R v Wright

[2003] WASCA 56

R -v- WRIGHT [2003] WASCA 56

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 56
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:158/2002	Heard:	17 FEBRUARY 2003
Coram:	STEYTLER J MILLER J MCKECHNIE J	Delivered:	25/03/03
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence of 9 years' imprisonment with minimum term of 4-1/2 years substituted
Category:	B
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Parties:	THE QUEEN MARK ROSS WRIGHT
Catchwords:	Criminal law and procedure Sentencing Crown appeal Possession of prohibited imports (amphetamine) reasonably suspected of having been imported into Australia Very substantial quantity 8 kg pure amphetamine Appellant minding the drugs for others In receipt of money for each week that he did so Plea of guilty Measure of cooperation Whether 7 years' imprisonment inadequate
Legislation:	Customs Act 1901 (Cth), s 233B(1)(ca)
Case References:	Cameron v The Queen (2002) 187 ALR 65 Dinsdale v The Queen (2000) 202 CLR 321 Grimwood v The Queen [2002] WASCA 135 Gronow v Gronow (1979) 144 CLR 513 Heryadi v The Queen (1998) 19 WAR 383 Lowndes v The Queen (1999) 195 CLR 665 R v Bellissimo (1996) 84 A Crim R 465 R v Clarke (1996) 2 VR 520 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Suarez-Mejia [2002] WASCA 187 R v W (2002) 129 A Crim R 400 Radebe v The Queen (2001) 162 FLR 313 Wong v R (2001) 207 CLR 584 Barany (2000) 114 A Crim R 426 Darwell (1997) 94 A Crim R 35 DPP (Cth) v El Karhani (1990) 97 ALR 373 Duffy (1996) 85 A Crim R 456 Gallagher v R (1991) 23 NSWLR 220 Guiu (2002) 129 A Crim R 387 Iskandar (2001) 126 A Crim R 546 La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 Little v The Queen [2001] WASCA 87 R v Boxtel (1994) 2 VR 98 R v Cartwright (1989) 17 NSWLR 243 R v Dinic (1997) 149 ALR 488 R v Tait (1979) 24 ALR 473 The Queen v Randall, unreported; SCt of WA; Library No 940394; 2 August 1994

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- WRIGHT [2003] WASCA 56 CORAM : STEYTLER J

MILLER J
MCKECHNIE J

HEARD : 17 FEBRUARY 2003 DELIVERED : 25 MARCH 2003 FILE NO/S : CCA 158 of 2002 BETWEEN : THE QUEEN

Appellant

AND

MARK ROSS WRIGHT
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Crown appeal - Possession of prohibited imports (amphetamine) reasonably suspected of having been imported into Australia - Very substantial quantity - 8 kg pure amphetamine - Appellant minding the drugs for others - In receipt of money for each week that he did so - Plea of guilty - Measure of cooperation - Whether 7 years' imprisonment inadequate

Legislation:

Customs Act 1901 (Cth), s 233B(1)(ca)

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Result:

Appeal allowed

Sentence of 9 years' imprisonment with minimum term of 4-1/2 years substituted

Category: B

Representation:

Counsel:

Appellant : Ms R V C Fogliani
Respondent : Mr R W Cannon

Solicitors:

Appellant : Commonwealth Director of Public Prosecutions
Respondent : Cannon & Co

Case(s) referred to in judgment(s):

Cameron v The Queen (2002) 187 ALR 65
Dinsdale v The Queen (2000) 202 CLR 321
Grimwood v The Queen [2002] WASCA 135
Gronow v Gronow (1979) 144 CLR 513
Heryadi v The Queen (1998) 19 WAR 383
Lowndes v The Queen (1999) 195 CLR 665
R v Bellissimo (1996) 84 A Crim R 465
R v Clarke (1996) 2 VR 520
R v Olbrich (1999) 199 CLR 270
R v Suarez-Mejia [2002] WASCA 187
R v W (2002) 129 A Crim R 400
Radebe v The Queen (2001) 162 FLR 313
Wong v R (2001) 207 CLR 584

Case(s) also cited:

Barany (2000) 114 A Crim R 426


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Darwell (1997) 94 A Crim R 35
DPP (Cth) v El Karhani (1990) 97 ALR 373
Duffy (1996) 85 A Crim R 456
Gallagher v R (1991) 23 NSWLR 220
Guiu (2002) 129 A Crim R 387
Iskandar (2001) 126 A Crim R 546
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997
Little v The Queen [2001] WASCA 87
R v Boxtel (1994) 2 VR 98
R v Cartwright (1989) 17 NSWLR 243
R v Dinic (1997) 149 ALR 488
R v Tait (1979) 24 ALR 473
The Queen v Randall, unreported; SCt of WA; Library No 940394; 2 August 1994

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1 STEYTLER J: I have had the considerable advantage of reading the reasons for decision of each of Miller J and McKechnie J. The facts and issues sufficiently appear from those judgments and I consequently need not restate them, except insofar as is necessary to explain the conclusion at which I have arrived.

2 The respondent was convicted, on his plea of guilty, on a charge that, in contravention of s 233B(1)(ca) of the Customs Act 1901, he had in his possession, without reasonable excuse, prohibited imports in the form of a quantity of amphetamine of not less than the trafficable amount, which was reasonably suspected of having been imported into Australia in contravention of the Act. That offence carries a maximum penalty of 25 years' imprisonment or a fine of $500,000, or both. The respondent was sentenced to a period of 7 years' imprisonment with a non-parole period of 3 and a half years, dating from 1 July 2002.

3 In its appeal, the Crown contends that the sentence was manifestly inadequate in all of the circumstances of the case. That ground is particularised by contentions that the sentencing Judge placed too much weight on the respondent's plea of guilty, co-operation and previous good character and that he gave insufficient weight to the respondent's role in the offence and to the quantity of the drug.

4 Before considering that ground, I should restate two propositions which are fundamental to an appeal of this kind.

5 The first is that, as was pointed out by Charles JA in R v Clarke (1996) 2 VR 520 at 522, an appeal by the Crown should be brought only in a rare and exceptional case to establish some point of principle. His Honour suggested, as appropriate occasions for the bringing of an appeal of that kind:

"(a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle … ; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons … ; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the

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public conscience … ; (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing …".

6 The second proposition is that the appellate court must not lose sight of the discretionary nature of the sentencing process. An appellate court cannot substitute its own opinion for that of the sentencing Judge merely because it considers the sentence inadequate or excessive: R v Clarke, above, at 522 and Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672. It is, in this respect, important to bear in mind what was said by Aickin J in Gronow v Gronow (1979) 144 CLR 513 at 537, as follows:

"Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J said in Lovell v Lovell (1950) 81 CLR 533:

'The proposition that the appeal court will consider whether "no sufficient weight" has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.'

It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result."

7 (See also the judgments of Stephen J and Mason and Wilson JJ in that case, respectively at pages 519 and 525 - 526).

8 In considering what sentence should be imposed, the trial Judge, in this case, took into account each of the matters particularised in support of the ground of appeal. He expressly took into account the fact that the respondent had entered a plea of guilty at the first opportunity and that his

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conduct in that respect gave rise to a very considerable saving to the community. He said that, at age 32, the respondent had no relevant prior criminal history and that he took this into account. He also said that he had read the letter provided to him by the Commonwealth as regards the extent, but also the limits, of the co-operation which the respondent had provided. He referred expressly to the maximum penalty provided for by the legislature and said that this underlined the seriousness with which the Commonwealth and the community regarded offences of that kind.

9 His Honour also took account of the role of the respondent in the commission of the offence. That, he said, was one of guarding or minding the amphetamine for other people. He also said that the respondent's role involved him travelling from Queensland to Western Australia, being involved in various discussions, having the drug in his possession for a period of five weeks and being paid "something approaching or about $25,000 for that 5 weeks' work".

10 Next, the sentencing Judge took into account the quantity of amphetamine found in the respondent's possession, being an amount in excess of 18 kilograms of an average purity of somewhere between 45 and 50 per cent. He remarked, in this last respect, that he had been told by counsel for the Commonwealth that it was believed to have been the largest seizure of amphetamine made in Western Australia.

11 Finally, while the sentencing Judge did not expressly refer to the need for deterrence, it is obvious, from his remarks taken as a whole, that he had the need for general and personal deterrence in mind.

12 In those circumstances it follows from the application of the principles which apply to appeals of this kind that, given the sole ground of appeal, the question for this Court is that of whether the sentence imposed by the sentencing Judge was so manifestly inadequate as to reveal that his discretion has been wrongfully exercised.

13 In my respectful opinion, that question should be answered in the affirmative.

14 This was a bad case. It involved a very substantial quantity of a dangerous drug (cfR v Bellissimo (1996) 84 A Crim R 465 at 471, per Anderson J). It must be accepted that weight is not generally the chief factor to be taken into account in fixing a sentence, for reasons expressed in Wong v R (2001) 207 CLR 584 at [67] and following. However, it is a significant factor in a case such as this, where the respondent knew that he had a very substantial quantity of the drug in his possession. Moreover, as

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Miller J has pointed out, the respondent, while merely a minder of the drugs, nonetheless played an important part in an ongoing operation which stretched over more than five weeks.

15 This was no "spur of the moment" offence. The respondent was involved with discussions, at the Gold Coast in Queensland, with the two British nationals who appear to have played a major role in the commission of the offence. He knew what it was that he was to do and he had plenty of time to think about it. He departed for Perth in the first week of June 2002, where he collected the bag from his contacts and then kept it until his arrest on 1 July 2002. While the bag was padlocked, the respondent kept the key. The respondent changed hotels on a number of occasions and had various communications with others involved in the offence. On one occasion the bag was opened in order to check its contents.

16 The seriousness of this overall course of conduct is mitigated by the respondent's early plea of guilty and, importantly, by such co-operation as he provided to the police. However, as Miller J has pointed out, the plea of guilty, while demonstrating elements of remorse, acceptance of responsibility and facilitation of the course of justice, must also be seen against a background in which the respondent had been caught red-handed and was facing an inevitable conviction.

17 As to the respondent's co-operation, while it must be accepted that the respondent is entitled to credit for the genuine assistance which was provided by him (which had the potential to lead to further arrests, albeit that did not happen), it must also be accepted that his co-operation was considerably more limited than it might have been. I respectfully adopt all that Miller J has said in this last respect.

18 It seems to me, in the end, with due respect to the sentencing Judge, that, even taking into account the respondent's plea of guilty, his co-operation with the police and his personal antecedents, the sentence imposed upon the respondent falls far short of reflecting the seriousness of the offence and of recognising the needs of general and personal deterrence and was, for those reasons, manifestly inadequate.

19 I should add that I agree with what has been said by Miller J in respect of the decision in R v W (2002) 129 A Crim R 400. That case, while of assistance, is necessarily limited in the assistance which it can provide (as is true of various other cases to which we were referred, in which sentences of imprisonment were imposed which were substantially

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more severe than that imposed in this case, or in R v W), given the different factual circumstances.

20 I would consequently allow the appeal and, giving recognition, as courts customarily do, to what is somewhat inaccurately described as the "element of double jeopardy" (see, for example, R v Clarke, above, at 522), set aside the sentence imposed upon the respondent and sentence him, in lieu, to a period of 9 years' imprisonment with a non-parole period of 4 and a half years. Nothing less would, in my respectful opinion, amount to an adequate standard of punishment for this crime, given all of its circumstances. The sentence should date from 1 July 2002.

21 MILLER J: This is a Crown appeal against sentence arising out of a sentence of 7 years' imprisonment, (with a non-parole period of 3-1/2 years), imposed upon the respondent by Jackson DCJ in the District Court at Perth on 16 August 2002, for the offence of possession of prohibited imports, namely amphetamine, being not less than the trafficable quantity, reasonably suspected of having been imported into Australia contrary to s 233B(1)(ca) of the Customs Act 1901.

22 The respondent was charged that on 2 July 2002 at Perth he, without reasonable excuse, had in his possession such prohibited imports in contravention of s 233B(1)(ca) of the Customs Act. To this charge he pleaded guilty before Jackson DCJ on 16 August 2002, the plea being entered on the fast-track system.

23 The facts put before the learned trial Judge revealed that the respondent was a Queensland resident who had been approached in early May 2002 by two British nationals, who had recently arrived in Australia and who departed in the first week of June 2002. These two persons met with the respondent on the Gold Coast in Queensland and offered him $5000 a week to look after a bag in Perth until somebody picked it up. The respondent was clearly told that the bag would contain drugs. The proposition was accepted by him and he travelled to Perth and collected the bag from his two contacts who had also made their way to Perth. He stayed at a hotel in Scarborough with the bag and he was told by those who had recruited him that he would be contacted by somebody who would arrange to collect the bag. The bag itself was padlocked and the key kept by the respondent.

24 After about a week the respondent was telephoned by one of his contacts and told that another person would make contact with him and arrange a meeting so that the drugs could be passed on. The respondent then changed hotels and at the second hotel, received telephone calls

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advising him to wait until the handover of the bag was arranged. A meeting was later arranged in the city where the respondent was paid $2400 in cash for his services in looking after the bag. The respondent then moved to a further hotel and again there were communications with him with a view to collection of the bag. Somebody actually arrived at the hotel room where the respondent was staying and opened the bag to check its contents.

25 There followed further communications with the respondent in relation to collection of the bag but no firm arrangements were made for collection and ultimately, on 1 July 2002, the respondent was arrested by the Australian Federal Police and a search warrant was executed on the room where he was staying. The respondent contended at first that he was holding the bag for another person and had no key to open the padlock, but the bag was forced open and inside were found 19 individual cardboard cylinders which were each vacuum sealed with plastic. These cylinders when examined were found to contain white coloured powder and a presumptive test of the powder gave a positive reading for amphetamine. The gross weight of the powder was 18.25 kg.

26 The powder was later analysed and a certificate of analysis revealed that the powder contained between 41.4 per cent and 50.4 per cent pure amphetamine. The total weight of pure amphetamine in the bag was 8.332 kg.

27 The respondent was found to have $19,040 in his possession and he was duly arrested. He had then been in Perth between 28 May and 1 July and during the whole of that time, had been in possession of the bag of amphetamine.

28 The learned trial Judge summarised the facts of the case, pointing out that the quality of amphetamine contained within the bag held by the respondent was very substantial and indeed was contended by the prosecution to have been the largest seizure of amphetamine in Western Australia at that time. His Honour made reference to the maximum penalty of 25 years' imprisonment or a fine of $500,000 or both, pointing out the seriousness of the offence committed by the respondent. His Honour described the respondent as a person who had been "guarding or minding this material for other people" and acknowledged that it was not suggested that the respondent had brought it into the country or that he was intending to be a distributor. However, his Honour was concerned at the fact that the respondent had been minding or guarding the drugs for a period of approximately five weeks and had been paid something approaching $25,000 for so doing.

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29 The learned trial Judge turned to matters personal to the respondent, noting that he was 32 years of age, a single man, with no relevant prior criminal history. His Honour expressed concern that the respondent had committed the offence for what was clearly greed and greed alone.

30 The respondent's plea of guilty was acknowledged by the trial Judge, as was cooperation he had provided to the authorities. In relation to these two factors his Honour said:

"I have to take into account that you have entered a plea of guilty at the first opportunity and have maintained it and are here on what, in this state, is known as the fast-track system and that is a public acknowledgement of the part that you have played and also a very considerable saving to the community.

I have read a letter which has been provided to me by the Commonwealth from the authorities about the extent but also the limits of the cooperation that you have given in respect of this matter."

31 After acknowledging that it would be inappropriate to sentence by reference to the "two-stage sentence approach", the learned trial Judge imposed the sentence of 7 years' imprisonment with a non-parole period of 3-1/2 years, dating from 1 July 2002.

32 The appellant contends that the sentence imposed was manifestly inadequate in the circumstances of the case, particularising the grounds as follows:

"a. The learned sentencing judge placed too much weight on the Respondent's plea of guilty;

b. The learned sentencing judge placed too much weight on the Respondent's co-operation and previous good character;

c. The learned sentencing judge gave insufficient weight to the seriousness of the offence;

d. The learned sentencing judge gave insufficient weight to the Respondent's role in the offence, in particular the period of his involvement in the offence, remuneration he received and that his conduct allowed principals to leave the jurisdiction;

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e. The learned sentencing judge gave insufficient weight to the quantity of the drug;

f. The learned sentencing judge gave insufficient weight to the need for deterrence, both general and personal."

33 At the hearing of the appeal, counsel for the appellant conceded that the question was whether in the circumstances of this case the sentencing discretion had miscarried because it could be demonstrated that the final result was manifestly inadequate. Although submissions were made that the learned trial Judge had placed too much weight on the respondent's cooperation, previous good character and plea of guilty, this is not a case in which it is apparent from his Honour's sentencing remarks exactly what discounts were allowed for any of those factors and nor was it either necessary or desirable for his Honour to have sought to sentence the respondent in that way: Wong v R (2001) 207 CLR 584; (2001) 76 ALJR 79.

34 In any event, this Court is not concerned to calculate the way in which the learned trial Judge arrived at the sentence imposed upon the respondent and to determine whether the process of calculation was correct. This was made clear by Murray J in Grimwood v The Queen [2002] WASCA 135 (with whom Steytler and Miller JJ agreed) in the following passages at [17] - [19]:

"17. … the process of taking a proportion expressed as a percentage of a notional starting point, even one articulated by the sentencing Judge, and endeavouring to demonstrate that the sentence imposed is manifestly excessive having regard to the percentage figure, is an illusory process because the so-called "starting point" is not the sentence, the adequacy or proportionality of which the appellate court is required to measure so that the appeal will succeed if it can be demonstrated that the exercise of sentencing discretion has miscarried because the sentence finally imposed is manifestly excessive.

18. … in my opinion, although this Court has observed from time to time, including in Miles at 521, that the substantial discount required to be given by the law (Sentencing Act 1995 (WA) s 8(2)) has in fact been able to be seen to be in the order of from 20 to 25 per cent up to 30 to 35 per cent, depending upon the circumstances, it

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has never been suggested, and in my respectful opinion rightly so, that it is an appropriate way for an appellate court to consider the adequacy of a sentence, to allocate periods of time or percentage points applied to a starting point for the purpose of deciding whether the sentence imposed is manifestly excessive or inadequate: see also Cameron v The Queen [2002] WASCA 81 per Miller J, with whom Murray and Steytler JJ agreed, at pars [16] – [19].

19 That is because, to put it shortly, as did the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 624 [46], 'Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.' The attempt to measure the size of the discount diverts the appellate court from the essential task of determining whether the sentencing discretion has miscarried because the Judge has made some error of principle or because, even though error is not particularly identifiable, it is demonstrated because the final result is manifestly excessive or inadequate. In my opinion, ground 1 is misconceived."

35 I respectfully adopt the observations of Murray J and consider them entirely applicable to this case. The result is that the question for determination by the Court is whether, in all the circumstances of the case, the final sentence arrived at by the learned trial Judge was manifestly inadequate. There was no suggestion that any error of principle was made by his Honour in the sentencing process.

36 The key considerations taken into account by the learned trial Judge in sentencing the respondent were his early plea of guilty and his cooperation. The plea of guilty was certainly entered on the fast-track system and as such, demonstrated elements of remorse, acceptance of responsibility and facilitation of the course of justice: Cameron v The Queen (2002) 187 ALR 65. On the other hand, the respondent was caught red-handed with the drugs he was minding and it might well be thought that he had no alternative other than to plead guilty. This was, of course, a relevant factor to be weighed in the balance when considering the credit to which the respondent was entitled by reason of his early plea.

37 The cooperation spoken of by the learned trial Judge was the subject of a letter from the Australian Federal Police to his Honour. It was

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described in his Honour's sentencing comments as revealing "the extent but also the limits of the cooperation that you have given in respect of this matter" and, in my view, the extent of cooperation given by the respondent was indeed limited. It consisted of acknowledgement by the respondent on his part of his involvement in the possession of the amphetamine; the provision of information that assisted investigators to identify two men suspected of having imported the drugs; and participation in the controlled delivery operation which was ultimately unsuccessful, although not by reason of any failing on the respondent's part. The letter did, however, point out that the respondent had been afforded the opportunity to provide a statement and an undertaking to give evidence against co-offenders but had declined to do so. Reference to the record of interview in which the respondent participated with investigating officers of the Australian Federal Police reveals the limits of cooperation to which the learned sentencing Judge referred. When asked the names of the two contacts in Queensland the respondent gave their Christian names only and stated that he was unable to identify the surnames. The letter handed to his Honour also indicates that because of the refusal of the respondent to give any evidence in relation to those persons, it is unlikely that extradition proceedings will be commenced to have them returned to Western Australia.

38 Counsel for the respondent argued that the sentence imposed by the learned trial Judge was not so plainly wrong that it could be said to fall outside a sound discretionary range. Reliance was placed upon the early plea of guilty of the respondent and his cooperation with authorities and it was contended that the respondent gave as much information as he was able to do.

39 Reliance was also placed upon the decision in R v W (2002) 129 A Crim R 400, a case of being knowingly concerned in the importation of methylamphetamine, and where the offender had played a substantial role but also provided substantial assistance to authorities. The facts revealed that 82 boxes of methylamphetamine containing a pure weight of 66.332 kg of the drug had been brought into Australia from China via Singapore in two shipping containers. The offender's task in the importation was to cut through the containers using tools and equipment purchased for that purpose, remove the drugs, reweld the damaged metal and disguise his work. He was then to deliver the drugs to several locations in Sydney. For his plea of guilty and substantial assistance to authorities, the trial Judge had discounted 25 per cent in each case, leading to a sentence of 7 years' imprisonment with a non-parole period of 5 years 3 months. On appeal the Court of Appeal of New South Wales

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considered the discount of 25 per cent for cooperation to be inadequate but the discount of 25 per cent for the early plea to be generous. The sentence was varied to a sentence of 7 years' imprisonment with a non-parole period of 4 years.

40 Although counsel for the respondent relied heavily upon this decision as an indication that a sentence of 7 years' imprisonment could not in the present case be said to be manifestly inadequate, it was in many ways a very different case. The cooperation with prosecuting authorities was described in the judgment as "extensive", including the making of a lengthy statement in which detailed information was given about the offender's involvement, his involvement with a co-offender and his participation in the importation. He also revealed the fact of an earlier importation where he had performed a similar task. The Court of Appeal rightly described the cooperation as extensive. Simpson J made reference to the principles which are at stake in discounting sentences for cooperation. Her Honour said at [25] and [27] - [28]:

"25 In my opinion, this case exemplifies the collision of two important sentencing principles. The first is that offenders who, at considerable risk and discomfort to themselves (and risk to their families) give valuable assistance to law enforcement authorities, are entitled to be rewarded by appropriate reductions in the sentences imposed in respect of their crimes. On occasions, these reductions may be so significant as to engender some disquiet, at least when the result of the application of the discount is exposed.

…

27 The second sentencing principle to which I referred is the principle (embodied in s 16A(1)) that a court must not impose a sentence that is unacceptably low having regard to the objective circumstances of the offence. In Raz, Hunt CJ at CL wrote:


'… a court granting a discount for assistance given to the authorities must ensure that the ultimate result achieved by that discount is not so far out of touch with the circumstances of the particular offence and the particular offender that - even understood in the light of the public interest that

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offenders should be encouraged by the giving of such discounts to supply information to the authorities in order to bring other offenders to justice - the sentence imposed nevertheless constitutes an affront to community standards. … There is a clear tension between the utilitarian consideration of encouraging offenders to give such assistance and the general need for the sentences which are imposed to act by way of public deterrence. …'

28 I have found the balance of these two important principles in the present case extremely difficult. There is no doubt that the applicant's assistance has been valuable and that he has put himself and, no doubt, his family, at significant risk. It has made the circumstances of his incarceration more onerous. Against that must be set the objective circumstances of the crime - the quantity of the drug (66.332 kilograms) and his level of participation."

41 The same sentencing principles need to be balanced in this case. In addition, the extent of cooperation given by the respondent has to be assessed. No two cases are the same, and the fact that in R v W a sentence of 7 years' imprisonment may have been imposed for a more substantial quantity of drugs, cannot be determinative in any way. What is required in the present case is to balance the seriousness of the offence committed by the respondent against the early plea of guilty and the limited cooperation given by him to authorities. Having done so, it is then necessary to consider whether the sentence imposed can be said to be manifestly inadequate as contended for on behalf of the appellant.

42 The appeal is, of course, a Crown appeal to which established principles apply. They have been stated many times, perhaps most recently in this Court by Parker J (with whom Murray and Miller JJ agreed) in R v Suarez-Mejia [2002] WASCA 187 at [64] - [66]:

"64 There are clearly established principles which apply to Crown appeals of this nature. A convenient statement of them may be found in the decision of Charles JA in R v Clarke [1996] 2 VR 520 at 522 – 523. In particular, it is established that an appeal by the Crown should only be brought in a rare and exceptional case and to establish a point of principle. Occasions may arise for the bringing

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of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle, (b) where it is necessary to lay down principles for the governance and guidance of the exercise of the sentencing discretion, (c) to establish and maintain adequate standards of punishment, (d) to correct idiosyncratic views of individual judges, (e) to correct a sentence which is so disproportionate as to shock the public conscience, and (f) to ensure uniformity. A Court of Criminal Appeal is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive; it may only interfere if there is manifest inadequacy or the sentencing judge fell into material error of law or fact.

65 The proposition in the last sentence in the preceding paragraph was underlined by the High Court in Lowndes v The Queen (1999) 195 CLR 665 at 671 – 672 where it was said that:

' … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion … The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

66 It has also been observed in a number of decisions that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time. Because this is an unfortunate effect of a Crown appeal against sentence it is normal for the Crown to be required to demonstrate clearly that the sentence is so manifestly inadequate as necessarily to demonstrate error. Even where such error is demonstrated it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences."

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43 Taking these considerations into account, I am nevertheless of the view that in this case the learned trial Judge imposed a sentence which was manifestly inadequate. I consider that the learned trial Judge arrived at an end result which is demonstrably too low. The sentence failed, in my view, to reflect sufficiently the need for general and personal deterrence in relation to drug offences of the type committed by the respondent. I respectfully adopt what was said by Anderson J in R v Bellissimo (1996) 84 A Crim R 465 at 471 where his Honour said:

"The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused wide-spread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent."

44 Whilst acknowledging that the respondent had in his favour his early plea of guilty and a measure of cooperation with authorities, the ultimate sentence imposed upon him was, in my view, manifestly inadequate. It failed to take sufficient account of the factors referred to by Anderson J in R v Bellissimo. In my view, the appeal should be allowed and the sentence imposed upon the respondent increased to one of 9 years' imprisonment with a non-parole period of 4-1/2 years.

45 MCKECHNIE J: The essence of the appeal is that the actual sentence is so inadequate as to itself manifest error. The particulars of the grounds of appeal are hard to make good individually when the Judge mentioned all relevant factors and imposed a sentence which he described as "the intuitive synthesis".

46 The reason why there is a fetter on a Court of Appeal's ability to review the sentencing discretion of a trial Judge is not hard to see. It is explained by the High Court in Cameron v The Queen (2002) 187 ALR 65, Dinsdalev The Queen (2000) 202 CLR 321, Lowndes v The Queen (1999) 195 CLR 665. Passing sentence is an exercise in discretion. A Judge is required to balance a range of factors before arriving at a single result. Where the Judge is a District Court Judge with many years of sentencing experience, that discretion should be respected because of the wisdom acquired in evaluating like and unlike cases to determine the

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appropriate sentence. This Court should only intervene in clear, that is manifest, cases. A sentence may often be regarded by some as inadequate or excessive. Only when the sentence manifests error as an affront to justice should this Court pass the sentence which ought to have been passed. The special rules regarding Crown appeals operate in addition to the requirement for manifest inadequacy.

The criminality of the conduct

47 It is necessary to focus on the criminality of the respondent's actions. The quantity of drugs over which he stood guard is clearly a factor but should not be allowed to obscure his actual role: Wong v R (2001) 207 CLR 584 at [68] - [69]; R v Olbrich (1999) 199 CLR 270 at [19]. Noting that it did not seem to be contested, the trial Judge found the respondent was guarding or minding in excess of 18 kg of drugs for other persons. It was not suggested that the respondent had brought the drugs into the country or that he was going to be a distributor other than that he would hand the drugs over in its same form to another person. The criminality of the offending is not significantly increased or decreased by the actual quantity of drugs being guarded. The criminality is in undertaking a role guarding a prohibited import until it can be on-sold.It is necessary that the respondent receive an appropriate sentence for this activity which he undertook for gain.

Matters in mitigation

48 There are three possible matters which would have been taken into account in mitigation of the offence.

The plea of guilty

49 The plea was made on the fast-track system at an early stage of proceedings. This gives rise to a significant reduction in sentence for reasons of policy notwithstanding the fact that the offender was caught red-handed: Radebe v The Queen (2001) 162 FLR 313.

Cooperation

50 Although there was some cooperation, the trial Judge would not have been obliged to mitigate the sentence significantly.

51 It is in the public interest to secure the cooperation of offenders and that cooperation must sometimes be secured by a reduction in an

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otherwise appropriate sentence. However, the currency of cooperation should not be devalued by rewarding apparent attempts at cooperation. Apparent attempts may demonstrate remorse but little more. In order to justify a substantial reduction in sentence, there must be proven and useful cooperation. A reduction, but not a substantial reduction, was justified for cooperation.

Personal antecedents

52 The respondent is aged 32 and has no prior criminal history. He committed the crime for greed. For crimes of this nature, and seriousness, a prior good character has comparatively little mitigatory effect: Heryadi v The Queen (1998) 19 WAR 383.

The effect of R vW(2002) 129 A Crim R 400

53 The respondent relied upon R v W to support the sentence in this case.

54 The applicant in R v W would have received a term of imprisonment for 14 years but for a 50 per cent reduction by reason of a timely plea of guilty and cooperation. The Court of Appeal thought that the discount of 25 per cent for the early plea of guilty was generous and the discount of 25 per cent for cooperation was inadequate. The amount of drugs involved was 66.332 kg of methylamphetamine, contained in 82 boxes, with an estimated street value of $24 million. W's task was to cut through the containers, remove the drugs, re-weld the damaged metal, and disguise his work; and then deliver the drugs to several locations in Sydney. Although the cooperation in R v W was highly significant, the Court of Appeal (per Simpson J) concluded that any sentence less than the head sentence imposed would "constitute an affront to community standards".

55 It is desirable that there be national consistency in sentences for federal offences although it is difficult to compare precisely the circumstances of individual cases. In the case of both the respondent and W, their role was limited but vital. I am inclined to think that W's role was somewhat more extensive than that of the respondent. The quantity of drugs in R v W was significantly more than in the present case and so correspondingly was the degree of cooperation.

56 Notwithstanding this, I consider that R v W does have a limited use as a guide when determining whether the overall sentence of 7 years

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imposed on the respondent is manifestly inadequate. R v W suggests that the sentence is within the range of sentences commonly imposed.

Conclusion

57 A judgment as to whether a sentence manifests error through inadequacy is in part impressionistic because no error of principle is otherwise demonstrated.

58 When consideration is given to the actual criminality of the respondent, the plea of guilty, limited cooperation, and a degree of guidance from R v W, I am unable to say that this sentence is so manifestly inadequate as to reveal error. I would dismiss the appeal.