvement reflected great criminality. At first instance he was sentenced to imprisonment for 20 years including a 15 year non-parole period. In arriving at this sentence, an allowance approximating 25% had been made on account of the offender’s plea remorse and contrition. The offender was aged 50 at the time of sentence. Latham J, with the concurrence of Studdert and Howie JJ, observed that “this was an offence approaching the worst category of an offence of this nature. In my view the head sentence of 20 years was well within his Honour’s sentencing discretion”.

40 There was no discussion by Latham J of the sentences imposed in other cases and, given that the issue before the Court was whether the sentence was excessive, I do not regard her Honour’s reference to the sentence being “well within his Honour’s sentencing discretion” as a considered endorsement of its sufficiency.

41 In R v Neale [2004] NSWCCA 311 the offender was a principal in effecting detailed planning for, and the importation of, 271,000 tablets containing a pure weight of 52.33kgs of MDMA with a wholesale value estimated to be between $2.7M and $5.4M. He was sentenced to imprisonment for life including a non-parole period of 21 years. This court rejected a challenge to the head sentence but solely upon the ground that the Appellant was aged 57 at the time of sentence and was liable to die in prison during the non-parole period reduced the non-parole period to 15 years. Given the differences, I regard this case as of limited assistance in the determination of the result of this appeal.

42 R v Nguyen and Ors (2005) 157 A Crim R 80 involved four offenders and a number of offences. It is sufficient for present purposes to consider only one offence involving the importation of 420,000 tablets containing 52.702kgs of pure MDMA. One offender, Pham had been sentenced to life imprisonment including a non-parole period of 23 years on a charge of importing the MDMA. He was found to be a principal in the offence though entitled to consideration for pleading guilty and an offer of assistance. Grove J observed that it was a matter of fine balance whether this court should intervene. It in fact set aside the sentence and imposed one of 27 years imprisonment. The sentence of 27 years was made cumulative to the extent of one year on the sentence for another offence and a non-parole period of 18 years was specified.

43 A second offender Nguyen had been sentenced to 25 years imprisonment including a non-parole period of 16 years and this was reduced to imprisonment for 21 years. This sentence also was cumulative to the extent of one year on the sentence for another offence. The non-parole period specified was 15 years 6 months.

44 A third offender To had been sentenced to imprisonment for life including a non-parole period of 20 years for being in possession of a prohibited import in the form of the MDMA – he seems to have been engaged by an overseas principal to watch over the drugs. This was reduced to imprisonment for 22 years including a non-parole period of 16½ years.

45 The reasons for allowing the appeal by Nguyen are not clear. There is no doubt that parity played a significant part in the Court’s decision so far as Pham and To are concerned and Nguyen certainly had a parity argument.

46 Reference was also made to the sentencing by Judge Norrish of “XYZ” , who was dealt with on the basis that after one unsuccessful attempt to deliver the boat, XYZ had assisted with finding premises large enough for storing the boat and in the removal of the drugs from the vessel and with tasks incidental thereto. He was arrested shortly thereafter and his involvement was limited to only a matter of days. His subjective circumstances included some positives and some negatives. He was given “the maximum discount” for pleading guilty and a 40% discount for co-operation with the authorities. The sentence imposed was one of 9 years including a non-parole period of 5 years. In light of the decisions to which I have already referred, I do not find it necessary to deal with “XYZ” beyond remarking that, when the discounts XYZ received are added back, and the difference in roles recognised, the sentence imposed on XYZ also argues for that imposed on the Respondent being too light.

47 Before turning to the issue of the conclusions to be drawn from the above, there are 4 further matters to which I should refer. The first is the way in which Judge Woods arrived at the sentence he imposed. His Honour said:-

“It seems to me that taking into account all of the considerations which I have mentioned, an appropriate overall starting point for calculating a sentence, having regard to comparable sentences and the objective facts in this case would be a sentence of twenty years’ imprisonment. I have taken into account various considerations, particularly the relative youth of the offender, his prior good character (to some limited extent) and a limited but real degree of assistance to the administration of justice in the conduct of the trial. I regard an appropriate head sentence as being 17 years imprisonment.”

48 His Honour’s use of the expression “starting point” was unusual. Normally, and in cases such as Shepherd and Prasad it encompasses all of the considerations relevant to sentence except discounts for s16G, a plea and/or assistance. Thus in the comparison to which I am about to turn, it is his Honour’s final figure of 17 years that it is appropriate to use.

49 The second matter is to acknowledge that in considering cases involving different drugs it is necessary to recognise that, to the extent to which the severity of offending is to be judged by quantity, it is necessary to have regard to the quantities stipulated in the legislation for those drugs – see R v Nai Poon (2003) 56 NSWLR 284.

50 The third matter to which reference should be made are the Respondent’s subjective circumstances and the general sentencing considerations referred to in the sentencing of Commonwealth offenders. There are no matters falling within the latter category which merit specific mention but it is desirable to refer to the former. The Respondent was aged 25 at the time of offending and had no criminal record. He had a somewhat dysfunctional upbringing although he maintained a close relationship with his mother. He left school prior to completing year 12. Thereafter he remained fully employed, during the last 3½ years being manager of a coffee shop. To the author of the Pre-sentence Report he maintained that he had never used illicit drugs.

51 The fourth matter concerns the Respondent’s “assistance to the administration of justice” to which Judge Woods referred. During the trial the Respondent made a number of formal admissions. His Honour expressed the view that “there is no doubt that the length of the trial was cut down by more than a month, probably six weeks or so, by the admissions made in exhibit …It is not to be compared with a full plea of guilty but, nonetheless, it is of some significance and I take it into account”. That it is appropriate to take such an approach to evidentiary admissions has been confirmed in R v Choi [2007] NSWCCA 150 at [149] et seq.

52 The patterns of sentences referred to in R v Wong argue for a much higher sentence than was imposed on the Respondent. Allowance has to be made for the fact that the sentences in both of the ranges referred to there reflected both allowance for a plea of guilty and a discount of about one third pursuant to s16G. A sequential allowance of discounts of, say, 10% for the former and 33⅓ % for the latter results in an overall discount of 40%. The 10 to 15 years indicated in the range most favourable to the Respondent thus equates to 16⅔ to 25 years in a case where there is no occasion for either discount. Furthermore the Respondent’s role was much higher than that of a mere courier and the quantity here was 46 times the minimum commercial quantity, not about 5 to 7 times the minimum commercial quantity that 10 kilograms of cocaine or heroin represent.

53 My analysis in R v Kevenaar argues in the same direction. Dealing with the discounts in the way referred to in the immediately preceding paragraph, the 8 to 10 year range mentioned equates to 13⅓ to 16⅔ years. The quantities contemplated in R v Kevenaar were only 1 to 2 times the minimum commercial quantity of ecstasy and the offenders were, or were treated as, couriers.

54 Putting aside the question of quantity, the starting point in Shepherd of 30 years argues for the 17 years here being much too low. So does the statement by Wood CJ at CL in Prasad to the effect that the head sentence should have been of the order of 17 years, once one recognises that that period was after a s16G discount and that the Respondent’s role was greater than that of Prasad. It must be acknowledged that when quantity is taken into account the strength of the argument based on the sentences imposed on Shepherd and Prasad is attenuated but, given that sentences in this area are not proportional to quantity, (even adjusted to take account of the statutory stipulations) those sentences still argue significantly for that imposed on the Respondent being too low.

55 I incline to the view that the sentence imposed in El Hani also argues in favour of the Crown appeal succeeding although the difference in role and quantity somewhat diminishes the strength of this. Given the extent of the differences I do not find the sentences imposed on the co-offenders of these three persons of use either for or against the contentions of the parties here.

56 Moore argues against the Crown’s contention although, for reasons I have indicated, I do not regard the sentence in that case as having any relevant endorsement by this Court. Neale, I have indicated, I regard as of no assistance. In that the decisions in Nguyen were based on parity, I regard those similarly.

57 In the result, I am of the opinion that the sentence of 17 years imposed on the Respondent was manifestly inadequate. Uninstructed by the authorities and by reference only to the statute I would have so concluded. At 34.8kgs, almost 50 times the minimum commercial quantity, and worth at least $5,000,000, the quantity and the value of the drug were high. It is notorious that so also is the potential profitability of drug importation and dealing. Given the severely damaging nature of the drug, the potential damage to the community was also substantial.

58 Having eschewed damaging his own life by drug use and solely for the reward doing so would bring, the Respondent elected to provide substantial assistance in the importation. Whether or not he knew the quantity involved, or simply did not care, and making full allowance for his subjective factors and admissions, his deliberate criminality requires a sentence substantially higher than one of 17 years with a non-parole period of only 10½ years. The reviews of cases conducted in R v Wong and R v Kevenaar lead inevitably to the same conclusion.

59 Although, this being a Crown appeal, there are the constraints common to all such appeals on the Court interfering, there are no particular factors in this case which argue against allowing the appeal. However, the extent of the inadequacy in the sentence under appeal and thus the increase which would be necessary to impose even the minimum sentence that should have been imposed at first instance do provide additional grounds for restraint and lead me to the view that the Court, in the exercise of the discretion it has in Crown appeals, should impose a sentence less, both in its overall length and in the proportion of it that constitutes the non-parole period, than the minimum that should have been imposed. Accordingly, I am of the view that the Court should make the following orders:-

1. Allow the Crown appeal;

2. Quash the sentence imposed on the Respondent on 2 February 2007;

3. Sentence the Respondent to imprisonment for a term of 25 years, including a non-parole period of 15 years.

4. Direct the legal advisers for the Respondent to provide to the Respondent an explanation of the above orders in accordance with the requirements of s16F of the Crimes Act (C’th).

60 HALL J: On 15 February 2007, the Director of Public Prosecutions for the Commonwealth of Australia gave notice that he desired to appeal to this Court against the sentence pronounced by the District Court of New South Wales on 2 February 2007. On that date, the respondent appeared for sentence on a charge against s.11.2(1) of the Criminal Code Act 1995 (Cth) and s.233B(1)(a)(iii) of the Customs Act 1901 (Cth) of aid, abet, counsel or procure the importation of a commercial quantity of methylamphetamine. In respect of that charge, he was convicted and sentenced to 17 years imprisonment with a non-parole period of 10 years and six months.

61 The ground relied upon in support of the application was that the sentence is said to have been manifestly inadequate.

62 On 30 October 2006, the respondent entered a plea of not guilty to the indictment charging him with the abovementioned offence.

63 The maximum penalty for the offence is life imprisonment and/or a fine not exceeding $825,000. It is noted that the Customs Amendment Act 2004, Schedule 1, item 68, created a commercial quantity for methylamphetamine, commencing 9 December 2004. This amendment is discussed below in paragraph [32].

64 On 16 November 2006 following a trial by jury, the respondent was found guilty of the offence. Both the head sentence and the minimum term referred to in paragraph [1] were stated to date from 8 February 2006, being the date that the respondent was taken into custody.

65 The facts are conveniently summarised in the written submissions filed by the Crown dated 9 March 2007 and that statement of facts is reproduced below:-

“5. On 12 October 2005, a container arrived in Sydney consigned to Van Bich Lam care of Merici College in Canberra. Inside the container was a speed boat and trailer. Concealed inside the speedboat were 46 packages of methylamphetamine.

6. The learned sentencing judge found that the respondent had agreed to assist Hoang Anh Bui import the speed boat (AB371).

7. The speedboat was examined by Customs officers on 13 October 2005 after anomalies were noted in an x-ray. While traces of methylamphetamine were detected there was no definite identification of the drug. The container was examined again by customs officers on 14 December 2005 when a larger hole was drilled revealing a plastic bag containing a crystalline substance. This substance was later analysed to be methylamphetamine. Forty-six packages were removed by the Australian Federal Police. The police substituted an inert substance for the methylamphetamine and the boat was reconstructed (AB372).

8. The learned sentencing judge found that there were various telephone calls between the respondent and Bui, including a call on 24 December 2005 where the respondent warned him of the delays in clearing the container (AB372). Further delays occurred due to the respondent’s lack of familiarity with procedures for clearing a container through customs and there was a build-up of money owed for storage. By 13 January 2006, some $37,000 was owed because of the delay. His Honour referred to a chat conversation between the respondent and Bui (who had travelled to Vietnam on 11 January 2006) on 13 January 2006 (AB252) where they both appeared perplexed by the sum owed (AB373).

9. After the respondent confirmed the amount owed, and that the container would not be released until the money was paid, he paid, on 31 January 2006, more than $45,000 into the customs broker’s bank account. His Honour found that the respondent then went to a chemist in Marrickville and faxed a copy of the receipt to Bui and the customs broker. Police officers saw him rip up a document and put the pieces in a rubbish bin. His Honour said that ‘no doubt the jury took the view that this was consistent with somebody who was involved in an illicit operation’ (AB373).

10. The learned sentencing judge described the 2 February 2006 attempt to deliver the container to the Regent’s Park address as a ‘fiasco’ (AB373). He observed that the respondent had no notion of the practicality of it, which involved depositing the container at an ordinary suburban house in a suburban street. His Honour found that the respondent’s criminal knowledge and awareness of it was reflected in his keeping himself away from actual or purported delivery points (AB374).

14. On 4 February 2006, To and Bui took part in a chat room conversation (AB287). The transcript of that chat conversation contains numeric entries. These numbers are a code for drawings which were made simultaneously with the text of the chat conversation. The decoded images were copied onto a CD and were played to the jury during the course of the trial (Trial Exhibit S). The image of the drawing and chat message at 17:44:19 from anh73k (Bui) to thien_ly_huu_rinh (the respondent) ‘that’s where it is’ is at page 302A of the Appeal Book. The learned sentencing judge found that the purpose of the drawings was to identify the point at which the boat could be sundered in order to get at the concealed goods AB374).

15. On 6 February 2006, the container was delivered to Jay Heathcote’s property at 17 Findley Road, Bringelly at about 5.45 pm. The activities of Heathcote, Ngoc Minh Pham and Luke Burnett that evening were recorded by a listening device. In addition to drilling sounds, they were recorded talking about what they were doing:-

Pham said and was heard to say ‘that’s the shit’ which the jury no doubt took accurately to reflect an awareness that they had regarded themselves as having ‘hit pay dirt’ with the drugs. There was no mention that there was an absence of gold or jewellery. (AB374).

16. Pham, Burnett and Heathcote were arrested on 7 February 2006 at the Bringelly premises. The respondent was arrested on 8 February in Glebe and charged with the offence for which he was convicted.

17. Bui returned to Australia on 15 February 2006 and was arrested.”

66 The Crown identified in its written submissions (paragraph 22) three substantial issues in the sentencing proceedings, namely:-

(a) the assessment of the respondent’s role;

(b) the discount for making admissions at trial; and

“starting point”

67 The Crown relied upon the recorded chat room conversations between Bui and the respondent. It submitted that the relationship between them was approximately equal. As the Crown’s written submissions observe, the sentencing judge formed the view that the respondent played the principal role in Australia, although Bui was a more highly placed principal in the enterprise than the respondent.

68 The sentencing judge stated that it was clear that Bui knew of or arranged the sending to Australia of the speed boat in a container. It was by reason of incompetence on the part of those involved in the exercise that the container stayed on the docks for a number of months. In due course, it alerted the interest of Customs officials. The sentencing judge observed that the respondent became involved with Bui after Bui approached him and agreed to assist him to import the speed boat. The respondent had told the jury that Bui had informed him at some point in time that what was contained in the boat was stolen gold and jewellery. His Honour described this account, relied upon to persuade the jury, as a “ludicrous proposition” and that the jury had quite properly rejected it.

69 The remarks on sentence record the events following the arrival of the container containing the speed boat and prohibited drugs and the role played by the respondent in obtaining monies following discussions with Bui required to pay storage charges.

70 After describing the initial unsuccessful attempt of the delivery container to a residential address at Regents Park (described in the remarks on sentence as “a fiasco”), the sentencing judge observed that the respondent clearly had no notion of the practicality of effecting the delivery, but that his criminal knowledge and awareness of the contents of the container were reflected in the fact that he kept himself away from the actual delivery points or purported or attempted delivery points.

71 Reference was also made to further communications on 4 February 2006 between the respondent and Bui in which an image outlining the features of the boat were sent to the respondent clearly for the purpose of identifying the points at which the prohibited goods were located.

72 In the remarks on sentence (AB375), the sentencing judge referred to the Crown’s submission as to the fact that the respondent had played a significant role in the operation and that he accepted the matters set out in Exhibit S1, a document prepared for the sentencing proceedings. The sentencing judge there stated:-

“… he did play, no doubt, the principal role in Australia and nonetheless, even though what the Crown points out at Exhibit S1 is factual, my interpretation of the relevant roles is that Bui was a more highly placed principal than To.

I accept that he clearly went out of his way to avoid being present both at Regents Park and Bringelly when attempts were made to deliver. It is clear that To used false names. It needs to be said that mere ignorance and stupidity is no defence. Ignorance of Customs’ procedures may show criminal incompetence but it is, in itself, no particular mitigation.

The degree of criminality which is to be ascribed to To in his criminal conduct or aiding and abetting the importation is above that of a courier and is that of a principal, but I find him to be a slightly less significant principal than the man Bui.”

73 The sentencing judge then referred to the Probation & Parole Service report, a copy of which is at AB323 - AB326.

74 The remarks on sentence record the fact that the respondent has no prior convictions and that there had been some disturbance in his history relating to parents, he having come from Vietnam, but that that was not “an extraordinary background”.

75 The sentencing judge then referred to the factors required to be considered in accordance with the provisions of s.16A of the Crimes Act 1914 (Cth). In the course of dealing with the nature and circumstances of the offence, his Honour noted that the offence involved a course of conduct that took place over some period of time.

76 The sentencing judge also had regard to the fact that the respondent had made a series of admissions which were set out in Exhibit S2 which resulted in the length of the trial being reduced by more than a month and probably six weeks or so (AB377). Whilst these admissions were not to be compared with a full plea of guilty, the sentencing judge stated that they were of some significance and that he would take them into account.

77 In relation to the question of deterrence, the sentencing judge stated (AB377 – AB378):-

“… I have no doubt that this sentence of imprisonment which I am about to impose will effect personal deterrence upon this young man. It is necessary in addition, the courts have said, that general deterrence should be recognised as a purpose of sentence in a case such as this. Other people must be deterred from attempting to embark upon this kind of conduct. The Parliament and the community, reflected in decisions of the Court, severely disapprove of the importation of illegal drugs, as reflected in the available maximum penalty for this offence. The public and the Parliament recognise that many individual people in the community are severely degraded and damaged by the use of illegal substances. Those who deliberately involve themselves in importing prohibited drugs such as this deserve severe punishment in order to deter other people. They also deserve severe punishment for their own moral culpability, which is reflected in s.16A(2)(k) of the Crimes Act, the need to ensure that the person is adequately punished for the offence. The sentence which I will impose represents severe punishment for this misbehaviour.”

78 In relation to subjective matters, the sentencing judge referred to the absence of any prior criminal history with offences of the kind in question but that was only “a relatively minor consideration”.

79 The sentencing judge also considered that the respondent had good prospects of rehabilitation although noting that it was difficult to predict with any certainty how he would behave following release.

80 In determining the sentence, a starting point, by reference to comparable sentences and the objective facts of the case was stated to be 20 years’ imprisonment. The sentencing judge also stated that he took into account various considerations including the relative youth of the offender (age 26 years) and to a limited extent his prior good character and limited but real degree of assistance to the administration of justice in having made the admissions earlier referred to.

81 He noted that the respondent had come to Australia in 1992, he having, at that time, Vietnamese nationality. The respondent, in evidence, stated that he worked in a shoe factor in St Peters in 1998 and subsequently at Bondi in a grocery store and then for a few years after that in a coffee lounge at Marrickville.

82 The sentencing judge ultimately determined that an appropriate head sentence was 17 years imprisonment. That sentence was determined following account being taken of the matters referred to under s.16A and “… the need not to deviate grossly from the sentencing approach with respect to co-offenders”. His Honour then fixed a non-parole of 10 years and six months.

83 The Crown, in its written submissions, set out the well-known principles by which a Crown appeal against sentence is to be determined. Reference in this respect was made to the High Court’s judgment in Everett v. The Queen (1994) 181 CLR 295 and the re-statement of those principles by this Court in Regina v. Wall [2000] NSWCCA 42 and in Regina v. MD, BM, MA, JT [2005] NSWCCA 342.

84 In Wall (supra), it was stated (at [70]):-

“… It is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:-

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in

House v The King

(1936) 55 CLR 449, 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 a 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;

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:

Regina v Baker

[2001] 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 34 at para.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:

Regina v Allpass

(1993) 72 A Crim R 561;

Regina v Papazis

(1991) 51 A Crim R 242 at 247, and

Wong & 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 from that which should have been imposed by the sentencing court:

R v Holder & Johnson

(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.”

85 The Crown accepted that appeals by the Crown should only be granted in rare circumstances but it was submitted that, having regard to the abovementioned principles, this case fell within that category and the Court, accordingly, should intervene.

86 The Crown accepts that the sentencing judge correctly outlined the respondent’s activities and makes no criticism of findings made in that respect (paragraphs 28 and 29 of the Crown’s written submissions).

87 The Crown further accepted the sentencing judge’s characterisation of the respondent’s position in the hierarchy (Crown’s written submissions, paragraph 33).

88 The Crown submitted that in taking as a starting point a sentence of 20 years’ imprisonment, the sentencing judge “may have given too much allowance” for the admissions made by the respondent and the effect they had in shortening the trial (Crown’s written submission, paragraph 35).

89 The Crown further submitted that a significant sentence was called for in these proceedings, but that the sentence imposed failed to reflect that:-

“… it is submitted that the sentence imposed fails to reflect the criminality inherent in that finding ]the finding as to the respondent’s role]. Unlike Burnett, who was involved for less than a week and played a limited role, the respondent was involved as the Australian principal for a period of four months and was responsible for ensuring that the importation came to fruition.”

90 The commencement point in any consideration of an appropriate sentence for a statutory offence is the statute itself.

91 On 8 December 2004, Schedule VI of the Customs Act 1901 did not specify a commercial quantity for methylamphetamine. Prior to that date, the maximum penalty for the importation of the drug greater than the traffickable quantity of two grams, was 25 years. On 9 December 2004, Schedule VI was amended to provide for a commercial quantity for methylamphetamine of 0.75 kilograms. As a result, persons involved in the importation of amounts greater than 0.75 kilograms were liable to imprisonment for life.

92 The Crown relied upon the fact that the quantity of methylamphetamine involved in the importation in question (34.8 kilograms) was many times the commercial quantity provided for in the legislation and that the sentence imposed, it submitted, does not reflect Parliament’s intention that persons convicted of the offence of importation of substantial quantities of the drug be sentenced to significant periods of imprisonment.

93 The Crown further submitted:-

“44. This enterprise involved careful planning, expert concealment of the methylamphetamine and the respondent’s diligence over a period of four months. In light of the plea of not guilty and his Honour’s findings that the respondent was the Australian principal, the appropriate starting point for sentencing involving that degree of criminality and quantity of methylamphetamine should have been substantially higher than 20 years imprisonment. The appropriate non-parole period would be in the range of 60 to 66%.”

94 In the determination of a proper penalty “… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit trade in the prohibited drug”: Regina v. Peel (1971) 1 NSWLR 247 at 262 referred to in Regina v. Kevenaar (2004) 148 A. Crim. R. 155 at 169 per Hulme, J.

95 Section 233B(1) of the Customs Act 1901 (Cth) provides:-

“(1) A person commits an offence if:-

(a) the person:-

(i) possesses goods on board a ship or aircraft; or

(ii) brings goods into Australia; or

(iii) imports goods into Australia; or

(iv) possesses goods that have been imported into Australia in contravention of this Act; or

(v) conveys goods that have been imported into Australia in contravention of this Act; or

(vi) possesses goods that are reasonably suspected of having been imported into Australia in contravention of this Act; or

(vii) fails to disclose to an officer on demand any knowledge in is or her possession or power concerning the importation or intended importation, or bringing or intended bringing, into Australia of goods, and

(b) the goods are a prohibited import to which this section applies.”

96 The relevant provision in this case, as earlier indicated is s.233B(1)(a)(iii).

97 The quantity of the prohibited substance involved in the respondent’s offending was 34.8 kilograms of methylamphetamine. This was 46.4 times that which Parliament selected as the dividing line between penalties for traffickable and commercial offences. It was said to have had an estimated minimum value at the time of seizure of $5,000,000.

98 The jury plainly rejected the respondent’s evidence as to his belief that the boat contained stolen gold and jewellery and accepted the Crown case. Whilst there was no evidence demonstrating that the respondent knew of the quantity of drugs involved, that is not a relevant consideration. It has been held that it is not a mitigating factor that an offender was unaware of the quantity of a prohibited drug. Once the offender is convicted of an offence, he or she is taken to have known of the presence of the drug: Regina v. Kaldor [2004] NSWCCA 425.

99 The importance of imposing punishments harsh enough to act as a real disincentive to those tempted to participate in the importation of prohibited drugs is well recognised: Kevenaar (supra) per Hulme, J at 170.

100 In Regina v. Dang [2005] NSWCCA 430, a case involving an offence under the Drug Misuse & Trafficking Act 1985 (NSW), Howie, J., with whom Studdert and Whealy, JJ. agreed, stated:-

“This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather, the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence:

Regina v. Nai Poon

(2003) 56 NSWLR 284;

Regina v. Neale

(2004) 138 A. Crim. R. 493.”

101 In this case, the pure quantity of the methylamphetamine imported is a matter of importance in the determination of an appropriate sentence. That said, however, the question of weight is a matter to be put in its proper context. In Wong v. The Queen (2001) 207 CLR 584, it was observed in the joint judgment (Gaudron, Gummow and Hayne JJ) at 609:-

“The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliaments’ distinguishing between the maximum sentence which may be imposed for offences involving traffickable and commercial quantities (Customs Act, s.235). No doubt, within both of those categories, the particular amount of narcotics involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?

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.

These are reasons enough for concluding that the Court of Criminal Appeal was in error in attributing chief importance to the weight of narcotic in fixing sentences for the offence. The error of the Court is, however, more deep seated than the factual difficulties to which reference has been made. The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle.”

102 In that case, their Honours referred to the explicit obligations imposed by s.16A(2) of the Crimes Act 1914 (Cth) at 610:-

“… to the extent that the matters identified in s.16A(2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only ‘the nature and circumstances of the offence’ but also matters such as the degree to which the offender has shown contrition’ (s.16A(2)(f)), ‘the offender’s character, antecedents, cultural background, age, means and physical or mental condition’ (s.16A(2)(m) and ‘the need to ensure that the person is adequately punished for the offence’ (s.16A(2)(k). What is notably absent from s.16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. There is no statement of the kind found, for example, in the Sentencing Act 1991 (Vic) (s.5) of the

purposes

for which sentences may be imposed, and there is no statutory requirement which obliges a sentencer to give particular weight to one or other of those purposes in sentencing certain kinds of offender (cf. Sentencing Act 1991 (Vic), s.6D(a)), which directs the Court sentencing a ‘serious offender’ to regard the protection of the community from the offender as ‘the principal purpose for which the sentence is imposed’. Section 16A obliges the sentencer to take

all

of them into account and effect must be given to that legislative command.”

103 As Grove, J. in Regina v. Nguyen (2005) 157 A. Crim. R. 80 at 90 observed, it is obligatory for the sentencer to take into account the known factors when making the initial assessment of head sentence.

104 In that case, his Honour observed (at pp.90 to 91) that, whilst the prescription by Parliament of an available sentence of life imprisonment is a circumstance of importance to be taken into account, a critical consideration (in that case involving the importation of 52.702 kilograms of pure MDMA) when the criminality of a participant in drug importation stands for sentence is to determine what the particular offender did.

“couriers”

“principals”

“courier”

“principal”

105 The antecedent absence of a criminal conviction is a matter to be taken into account unless an inference may be drawn that the offender had been, for example, an experienced drug trafficker: Nguyen (supra) at 92.

106 In the present case, there is no suggestion that an adverse inference of that kind can be drawn against the respondent.

107 In the present appeal, the respondent’s involvement in the importation was summarised in the Crown’s written submissions (paragraph 18) as follows:-

“• the clearance of the container and speedboat through Customs, beginning shortly after the container’s arrival in Sydney on 12 October 2005;

• contacting Ms Lam, obtaining her signature on a document which allowed him to continue to deal with the container (AB47 to AB51, AB97 to AB99);

• liaising with Bui regarding the progress of the container’s clearance (AB79 to AB81, AB96 to AB97, AB138 to AB140);

• using false names to conceal his identity (AB70 to AB72, AB148 to AB149, AB250 to AB251);

• using telephones which were connected in different names and at addresses where he did not live (AB71, AB73 to AB78, AB1900 to AB105, AB112 to AB114, AB127 to AB128, AB139 to AB132, AB250);

• inspecting both delivery addresses: 20 Regent Street, Regents Park on 10 January 2006 (AB148 to AB151, AB158, AB162, AB222 to AB223) and 17 Findlay Road, Bringelly on 2 February 2006 (AB8 to AB12, AB39 to AB42, AB219, AB226)’

• requesting and receiving money from Bui and overseas principals which he used to pay IFB Network invoices (AB52 to AB53, AB61 to AB63, AB81 to AB83, AB170 to aB172, AB175 to AB178, AB181 to AB183, AB185 to AB187, AB192 to AB213);

• recruiting Pham to assist in obtaining a delivery address (AB65, AB223 to AB228);

• obtaining directions from Bui regarding the location of the drugs in the speedboat (AB67 to AB38, AB235 to AB237, AB246 to AB247).

• passing on the location of the drugs to Pham and Burnett (AB16 to AB19, AB39 to AB43, AB133 to aB135, AB242 to AB243); and

• giving money to Burnett to purchase a tarpaulin and power tools (AB9 to AB11, AB17 to AB20, AB37 to AB38, AB133, AB135, AB219 to AB226, AB246).”

108 The sentencing judge stated in his remarks on sentence (AB375)

“… he did play, no doubt, the principal role in Australia and, nonetheless, even though what the Crown points out at Exhibit S1 is factual, my interpretation of the relevant roles is that Bui was a more highly placed principal than To.

109 The sentencing judge also observed that the respondent went out of his way to avoid being present both at Regents Park and at Bringelly when attempts were made to deliver and that the degree of criminality that is to be attributed to the respondent’s criminal conduct of aiding and abetting the importation was, as noted above, that of a courier and was that of a principal “… but I find him to be a slightly less significant principal than the man Bui” (AB375).

110 In Regina v. Stanbouli (2003) 141 A. Crim. R. 531 at 533, Spigelman CJ. (Carruthers AJ agreeing) stated that he would reserve the term of life imprisonment to the importation of significant quantities of prohibited drugs. That case involved the importation of heroin amounting in all to a pure weight approximately of 375 kilograms and wherein, on a Crown appeal, a sentence of 13½ years imprisonment with a 10 year non-parole period was increased to 19 years imprisonment with a non-parole period of 12 years).

111 Whilst giving full effect to the express findings made by the sentencing judge in the present case as to the respondent’s role and, in particular, the facts surrounding the importation which establish activities of the respondent by way of aiding and abetting others in the importation, there is no suggestion of him having been an entrepreneur who conceived and devised the criminal enterprise. His role, whilst not entrepreneurial in nature, arose on the Australian side of operations and, in that respect, the activities as described earlier were important in aiding and assisting the importation.

112 Whilst no two cases are identical, sentencing patterns are not infrequently considered as a guide or a check: see, for example, the analysis of Hulme, J. in Kevenaar (supra) at 170 to 174. The summary of sentencing patterns in respect of offences involving commercial quantities of prohibited substances referred to in this judgment is, accordingly, intended as a guide only for the purposes of the present Crown appeal.

113 In Regina v. Neale (2004) 148 A. Crim. R. 493, the appellant was found by a jury to be guilty as charged. The sentencing judge imposed a term of imprisonment for life and set a non-parole period of imprisonment for 21 years.

114 The quantity of MDMA/Ecstasy involved in the case (where a commercial quantity of that substance was 500 grams or more) was of a gross weight of 105.54 kilograms and a pure weight of 52.33 kilograms. The wholesale value of the consignment was estimated as lying between $2.7 million and $5.4 million.

115 In the course of his judgment, Sully, J. (with whom Grove and Kirby, JJ. agreed) followed the approach taken by this Court (Ipp, JA., Hulme and Bell, JJ) in Regina v. Nai Poon (2003) 56 NSWLR 284 citing passages 16 to 20 in the judgment of Ipp JA.

116 Sully J referred to the relevant findings as entailing the willing participation by the appellant in the importation into Australia of an enormous quantity of a prohibited drug. The appellant was not himself a person with a drug addiction of any kind and his willing participation was explicable only upon the basis that he was seeking substantial financial gain.

117 Sully J observed that 500 grams of MDMA was the minimum amount prescribed by the legislature as constituting a commercial quantity of MDMA or the trigger for opening up a range of sentences, the high point of which was a sentence of imprisonment for life as is the case in the present appeal. Sully J observed at 511 to 512:-

“… it could not be contended sensibly, in my opinion, that an MDMA-related offence concerning a quantity of 500 grams or a trifling amount above that level, could attract, the most exceptional circumstances apart, a sentence of imprisonment for life. It must be, however, that the more a particular offence is removed, in terms of quantity, from the bare minimum of 500 grams, then the more apt the offence is to be characterised as a worst class of case of the kind; and the more apt, therefore, the offence becomes to attract the statutory maximum penalty. The deliberate importation into this country of an amount of MDMA that is 100 times the prescribed minimum amount must constitute, as a matter of commonsense, as it seems to me, an offence which is well capable of being categorised as the worst class of case of its kind.”

118 Sully J observed that it does not follow, of course, that such a conclusion entails the more or less automatic passing of the statutory maximum sentence of life imprisonment. Whether that should be the end result of the particular sentencing exercise must depend upon the proper bringing into account of relevant subjective matters. In the end result, this Court did not consider that the head sentence was manifestly excessive and declined to disturb it.

119 The Court did, however, vary the non-parole period set so as to reduce it from a period of 21 years to a period of 15 years. This was the “strongest point” in the appeal, it being said that the appellant (57 years at the date of sentence) would be 77 years old on release. It had been submitted that it was likely that he would die in gaol.

120 In Regina v El Hani [2004] NSWCCA 162, the applicant pleaded guilty to one charge of being knowingly concerned in the importation of a commercial quantity of MDMA, ecstasy, contrary to s.233B(1)(d) of the Customs Act.

121 He was sentenced to imprisonment for 15 years with a non-parole period of 10 years.

122 The ecstasy tablets contained 34.401 kilograms of pure drug having been imported on 15 October 2001.

123 The sentencing judge determined that the applicant had a financial interest in the shipment. It did not consider the applicant to be a principal but that he had had a “managerial role” as far as the importation was concerned. The applicant had travelled to the Netherlands to attend a meeting with co-offenders concerning the importation into Australia of ecstasy. He then travelled to Brazil where he received a call advising him of the shipment of drugs. He had several discussions with a co-offender in Australia about looking into the assumed disappearance of some of the drugs to be imported and who might be responsible. The applicant made additional inquiries and then travelled to Australia. He went to premises where the tablets were stored.

124 The sentencing judge determined a discount of 12.5% for assistance and 12.5% for his plea of guilty was appropriate for assistance. On appeal, Howie, J. (with whom Simpson and Bell, JJ. agreed) stated that the applicant had an active and substantial managerial role in discussions with persons overseas who were the clearly the overseas principals and with the Australian principal after the drugs were found to be missing.

125 The Court declined to intervene with respect to the sentence of imprisonment of 15 years with a non-parole period of 10 years (ie, 20 years and 13 years, six months non-parole allowing for the discounts allowed). I will return to the significance of the sentence determined in El Hani below.

126 In Regina v Moore [2004] NSWCCA 212, the applicant appealed against a sentence imposed following a plea of guilty to a charge under s.233B(1)(a)(vi) of the Customs Act, namely, that he was in possession of prohibited drugs being a quantity of MDMA not less than the commercial quantity applicable to that drug. The offence carried a maximum penalty of life imprisonment.

127 The applicant was sentenced on the basis that he had in his possession 92.442 kilograms of pure MDMA. He was sentenced to a term of 20 years imprisonment with a 15 year non-parole period (implying a starting point of about 26 years).

128 The estimated value on a retail basis of the MDMA tablets was in the order of $37 million to $54 million and, if sold wholesale, the estimated value was approximately $14 million.

129 No issue was taken with the sentencing judge’s characterisation of the applicant’s role in the commission of the offence and it was conceded that the quantity of the drug and the level of involvement of the applicant reflected very great criminality.

130 The applicant challenged the discount for assistance and the plea of guilty. This Court was not satisfied that an overall discount allowed of 25%, as a reflection of the applicant’s assistance and plea of guilty and remorse and contrition, was other than appropriate to the circumstances of the case.

131 It was argued that the starting point in that case of 26 years and 8 months, followed by the application of the 25% discount which produced the head sentence imposed, was manifestly excessive. However, Latham, J. (with whom Studdert and Howie JJ agreed) stated that this analysis, together with the applicant’s age on sentence (50 years) completely ignored the objective gravity of the offence. The ultimate sentence imposed, both as to the non-parole period and the head sentence was held not to be disproportionate to the objective gravity of the offence. The Court emphasised that, given the amount of the pure MDMA in the applicant’s possession for distribution into the wider community “… this was an offence approaching the worst category of an offence of this nature”. The head sentence of 20 years was held to be well within the sentencing judge’s discretion.

132 In Regina v Nguyen (supra), the Court dealt with four applications for leave to appeal against severity of sentence by applicants Nguyen, Pham, Vu and To. The sentences had been imposed by Sully, J.

133 The facts concerning the offences may be shortly stated as follows. There were three offences, although the applicants had been charged and sentenced somewhat differently in relation to each:-

(a) Offence 1 – importation of 52.702 kilograms of pure MDMA.

(b) Offence 2 – importation of heroin in a bottle labelled “Bailey’s Irish Cream” , analysed on sentencing as containing 477.8 grams of pure heroin.

134 The evidence established that one Lam was a principal in Hong Kong. With the exception of Vu (described as a local courier) the appellants had a variety of direct and indirect contacts with Lam. In summary:-

(a) The appellant, Pham Van Hau (referred to in the judgment and below as “Pham”), was convicted of importing a commercial quantity of the drug MDMA and Nguyen Thanh (Pham’s wife) was convicted of being knowingly concerned in the importation of the drug.

(b) The appellant To was convicted of being in possession of a commercial quantity of the drug.

(c) The appellant Vu was convicted of conveying a commercial quantity of the drug.

(d) Nguyen Dinh was convicted of a State charge of being knowingly concerned in the supply of such quantity.

(e) The applicant Pham and Nguyen Dinh travelled to Hong Kong (where contact was made with the principal Lam) and they also travelled to Malaysia and Vietnam.

(f) Numerous telephone contacts occurred between the various parties to the criminal enterprise.

(g) The final step in the MDMA importation occurred on 21 September 2001 involving the despatch of an express airway bill addressed to Pham. This related to the cargo consisting of a container containing the drugs and which berthed in Sydney on 2 October 2001.

(h) Pham gave instructions to freighting agents and the container was delivered to Punchbowl. Pham and Nguyen Dinh called at those premises from time to time.

135 The sentences imposed and against which leave to appeal was sought were as follows:-

(a) Pham was sentenced in respect of the “heroin bottle charge” to 15 years imprisonment from 16 October 2001. In respect of the offence of importing a commercial quantity of MDMA, he was sentenced to life imprisonment from 16 October 2003 and a non-parole period of 23 years from that date. The effective overall term was construed as being life imprisonment with a non-parole period of 25 years.

(b) Nguyen Thanh (Pham’s wife) in respect of the offence of knowingly concerned in the importation of a traffickable quantity of heroin (the heroin bottle charge), was sentenced to imprisonment for 15 years from the date of arrest (16 October 2001) and for being knowingly concerned in the importation of a commercial quantity of MDMA to a term of imprisonment of 25 years from 16 October 2003 with a non-parole period of 16 years . Accordingly, the effective overall term of imprisonment was considered as 25 years imprisonment with a non-parole period of 18 years.

(c) To, in respect of the offence of being in possession of a commercial quantity of MDMA, was sentenced to life imprisonment from 16 October 2001 with a non-parole period of 20 years .

term of 10 years imprisonment

non-parole period of 6 years from that date

136 In relation to the minimum terms imposed of 25 years with respect to Pham and 18 years with respect to Nguyen Thanh, Grove, J. observed that Pham was the principal in Sydney in the MDMA offence. He made journeys to places such as Hong Kong where Lam was generally located and to Malaysia and to Vietnam with evidence indicating the release and delivery of the container as involving telephone conversations (intercepted) between Pham and Lam. Pham provided instructions to freighting agents as to where the container was to be delivered and from time Pham and Nguyen Dinh called at the premises. Pham visited after the delivery and reported to Lam what had happened. Pham was involved in the physical activities of transferring tiles containing the drugs into crates which were delivered to Pham’s residence and on another occasion, Pham took a crate containing the tiles to other premises. Pham made contact with a “customer” and subsequently met with that person. The customer received some of the prohibited drugs during the course of that meeting.

137 Subsequently, Shillington, DCJ. sentenced Nguyen Dinh (convicted of a State charge of being knowingly concerned in the supply of such quantity), following a plea of guilty, and for being knowingly concerned in the importation of traffickable quantities of heroin and MDMA (the postal charges) to imprisonment for eight years from 16 October 2001 (to be served concurrently and for being knowingly concerned in the importation of a traffickable quantity of heroin) (the heroin bottle charge) to a term of imprisonment for 10 years to date from 16 October 2001. For being knowingly concerned in the supply of a commercial quantity of MDMA, Vu was sentenced to imprisonment for 22 years with a non-parole period of 16 years and six months to date from 16 October 2003. Accordingly, the overall sentence imposed was construed as being 24 years imprisonment with a non-parole of 18 years and six months.

138 In Regina v Sukkar [2005] NSWCCA 54, the appellant stood trial and was convicted on a charge of being knowingly concerned in the importation of narcotic goods (ecstasy) to the value of $7.2 million and $12. million. He was sentenced to imprisonment for 14 years with a non-parole period of 9 years.

139 The Crown contended in that case that the appellant’s knowing concern was demonstrated by his participation in the unloading of columns which contained the drug and the sorting of tablets removed in search for genuine ecstasy amongst certain inert tablets and in making extensive inquiries as to the whereabouts of the balance of the consignment which was suspected as stolen. The bulk weight of the total consignment was 123.75 kilograms or 34.401 kilograms of pure ecstasy.

140 The appellant submitted that the sentence was manifestly excessive. Wood, CJ. at CL. (with whom Hidden, J. agreed) stated that, absent any evidence of the appellant having been knowingly concerned in the venture before 24 November 2001 (the ecstasy tablets arrived in Brisbane on 17 November 2001) or of him standing to gain any financial benefit from it “… his objective criminality needed to be assessed upon the basis of the active assistance which he provided to his brothers, in permitting the cool room and tablets to remain on his premises, in assisting physically in the attempts to recover drugs from them, and in pursuing various enquiries aimed at discovering where the missing drugs were so as to retrieve them for his brothers” (paragraph 151).

141 The appellant’s role was characterised as that of a knowing assistant to his brothers, rather than a principal, or accomplice who expected monetary reward. That, however, was not to say that it was an insignificant role (paragraph 152):-

“… by the time that he became deeply involved from 1 December, he clearly knew that the venture was one of considerable substance, which potentially involved very large sums of money. Despite his prior good character, he became enthusiastically involved, and his objective criminality was high, although not as high as those who stood to gain financially from it.”

142 It was by reason of the appellant’s limited role that this Court and other matters (including highly favourable subjective circumstances) that the appeal was upheld. The appellant was re-sentenced on the basis of a starting point of 16 years and after a discount of one-third, to a term of imprisonment of 11 years with a non-parole period of seven years.

143 The essential point in the Crown’s submissions is that the sentencing judge, in relation to a co-offender of the respondent, in Regina v XYZ (13 October 2006), took 20 years as the starting point (AB311, lines 5 to 20) in that matter. This is derived by allowing for a 15% discount for the value of the early plea and 40% for assistance. The Crown’s submission assumes that the starting point of 20 years in respect of the sentencing of XYZ is to be taken as a measure of some precision that can be used as a comparative base point for the purposes of the present appeal.

144 I do not consider that the approach taken in XYZ is necessarily to be taken and regarded as a reliable or proper basis for the purposes of undertaking the required analysis in the present proceedings.

145 First, whilst the sentencing judge in XYZ, with respect, appropriately identified XYZ’s role as being “somewhat peripheral” and being far less culpable than either the respondent or Minh (AB351), the implied starting point of 20 years cannot necessarily be taken as a precise marker. A starting point involves a discretionary determination. It is not a readily identifiable point on a scale that is binding. It is a matter of evaluation which falls within a discretionary range. Given the peripheral involvement of XYZ, the starting point of 20 years could, in any event, be seen to be located at the very high end of the possible range of starting points, if not above that range. On that basis, XYZ’s criminal culpability would have to be regarded as extremely high in comparison, for example, to Sukkar (supra).

146 The Crown submitted to the sentencing judge in the present case that the offender Pham, whose involvement was as described by the sentencing judge (see AB374 to AB375) as above XYZ in terms of culpability and that the respondent was above Pham again (AB311, lines 20 to 22):-

“… We would submit that we’re looking at figures well into the 20’s as the starting point for Mr. To …”

147 The Crown has submitted to this Court that the appropriate starting point for sentencing in these proceedings “… should have been substantially higher than 20 years’ imprisonment”. Given that the Crown accepts the sentencing judge’s findings of fact, and his characterisation of the respondent’s role the question arises as to what “substantially higher” means in the context of the present case.

148 Although commonly a starting point sentence is taken as reflecting the objective seriousness of the offence and adjusting for the subjective circumstances, in the present case, the sentencing judge took a different approach. As noted earlier, his Honour stated that he considered an appropriate overall starting point for calculating a sentence “… having regard to comparable sentences and the objective facts in this case, would be a sentence of 20 years’ imprisonment …” (AB 379). It is noted here that his Honour did not, in arriving at the 20 year starting point, take into account subjective factors.

149 His Honour then went on to adjust that starting point for other matters, including the “… the relative youth of the offender, his prior good character (to some limited extent) and a limited but real degree of assistance to the administration of justice in the conduct of the trial …”.

150 The sentencing judge proceeded to state that the appropriate head sentence, after allowing for these matters, was 17 years imprisonment.

151 In relation to the assistance to the administration of justice (referred to in paragraph [90] above), his Honour stated that the admissions made in the course of the trial cut down the length of the trial by more than a month, “… probably six weeks or so …” (AB 377).

152 Accordingly, on this approach, the starting point was adjusted downwards to 17 years imprisonment (a reduction of 15% from the starting point).

153 The appeal raises the question as to whether or not the starting point of 20 years was an appropriate one, having regard to the findings made concerning the nature of the activities undertaken by the respondent, his role, and generally by reference to the overall objective criminality of the offence.

154 In deciding this question, reference has been made to sentencing in relation to offences in other cases involving offences contrary to s.233B(1) of the Customs Act 1914 (Cth). The Crown provided a schedule of sentences attached to its written submissions and subsequently it provided a supplementary schedule of sentencing remarks in other cases. The latter schedule was stated to have been chosen on the basis that there had been a substantial importation of drugs and that the offender played a significant role in that importation and in many of the cases was the local manager or one of the principals.

155 In Regina v Shepherd (2003) 142 A Crim R 101, the offender, who was aged 44 years at the time of being sentence, had no relevant criminal history. Discounts were allowed for the plea of guilty and for assistance. The offence involved the importation of 34.401 kilograms of ecstasy contained in 480,000 tablets weighing 123.75 kilograms. The applicant in that case ran an importing and exporting business and agreed to assist a friend, his co-offender, in the importation. He was to receive $25,000 for that assistance. He was involved in a number of material respects in organising and effecting the importation. He was described as a key figure by the sentencing judge and the role played by him was vital to the successful importation. Apart from the age of the applicant and the specific evidence as to the benefit which he was to derive from the importation, the facts bear some resemblance to the present case.

156 This Court intervened upon the basis that the discount that had been allowed for overall assistance was inadequate in all the circumstances of the case and resulted in an excessive sentence. It was held that the appropriate discount to reflect the plea and past and future assistance was 45%. Accordingly, the applicant was re-sentenced to imprisonment for 11 years and six months with a non-parole period of seven years and four months.

157 The case, however, is instructive on the sentencing starting point of approximately 32 years as against the starting point in the present case of 20 years.

158 In El Hani (supra), which is referred to in paragraphs [61] to [66], the applicant was a co-offender of the applicant in Shepherd (supra). It is to be noted that the role played by the applicant El Hani would seem to rank at a higher level in the context of the importation involved in that case than the respondent in the present case. The former had been involved in travelling extensively overseas in relation to the planned operation and, as noted earlier, was described as “senior” in the operation, having direct contact with the principal overseas as a close associate. The evidence was given by the relevant officer to the effect that “… I believe that he was giving advice to the senior people over here as to how to handle the situation and I believe that he was being sent to Australia to oversee the problem and to try to solve the problem”.

159 The officer who gave that evidence stated that the applicant, he believed, had a financial interest in the shipment. Whilst he was not a principal, he, as earlier noted, was found to have had a “managerial role”, so far as the importation was concerned.

160 The circumstances in relation to both Shepherd and El Hani are sufficiently close to the present case to provide some guidance or check upon the sentence imposed upon the respondent. In Shepherd, the sentencing starting point, as noted above, and before the application of any discounts, was 32 years, whilst in El Hani, the sentencing starting point chosen was 32 years. Those two starting sentences provide a marked contrast to the sentencing starting point of 20 years in the present case.

161 That said, it is necessary to bear in mind that the relevant circumstances of those cases with particular regard given to the activities and the circumstances of the importations in contrast to the age and other circumstances of the respondent in the present appeal. In my opinion, a lower starting sentence is appropriate in this case than those chosen in Shepherd and El Hani.

162 In that respect, I am of the opinion that the starting sentence in the present case should have been 25 years and not 20 years. There, of course, are no particular discounts for a plea (the respondent having proceeded to trial) or for other matters than the general subjective matters to which I have referred. The starting point of 25 years takes into account the subjective factors including the respondent’s admissions to which reference has been made in paragraphs [90] and [92].

163 I consider that a non-parole period of approximately 55% of the term of imprisonment referred to below should be set, having regard to the respondent’s age, rehabilitation prospects and the principles that are to be applied on a Crown appeal.

164 On that basis, the sentence imposed of 25 years imprisonment with a non-parole period of 10 years and six months is, in my opinion, inadequate. An appropriate sentence would require a sentence of 25 years imprisonment with a non-parole period of 13 years.

165 I accordingly propose the following orders:-

(a) The appeal is allowed.

(b) The sentence imposed on the respondent is quashed. In lieu of the sentence imposed by the District Court, the respondent is sentenced to a term of imprisonment for 25 years to commence on 8 February 2006 and to expire on 7 February 2031.

(c) Specify a non-parole period of 13 years to commence on 8 February 2006 and to expire on 7 February 2019.

(d) The earliest date upon which the respondent will be eligible for release on parole is 7 February 2019.

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Citations

R v To [2007] NSWCCA 200

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CITATION:	REGINA v TO Si Thanh [2007] NSWCCA 200
HEARING DATE(S):	5 April 2007
JUDGMENT DATE:	5 July 2007
JUDGMENT OF:	Handley AJA at 1; Hulme J at 9; Hall J at 60
DECISION:	1. Allow the Crown appeal; 2 Quash the sentence imposed on the Respondent on 2 February 2007; 3. Sentence the Respondent to imprisonment for a term of 25 years, including a non-parole period of 15 years; 4. Direct the legal advisers for the Respondent to provide to the Respondent an explanation of the above orders in accordance with the requirements of s16F of the Crimes Act (C’th).
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Customs Act 1901 (Cth) Customs Act Amendment Act 2004 (Cth) Crimes Act 1914 (Cth) Drug Misuse & Trafficking Act 1985 (NSW)
CASES CITED:	Everett v The Queen (1994) 181 CLR 295 R v Wall [2002] NSWCCA 42 R v MD, BM, MA, JT [2005] NSWCCA 342 R v Peel (1971) 1 NSWLR 247 R v Kevenaar (2004) 148 A Crim R 155 R v Kaldor [2004] NSWCCA 425 R v Dang [2005] NSWCCA 430 Wong v The Queen (2001) 207 CLR 584 R v Nguyen (2005) 157 A Crim R 80 R v Stanbouli (2003) 141 A Crim R 531 R v Nai Poon (2003) 56 NSWLR 204 R v El Hani [2004] NSWCCA 162 R v Moore [2004] NSWCCA 162 R v Sukkar [2005] NSWCCA 54 R v Shepherd (2003) 142 A Crim R 101
PARTIES:	Regina Si Thanh TO
FILE NUMBER(S):	CCA 2007/459
COUNSEL:	Crown: T Game SC Respondent: J Hickleton
SOLICITORS:	Crown: CDPP Respondent: George Sten & Co
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0605
LOWER COURT JUDICIAL OFFICER:	Woods DCJ
LOWER COURT DATE OF DECISION:	2 February 2007