Sukkar v The Queen (No. 2)

[2008] WASCA 2

DAVID SUKKAR -v- THE QUEEN [No 2] [2008] WASCA 2

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 2
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:25/2007	Heard:	16 NOVEMBER 2007
Coram:	STEYTLER P McLURE JA BUSS JA	Delivered:	10/01/08
No of pages:	23	Judgment Part:	1 of 1
Result:	Application to review dismissed
Category:	D
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Parties:	DAVID SUKKAR THE QUEEN
Catchwords:	Criminal law Review of single judge's refusal to grant leave to appeal against sentence Possession of prohibited import Equivalent of 77 kg of pure cocaine Appellant was instrumental to importation but not primary organiser Need to consider each case individually Sentencing factors include nature of drug, weight of drug and principles of deterrence Matters personal to the appellant are of limited weight but not entirely irrelevant Appellant showed little remorse and entered late plea of guilty 21 years' imprisonment with non­parole period of 13 years Grounds of appeal have no reasonable prospect of success
Legislation:	Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 16G, s 19AB Customs Act 1901 (Cth), s 233B(1)(b) (repealed), s 233B(1)(c) (repealed), s 235(2)(c) (repealed)
Case References:	Bellissimo (1996) 84 A Crim R 465 Chan (1989) 38 A Crim R 337 Cheung (1997) 97 A Crim R 283 de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Kaye v The Queen [2004] WASCA 227 Keating v The State of Western Australia [2007] WASCA 98 Lawless v Turner [2007] WASCA 127 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v Heeng Ung [2000] NSWCCA 195 R v Lam [2005] VSC 98 R v Lee [2007] NSWCCA 234 R v Mo [2007] NSWCCA 61; (2007) 169 A Crim R 60 R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26 R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577 R v Teng [2005] VSC 33 R v To Si Thanh [2007] NSWCCA 200 R v Vo [2000] NSWCCA 440; (2000) 118 A Crim R 320 Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Sinclair (1990) 51 A Crim R 418 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Vagh v The State of Western Australia [2007] WASCA 17 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DAVID SUKKAR -v- THE QUEEN [No 2] [2008] WASCA 2 CORAM : STEYTLER P

McLURE JA
BUSS JA

HEARD : 16 NOVEMBER 2007 DELIVERED : 11 JANUARY 2008 FILE NO/S : CACR 25 of 2007 BETWEEN : DAVID SUKKAR

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : WHEELER JA

Citation : SUKKAR -v- THE QUEEN [2007] WASCA 166

File No : CACR 25 of 2007

Catchwords:

Criminal law - Review of single judge's refusal to grant leave to appeal against sentence - Possession of prohibited import - Equivalent of 77 kg of pure cocaine

(Page 2)

- Appellant was instrumental to importation but not primary organiser - Need to consider each case individually - Sentencing factors include nature of drug, weight of drug and principles of deterrence - Matters personal to the appellant are of limited weight but not entirely irrelevant - Appellant showed little remorse and entered late plea of guilty - 21 years' imprisonment with non­parole period of 13 years - Grounds of appeal have no reasonable prospect of success

Legislation:

Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 16G, s 19AB

Customs Act 1901 (Cth), s 233B(1)(b) (repealed), s 233B(1)(c) (repealed), s 235(2)(c) (repealed)

Result:

Application to review dismissed

Category: D

Representation:

Counsel:

Appellant : Mr D Grace QC & Ms L B Black
Respondent : Mr D W L Renton & Ms M E Cheshire

Solicitors:

Appellant : William O'Brien
Respondent : Commonwealth Director of Public Prosecutions

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

Bellissimo (1996) 84 A Crim R 465
Chan (1989) 38 A Crim R 337
Cheung (1997) 97 A Crim R 283
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Kaye v The Queen [2004] WASCA 227
Keating v The State of Western Australia [2007] WASCA 98

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Lawless v Turner [2007] WASCA 127
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Heeng Ung [2000] NSWCCA 195
R v Lam [2005] VSC 98
R v Lee [2007] NSWCCA 234
R v Mo [2007] NSWCCA 61; (2007) 169 A Crim R 60
R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26
R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577
R v Teng [2005] VSC 33
R v To Si Thanh [2007] NSWCCA 200
R v Vo [2000] NSWCCA 440; (2000) 118 A Crim R 320
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sinclair (1990) 51 A Crim R 418
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Vagh v The State of Western Australia [2007] WASCA 17
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584


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1 JUDGMENT OF THE COURT: By an application dated 17 August 2007, the appellant applied to review the decision of Wheeler JA, made 10 August 2007, refusing the appellant leave to appeal against sentence.

2 The appellant was convicted of one count of aiding the importation of a commercial quantity of prohibited goods, contrary to s 233B(1)(b) (repealed) of the Customs Act 1901 (Cth), and one count of attempting to possess a commercial quantity of a prohibited import, contrary to s 233B(1)(c) (repealed) of that Act. The goods in question were 100.6 kg of cocaine with an average purity of 77.8%.

3 Initially, the appellant pleaded not guilty. He was tried before a judge and jury, but the jury were unable to agree upon a verdict. On the second day of his retrial, he entered a plea of guilty, and was therefore convicted. On 15 February 2007, the trial judge, Jenkins J, sentenced him to 21 years' imprisonment on each count, with a non-parole period of 13 years. Her Honour ordered the sentences to be served concurrently, and backdated them to commence on 8 August 2004.

The sentencing remarks of Jenkins J

4 On 22 July 2004, the appellant's co-accused, Jose Melgar Sevilla, arrived in Sydney from South America. He came to Australia for the purpose of supervising the safe importation of the cocaine. The drug was imported on a vessel named the Marcos Dias, which was on a voyage to Albany. After a 'tip off' the Australian Federal Police commenced monitoring Mr Sevilla's conversations and movements. It became apparent to them that the appellant had some involvement in the enterprise.

5 Jenkins J described, in her sentencing remarks, the scheme for the drug importation, and the material facts and other circumstances of the offences which the appellant had committed. Her Honour said:

[O]n 24 July you rang Sevilla on a mobile phone that he had … purchased since his arrival in Sydney. You arranged to meet him in the city of Sydney. I do not know how you got his phone number. You subsequently met him and had lunch with him. It seems that at least from that time you knew what the purpose of Sevilla's visit to Australia was and you commenced aiding Sevilla and those he was working with or those you were working for in the importation of the cocaine.

On that day your assistance involved making telephone calls and accompanying Sevilla when he purchased a mobile phone. I accept that you were recruited by others to perform your role. However, there is no evidence before me that you had to be persuaded to take on this role.

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There is simply no evidence before me for me to conclude other than that you freely and voluntarily agreed to assist Sevilla in the importation of the drugs.

Late on 24 JulySevilla travelled to Perth and then on to Albany. You remained in Sydney. You spoke to Sevilla by phone. On 26 July you travelled to Perth. The following day you purchased two mobile phones which you subsequently provided to Sevilla. You used a fictitious name to register one of these phones. Sevilla, it seems in your presence, used a fictitious name to register the other.

You also were seen to look at used cars in two lots. This was in pursuit of a plan to purchase a car to transport the cocaine. Later that plan was abandoned. Later that day in a telephone call Sevilla told you not to bring anything, that is, bring anything to Albany, but to bring some money. Recorded telephone calls between yourself and Sevilla proved that you did these things, that is, purchased the phones and looked at the cars, in order to aid in the importation of the cocaine.

On the same day the Marcos Dias anchored off Albany. On 28 July you took a bus to Albany. You met Sevilla on that day. In a hired car he took you down to Albany harbour and pointed out a number of things to you. He also drove you around Frenchman Bay towards Quaranup Road. You stayed at the same hotel with Sevilla and accompanied him when he made telephone calls from public telephones.

A recorded conversation in the hotel room indicates that you were helping Sevilla to plan how and where the large amount of cocaine would be brought ashore and how it would be hidden once ashore. The seriousness of the criminal enterprise in which you were then involved must have been well known to you.

On 29 July you both booked out of the hotel and moved into a holiday unit. You used a false name to book into that unit. On the same day you both went to a boat hire company and in a false name you hired a dinghy which was to be used to off load the cocaine from the Marcos Dias. Between 29 July and 3 August you and Sevilla stayed in Albany, making plans to bring the cocaine ashore.

Together you boated around the harbour, looking for places to bring it ashore and you accompanied Sevilla when he made various phone calls to try and arrange the importation. However, the docking of the Marcos Dias was delayed longer than anticipated. Sevilla was concerned about his continued presence in Albany and that that presence would arouse suspicions.

On 3 August the two of you drove back to Perth. You were seen making telephone calls from public telephones around Perth. I should say that by this time Mr Sevilla had hired a motor vehicle to assist in the criminal enterprise. The following day you flew back to Sydney. Whilst in Sydney

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you maintained contact with Sevilla. He requested you to find four bags to store the cocaine in. You also made contact with another man, Simon Taouk, who accompanied you back to Western Australia on 6 August.

Meanwhile on 5 August the Marcos Dias docked in Albany and Sevilla made contact with a crew member from the vessel. He gave the crew member one of the mobile phones which you had purchased. This enabled Sevilla to keep in contact with the crew member when the crew member returned to the Marcos Dias. Sevilla arranged with the crew member to take delivery of the cocaine in the early hours of 7 August.

In a telephone call with you on 6 August Sevilla told you that you must come urgently and to come no later than the following afternoon. You, or someone on your behalf, booked two one-way air fares from Sydney to Perth on a flight which arrived in Perth at approximately 10.15 pm on 6 August. In the early hours of 7 August whilst you were still in Perth, Sevilla took possession of the cocaine.

This he did by bringing the dinghy alongside the Marcos Dias whilst a crew member lowered the cocaine to him. He then took the cocaine by the dinghy to a secluded beach and hid it in the adjacent scrub. Later that same morning he returned by car and moved the cocaine to another spot in the bush on Quaranup Road, a short distance away.

After Sevilla left it there the Australian Federal Police attended and recovered the cocaine. The cocaine was in the form of 100 blocks of compressed powder with a total weight of 100.6 kilograms. When tested, the powder had an average purity of 77.8%. Thus the total quantity of pure cocaine was about 77 kilograms. The police substituted wooden blocks for the cocaine and wrapped them up so that from the outside each block looked like the blocks that had been imported. They then returned the blocks and bags to the bush hiding spot.

On the same day you and Taouk travelled to Albany. On your arrival youmet Sevilla and he took you for a drive, presumably to point out to you the location of the cocaine. In the early hours of 8 August you and Sevilla drove to the bush area of Quaranup Road where the drugs were hidden. You and Sevilla got out of the vehicle. Taouk drove it away. You and Sevilla entered the bush. It seems that you held a torch whilst Sevilla uncovered and then inspected one or two of the blocks which you thought would be cocaine.

You both discovered that the blocks contained wood and you then left the bush area and were picked up in the rented car by Taouk. Sevilla drove you back into Albany. He made a phone call and was clearly agitated by the discovery of the wood. It was put on yourbehalf that the surveillance material shows that you were relatively unconcerned about the discovery of the substitution. I do not believe that I can draw that conclusion. All I can say is that there is no evidence before me that you were particularly concerned.

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It does seem to me illogical for you to be unconcerned. If you thought the police had made the substitution, you would presumably be concerned for what was going to happen to you. If you thought that someone else had made the substitution, I assume you would be concerned that whoever had recruited you would be upset by such a betrayal. Shortly thereafter the police arrested you. You have been in custody since 8 August.

Sevilla pleaded guilty to aiding the importation of a commercial quantity of cocaine and possessing a commercial quantity of cocaine. He was sentenced to life imprisonment with a non parole period of 21 years on each count. Taouk was charged but the charges were withdrawn. No crew member of the Marcos Dias was charged. No other person has been charged in connection with the importation of the cocaine.

The cocaine had an estimated street value of some $70 million. It remains the second-largest known importation of cocaine into Western Australia. It is necessary to consider your place in the hierarchy of drug traffickers. You are towards the bottom end of that scale, in the sense that you were neither the seller, the principal organiser nor the ultimate purchaser. It seems that you were working primarily on the instructions of Sevilla who was directing the day-to-day operations to ensure the ultimate successful importation.

Your counsel submits that your involvement was not crucial to the success of the operation. Whilst it is true that Sevilla managed to bring the drugs ashore by himself, he clearly wanted and got your assistance both before and after that to facilitate the importation and the subsequent possession or attempted possession of the cocaine in Australia.

The recorded conversations between you and Sevilla show that Sevilla did not speak very good English. Your abilities in that regard were no doubt of assistance to Sevilla as he tried not to arouse suspicion in Sydney, Perth and Albany. You also provided assistance by purchasing the mobile phone, making telephone calls, looking for items such as the car and bags to use to transport the cocaine, hiring the boat, booking into the holiday unit, and providing general assistance and support to Sevilla.

Further, whilst you have not made any disclosure about what plans there were for the future of this cocaine your counsel acknowledged that with Sevilla you would be one of two, maybe three people if I count Taouk, who would know where this exceptionally large amount of valuable cocaine was to be located. Sevilla was in Australia on a tourist visa that expired on or about 13 August. It is clear that he would not have wanted to bring attention to himself by overseeing that visa. Once he left Australia your role, as perhaps the only person in Australia to know of the whereabouts of the cocaine, would have been crucial. Consequently you were a vital link in the intended chain of distribution of the drug into Australia even if there is no evidence before me that you were going to take part in that distribution (ts 1427 - 1431).

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6 Jenkins J then turned to consider the appellant's personal circumstances. Her Honour said:

You were 23 at the time of the commission of the offences. You are single. Your mother lives in Sydney. Your father is deceased. You have three older brothers and two younger sisters. Your father died in 1986. You have had one serious relationship which was broken off by your girlfriend in early 2004 and this upset you greatly. I will say something more about that in due course.

You were born in Lebanon. Your family had previously lived in Australia but they had returned to Lebanon by the time of your birth. Your family returned to Australia in 1989. In the meantime you had experienced civil war in your country of birth as well as the death of your father. I have received one reference on your behalf from the father of your ex-girlfriend and he speaks highly of your assistance to him and your attitude whilst you were in a relationship with his daughter.

You found it very difficult to settle into life in Australia and in particular into school. According to the psychological report you attended eight schools, being asked to leave a number of them. Your behaviour at school was deemed unacceptable when you were as young as 10 or 11. Luckily for you, after you finally left school an older brother was able to provide you with employment in the building industry. You remained in this employment until your involvement in these offences.

You now say that you would like to improve your education whilst you are in custody and I hope that you do that. You started drinking alcohol at 14. You also commenced using cannabis and amphetamines in your teenage years. After the break-up of the relationship with your girlfriend your drug and alcohol abuse escalated. This resulted in you forming negative relationships with other drug users. Since your arrest you have been drug-free.

Whilst in school you were diagnosed with a conduct disorder. As I have said, I have received a psychological report which says that you have suffered from significant depression, anxiety and low self-esteem over the years. You have previously been assessed as having an intelligence quotient in the low average range. You suffered a head injury as a consequence of an assault with a baseball bat some years ago. You suffer migraine headaches as a consequence. You have also had physical injuries from a motorbike accident and a hand injury as a result of an industrial accident (ts 1431 - 1432).

7 Jenkins J noted that the appellant had previous convictions for traffic and minor drug offences (ts 1432). In 2001, he was convicted of assault, malicious damage and custody of a knife in a public place. The Crown conceded that the convictions in question were not relevant to the sentencing process. Her Honour also noted that the appellant's late plea of
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guilty, his abstention from drugs since his arrest, and his express plans to educate himself whilst in custody, demonstrated some prospect for the appellant's rehabilitation (ts 1432).

Grounds of appeal

8 The appellant relied on two grounds of appeal. First, each of the sentences was said to be manifestly excessive in all the circumstances of the offending and of the appellant. Secondly, it was said that Jenkins J erred by giving insufficient weight to the appellant's pleas of guilty, acknowledgment of wrongdoing and remorse.

The decision and reasons of Wheeler JA

9 Wheeler JA considered the grounds of appeal and concluded that neither of them had a reasonable prospect of success. See Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [60].

10 Wheeler JA dealt with the second ground of appeal, as follows:

Turning to the category of assertions about the appellant's personal circumstances, it is startling to suggest, as ground 2 does, that insufficient weight was given to the plea of guilty. That plea came on the second day of a retrial. That was almost as late as it was possible for the appellant to have pleaded guilty. Despite that, her Honour accepted during the course of her sentencing remarks that the plea did facilitate the course of justice and expressly advised that the appellant would receive "some reduction" in sentence for it (t/s 1467). Her Honour found, however, as it was open to her to do, that, notwithstanding the inability of the first jury to reach a verdict, the Crown case against the appellant was strong. She considered that neither the plea nor any of the other materials before her Honour indicated that the appellant was truly remorseful for his offending, although she did accept that he felt shame, felt sorry for himself, and for the predicament that he was in. In my view, all her Honour was obliged to do in the circumstances of this case was to give "some weight" to the plea of guilty. There is nothing to suggest that she erred in making the finding that she was not able to find that the appellant was, in fact, remorseful.

Finally, it is suggested that her Honour failed to pay sufficient regard to the personal circumstances of the appellant. She referred in her sentencing remarks, in some detail, to the relevant personal circumstances. She specifically noted those which were mitigating, as well as the appellant's criminal history of traffic offences and minor drug offences. Her Honour expressed the view that there was hope for the appellant's rehabilitation and that she had taken that fact, and the personal circumstances, into account. She also observed, manifestly correctly, that as a matter of sentencing principle, the seriousness of these types of offences and the

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damage they cause to Australian society made general and personal deterrence extremely important factors [19] - [20].

11 Wheeler JA then said:

In my view, the fact that the grounds and the particulars, and the submissions in support of them, rest largely on the erroneous propositions that the appellant played but a limited role in the importation, that he was remorseful, and that her Honour did not give any or adequate weight to personal factors, means that the grounds have no reasonable prospect of success. However, it is desirable finally to consider briefly whether, accepting as I do the findings which her Honour made, there is any reason for considering that it may be arguable that the sentences imposed were manifestly excessive [21].

12 After referring to Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [46], Wheeler JA examined the decisions in Cheung (1997) 97 A Crim R 283 and R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26, which she considered to be of some relevance. Her Honour said, in relation to the first ground of appeal:

In the present case, the quantity of drug involved is unusual, in the sense that a "large" quantity of drug is generally one of a few kilograms, or thereabouts. This amount was very significantly in excess of the quantity of drug which is often described as "large". However, it is plainly not the largest quantity which could ever be imported. The only case which appears to involve a roughly comparable quantity, although a different drug, was Cheung (1997) 97 A Crim R 283, involving the conviction after trial of an offender who was knowingly concerned in the importation of 45 kilograms gross (32.41 kilograms pure) of heroin. In his case, a sentence of 25 years' imprisonment was imposed and that was upheld on the basis that he was "a participant at the top of the range ... [and that] there was no mitigation in his case" (at 294 per Pidgeon J). In the present case, the quantity of drug was greater and the appellant was, while not a participant at the top of the range, an active and willing participant who played a crucial role. On the other hand, there were some significantly mitigating factors, including his age and the other factors to which her Honour referred.

Roughly 10 times the present quantity was imported by those offenders whose roles are described in the case of R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26. It should be noted that in Reaves, Reaves and his co-offender Suarez-Mejia, notwithstanding an early plea of guilty in each case, received sentences of life imprisonment with minimum terms of 18 years in the case of Reaves and 20 in the case of Suarez-Mejia.

Finally, I would note that the co-offender in this case, Sevilla, was sentenced, following a plea of guilty, to life imprisonment with a

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non-parole period of 21 years. An appeal against that sentence was dismissed [23] - [25].

Her Honour concluded, at [26], that after taking into account those decisions, and having regard to the maximum penalty for the offences, it could not be suggested that the sentences imposed on the appellant were manifestly excessive.

13 Wheeler JA therefore refused leave to appeal in relation to each ground, and dismissed the appeal.

The nature of the application to review Wheeler JA's decision

14 The appellant's application to review Wheeler JA's decision is not a hearing de novo. It is an appeal by way of rehearing, and the appellant must satisfy this court that her Honour made an error in refusing leave to appeal. See Keating v The State of Western Australia [2007] WASCA 98 [21]; Lawless v Turner [2007] WASCA 127 [4].

The relevant principles of appellate review

15 An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the sentencing judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge. The High Court has emphasised that there is no single correct sentence, and that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

The nature of manifest excess

16 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend

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upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].

17 In Vagh v The State of Western Australia [2007] WASCA 17, Roberts-Smith JA said:

Whether or not a sentence is manifestly excessive can only be gauged by seeing how the sentence falls with the established range of sentences for offences of the kind, taking into account all factors which are relevant to the offending and to the offender in the particular case. A claim that a sentence is manifestly excessive (or inadequate) is a claim of implicit (that is otherwise unidentifiable) error. It would ordinarily (if not always) be impossible to demonstrate that inadequate (or undue) weight was given to a particular factor, in the exercise of a sentencing discretion, in the absence of specific, identified error. The attribution of weight to one or more factors in a combination of factors is the very essence of discretionary judgment and (in the absence of a statutory requirement), ordinarily not to be quantified in sentencing (Markarian v The Queen (2005) 79 ALJR 1048). So the question can only be whether, having regard to all those relevant factors, the sentence imposed falls so far outside the range of sentences for offences of the kind as to lead to the conclusion that some error in the exercise of the discretion must have been made even though it cannot be identified (Cranssen v The King (1936) 55 CLR 509; House v The King (1936) 55 CLR 499) [47].

Also see Chan (1989) 38 A Crim R 337, where Malcolm CJ said:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender (342).

The appellant's contentions before this court

18 The appellant contended before this court that the decision of Wheeler JA should be set aside, and leave to appeal should be granted. Her Honour is said to have made two errors. The first is that she was wrong to conclude that it was an 'erroneous proposition' that the appellant played only a limited role in the importation. The second is in effect that, in finding that the argument that the sentences were manifestly excessive had no reasonable prospect of success, she placed insufficient weight on the circumstances of the appellant's limited involvement in the commission of the offences, the appellant's age, his antecedents, his

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acknowledgement of wrongdoing through his pleas of guilty and his prospects of rehabilitation.

19 Senior counsel complained that Wheeler JA was wrong in finding that it was erroneous to assert that 'the appellant played but a limited role in the importation' [21]. It was submitted that the appellant was 'very much a junior participant and played very much a junior role'. According to senior counsel, there was a 'wide gulf between his role and … position in the hierarchy as compared to that of the co-accused Sevilla'. It was submitted that the appellant's participation in the enterprise should be characterised as 'peripheral'. Senior counsel also suggested that the appellant was a 'gofer' acting at the behest of Mr Sevilla, he was not involved in arranging the importation of the drug, he had no role in paying for the drug, and there was no evidence before the court as to what he was to be paid for his participation. In all the circumstances, including those matters personal to the appellant, the sentence imposed by Jenkins J was 'arguably wrong', and each ground of appeal had a reasonable prospect of success.

Relevant sentencing considerations

20 By s 16A(1) of the Crimes Act 1914 (Cth), a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides that, in addition to any other matters, the court must take into account such of the matters specified in the subsection as are relevant and known to the court.

21 It is established that the major sentencing considerations for offences of trafficking in dangerous drugs of addiction, including cocaine, are general and personal deterrence. See Bellissimo (1996) 84 A Crim R 465, 471. Although the weight of the illicit drug is not, generally, the chief factor to be taken into account in fixing a sentence, it is, plainly, a matter of importance. Other matters to be taken into account include the offender's knowledge of the type and quantity of the drug in question, and the nature and level of the offender's participation in its trafficking. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; Tulloh [50]. Although matters personal to an offender will almost always be a very limited consideration in sentencing for serious drug trafficking offences, they are not entirely irrelevant.

22 The maximum sentence for the offences of which the appellant was convicted is a fine not exceeding 7,500 penalty units or imprisonment for life, or both, or for such period as the court thinks appropriate. See s 235(2)(c) (repealed) of the Customs Act.

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23 Section 19AB of the Crimes Act makes provision in relation to the fixing of a non-parole period. The basis upon which a non-parole period should be established is to fix the minimum period of imprisonment which the interests of justice require to be served because the sentencing judge considers that the offence requires such detention. The discretion in relation to an appropriate non-parole period must be exercised individually in each case. See Sinclair (1990) 51 A Crim R 418, 433. In Kaye v The Queen [2004] WASCA 227, Malcolm CJ (with whom Murray J agreed and McLure J agreed generally) said:

The minimum non-parole period required to be fixed under s 19AB of the Crimes Act need not conform to any particular proportion of the head sentence … however the usual range is from 60 to 66 per cent [49].

Also see R v To Si Thanh [2007] NSWCCA 200 [7].

Comparable cases

24 When considering the standards of sentencing customarily observed with respect to crimes of this kind it is, of course, necessary to have regard to a range of comparable cases, although each turns on its own particular circumstances.

25 The Western Australian cases do not provide a great deal of assistance. This is because there are few of them dealing with massive quantities of drugs and none of these is really comparable for present purposes.

26 In Cheung, the appellant was convicted of the offence of being knowingly concerned in the importation of 45 kg of heroin (32.41 kg of pure heroin). He was then 32 years old. He had pleaded guilty only to possession of the drugs in question and was convicted after trial on the offence charged. He had no prior criminal record. He assisted in loading drugs onto a ship in China. He then came to Western Australia in order to assist in the unloading and further distribution of the drugs in this country. His involvement was consequently significantly greater than that of the appellant in this case. He was sentenced to a term of 25 years' imprisonment with a non-parole period of 13 years. The sentence was upheld on appeal.

27 In R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577, the appellant was convicted of importing a quantity of 937.9 kg of cocaine (707.1 kg of pure cocaine). He was a Columbian national who had a prior conviction for the importation of cocaine into Curacao. He pleaded guilty to the offence charged. He represented the financiers of the

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importation and was responsible for guarding the drugs and ensuring their arrival at their intended destination. He was to be paid US$200,000 for his role in the importation. He was sentenced to a term of life imprisonment with a non-parole period of 20 years. Because of the high level of his involvement and the huge quantity of drugs involved, the case is of only limited assistance in considering the sentence to be imposed in the present case.

28 The same is true of Reaves and de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291. Each of Reaves and de la Espriella-Velasco were co-offenders with Suarez-Mejia. de la Espriella-Velasco had controlled and run the shore-based element of the process of importation. He pleaded not guilty to the offence charged. He was sentenced, after trial, to a term of life imprisonment with a non-parole period of 26 years. Reaves, who was a United States citizen, had purchased and modified the ship in which the drugs were imported. He piloted the ship into Australia and physically unloaded the drugs. He had a prior criminal history that included drug offences. He was to be paid US$300,000 for his role in the importation. He pleaded guilty. After a successful Crown appeal he was sentenced to a term of life imprisonment with a non-parole period of 18 years.

29 The cases elsewhere provide some assistance.

30 In R v Lee [2007] NSWCCA 234, the respondent, who was aged 31 at the time of sentence, lived in Hong Kong. He had no relevant criminal record. He was involved in the importation into Australia of 105.7 kg of heroin (76.3 kg of pure heroin). His wife and child lived in Hong Kong. He was convicted after a trial. The Court (Howie and Hall JJ agreed with McLellan CJ) accepted that the respondent was not the exclusive mind, or even a controlling mind, of the entire criminal enterprise but found that he played a critical role in the importation. The respondent's role extended over a significant period of time and involved the management of complex transactions culminating in the deposit of containers containing drugs in a warehouse in Sydney. His role was described as having been 'a senior management role of critical significance to the success of the enterprise' [33]. After a successful Crown appeal, the respondent was sentenced to a term of 28 years' imprisonment with a non-parole period of 19 years and 6 months. The Court said that, but for the fact that it was a Crown appeal, a non-parole period significantly in excess of 20 years would have been appropriate [38].

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31 While the circumstances in Lee are readily distinguishable, the judgment is particularly helpful in that it provides a schedule of sentences imposed in cases involving large quantities of drugs. Although it is difficult to find any truly comparable cases, we will refer to some of the cases in this schedule. However, it is important to bear in mind, when considering cases decided in New South Wales, that s 16G of the Crimes Act was repealed on 16 January 2003. That section provided that, if a federal sentence was to be served in a prison of a State where sentences were not subject to remission or reduction, the court imposing the sentence was required to take that fact into account in determining the length of the sentence and must adjust the sentence accordingly. Sentences in New South Wales were not subject to remission or reduction. Consequently, sentences imposed prior to 16 January 2003 were reduced in accordance with s 16G, but those imposed after that date were not.

32 In R v Vo [2000] NSWCCA 440; (2000) 118 A Crim R 320, the appellant was convicted of being knowingly concerned in the importation of heroin. The quantity involved was 54.5 kg of pure heroin. She was convicted after a trial, having pleaded not guilty. The heroin had been concealed in a consignment of tinned pineapple shipped to Sydney in 1997. The appellant arranged for Customs clearance, storage, delivery and unloading of the shipment. She was not the principal in the cartel responsible for the importation but was a 'key' participant, both before and after the container arrived in Australia. Her role was described as being more crucial to the success of the operation than that of her co-offenders. She was 25 years old at the time of commission of the offence. She was sentenced to a term of 22 years' imprisonment with a non-parole period of 14 years. Her appeal was dismissed.

33 In R v Heeng Ung [2000] NSWCCA 195, the court was concerned with one of Mrs Vo's co-offenders. He, too, had pleaded not guilty. His role in the commission of the offence had been to facilitate the transfer of heroin from wharves at Port Botany to Mrs Vo's shop. He assisted in stacking boxes upon their delivery to the shop. He was regarded as having played a significant role in the overall operation. He had previous convictions for dishonesty, but no drug-related convictions. He had shown no contrition and there was nothing notable by way of mitigation. He was sentenced to a term of 16 1/2 years' imprisonment with a non-parole period of 11 years.

34 In R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80, the four appellants had been involved in two offences relating to the importation into Australia of illicit narcotic drugs. MDMA tablets were

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imported inside a shipping container in hollowed-out tiles. Heroin was imported in a bottle of Baileys Irish Cream. The quantities were 52 kg of pure MDMA and 477 g of pure heroin. One of the appellants, Pham, and another man travelled to Hong Kong to meet with a principal in the enterprise, Mr Peter Lam. Pham instructed freight forwarders and oversaw delivery of the drugs. He maintained counter-surveillance to ensure that no authorities were interested in the shipment. He was in regular telephone contact with Lam. He was to be paid $500,000 for his role. He pleaded guilty and provided assistance to the authorities. After a successful appeal, he was sentenced to 27 years' imprisonment with a non-parole period of 18 years.

35 One of Pham's co-offenders, To, arrived in Australia after the drugs had been imported. He was Lam's 'eyes and ears at the Sydney end of the operation' and was described as a 'supervisor and monitor' of Lam's interests. He was physically involved in the removal of what he believed to be the MDMA from the reconstructed tiles (police had substituted an inert substance). He was described as having been a participant at the highest level after that of a participant who had a direct entrepreneurial stake in the importation. He had a prior conviction for a serious drug-related offence in Hong Kong. He pleaded guilty to the offence of importation of the MDMA. After a successful appeal against sentence, he was sentenced to a term of 22 years' imprisonment with a non-parole period of 16 1/2 years in respect of the MDMA offence.

36 In R v Lam [2005] VSC 98, the defendant, a Chinese citizen, was convicted, after pleading guilty, on a charge of aiding and abetting the importation of heroin. The amount involved was 82.29 kg of pure heroin. His function had been to arrange the delivery of heroin contained in a ship to others on shore. His role was described as having been 'significant', and above that of a mere courier. Although he operated under the directions of others, he was given a high degree of responsibility and authority. He was present to receive the drugs and had the means to be in contact with the ship. He was a young man with no family. He had no prior convictions. He was sentenced to a term of 23 years' imprisonment with a non-parole period of 16 years.

37 In R v Teng [2005] VSC 33, the defendant was one of Lam's co-offenders. He, too, pleaded guilty. He had no prior convictions. He had been in direct telephone contact with people at the head of the organisation who had arranged the importation. He was responsible for the preparation, transportation and storage of the narcotics. He acted under instructions from others. His motivation for the offending was the

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payment of his debts. He received an amount of $80,000 for his participation. He had no prior convictions and his prospects for rehabilitation were good. He was sentenced to a term of 22 years' imprisonment with a non-parole period of 15 years.

38 In R v Mo [2007] NSWCCA 61; (2007) 169 A Crim R 60, the respondent pleaded guilty to attempting to commit an offence against s 233B(1) (repealed) of the Customs Act in that he and his co-accused attempted to have in their possession a prohibited import, namely, heroin. The weight of the pure heroin was just over 76 kilograms, and the weight of the mixture including the heroin was almost 106 kilograms. The other relevant facts were summarised in the reasons of Adams J (with whose orders Sully and Barr JJ agreed, and with whose reasons their Honours generally agreed, subject to disagreement in relation to one point which is not relevant for present purposes):

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

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and Tang could get access to the rooves. He hired a vehicle and bought cutting equipment. The respondent had arranged, once the drugs had been recovered, to deliver them to his principals. On 12 May the respondent and Tang spent several hours attempting to gain access to the contents in the containers. However, the police had already removed the drugs. Tang and the respondent were preparing to leave the premises when police entered and arrested them.

A conservative estimated street value of the heroin seized from the containers by police is $60 million. Although it is not suggested that the respondent was aware of the actual quantity of drugs, let alone of its value, it is clear that he must have known that it was a substantial quantity and, at all events, was prepared to assist in recovering the heroin, whatever its quantity happened to be [26] - [27].

39 The respondent in Mo had pleaded guilty very shortly after he was made aware of the nature of the Crown case against him, had provided assistance to law enforcement authorities before his sentence, had promised future assistance to those authorities (including a willingness to give evidence), was likely to serve his prison sentence under conditions significantly harder than those suffered by the general prison population as a result of his cooperation with law enforcement authorities, appeared to have been a person of good character before the commission of the offence in question, was 27 years of age at the time of sentencing, and had generally favourable antecedents including no previous criminal history. At first instance, the respondent was sentenced to imprisonment for 9 years with a non-parole period of 6 years. The Crown appealed on the ground that the sentence was manifestly inadequate. The Court of Criminal Appeal allowed the appeal and re-sentenced the respondent. Adams J noted, at [35], that the new sentence was 'significantly below' that which should have been passed at first instance, having regard to the restraint exercised by an appellate court when allowing a Crown appeal against sentence. His Honour then said:

In my view, the appropriate starting point before allowing any discount to the respondent is twenty-two years’ imprisonment. Having regard to the information provided to the Court, I would provisionally allow a discount for assistance to the authorities of 30%, which includes an allowance of 20% for future assistance. To this I would add 10% discount for the utilitarian value of the respondent’s plea. In all, this discount yields a head sentence of thirteen years and two months (rounded down). Applying the conventional ratio between the head sentence and the non-parole period applicable in Commonwealth offences, there would, on these numbers, be a non-parole period of eight years and eight months (rounded down). The question then to be considered is whether this sentence, by virtue of the discounts, is so low as to be outside the available discretionary range. Where such is the case, the allowance for assistance must be varied to

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correct the inappropriate leniency. In my view, the sentence that I propose, although at the bottom of the available range (as a consequence of the restraint applying on Crown appeals) is not so inappropriately inadequate as to lead me to reconsider the discounts which I have applied [36].

40 Mo is distinguishable from the present case on two bases. On the one hand, the offender in Mo had a more significant involvement in the criminal scheme than the present appellant. On the other, unlike the present appellant, the offender in Mo was re-sentenced in the context of a Crown appeal, and he was entitled to significant discounts for an early plea of guilty, past and future co-operation with law enforcement authorities, and the likelihood of his suffering a harsher prison environment as a result of that co-operation.

The merits of the appellant's application to review Wheeler JA's decision

41 In the present case, the appellant committed, without doubt, very serious offences.

42 It is difficult to place the appellant within the hierarchy of the organisation which sought to carry out the enterprise of importing and distributing the cocaine. There was no evidence before Jenkins J as to how the appellant came to be recruited or what he expected to gain from the transaction. However, it is plain that Jenkins J sentenced the appellant (correctly, in our respectful opinion) on the footing that he did not have a managerial or directorial role, and he was not involved in purchasing the drug or arranging its importation. The appellant was, however, more than a mere courier. Her Honour sentenced him, appropriately, on the basis of what he knew about the enterprise and what he did to assist its implementation.

43 We are not persuaded that Wheeler JA made any error in concluding that it was wrong to suggest that the appellant played only a 'limited role' in the importation. Words of that kind necessarily import a value judgment: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [19]. As McLellan CJ at CL has recently pointed out in Lee [25], just as inappropriate emphasis on the amount of the drug may lead a sentencing court into error, so may problems emerge when a sentencing court attempts to categorise the role of the offender in the criminal enterprise. What is important is whether her Honour correctly understood what it was that the appellant knew and did concerning the importation of the drug, and how that compared with the role of others who were involved. Wheeler JA, and Jenkins J before her, accurately described the appellant's role.

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44 As both Wheeler JA and Jenkins J pointed out, the appellant's involvement must be seen in the context of the massive quantity of drugs imported. Of course, in assessing the degree of his criminality, it would be an error to focus exclusively on the quantity of the drug: Wong. However, in making this point, the majority in Wong [67] - [78](Gaudron, Gummow and Hayne JJ) was seemingly influenced by the consideration that persons involved in drug trafficking activities may not always be aware of the amount of drug proposed to be imported: see also Lee [23] (McLellan CJ at CL).

45 It is also important to bear in mind what was said by the majority, in Wong, as follows:

In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation (cf R v Olbrich (1999) 199 CLR 270), the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted [64].

46 We would also respectfully endorse the comments of Howie J in Nguyen, as follows:

There is nothing in the passage from Wong … [at 609, where the majority discussed the significance of weight] that suggests that in an appropriate case the amount of the drug involved in the importation is not a highly relevant factor in determining the objective seriousness of the offence even to the extent of assessing that a particular offence is in the worst category of its type. In many cases the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar [110].

47 In the present case, although it is not apparent that the appellant knew the precise quantity of cocaine or its value, he must have known that it was a very substantial quantity and, in any event, he was willing to be
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closely connected with facilitating its importation, and its transportation from Albany to somewhere else in Australia. The appellant was asked to find four bags in which to store the cocaine. Also, a covertly recorded telephone conversation between the appellant and Mr Sevilla revealed that he was assisting Mr Sevilla to plan how and where a large amount of cocaine was to be brought ashore and hidden. The actual weight of the cocaine, in fact, far exceeded the minimum quantity which constituted a 'commercial quantity' for the purposes of Sch VI (repealed) of the Customs Act.

48 It is true that the appellant had a more junior role than Mr Sevilla. The appellant was, however, instrumental in assisting him. The nature and extent of that assistance is recorded in the sentencing remarks of Jenkins J. The appellant took a number of steps that were necessary to the success of the enterprise. His assistance was all the more valuable because Mr Sevilla was not fluent in English. The appellant was one of two, or possibly three, people who were trusted with knowledge of the location of the cocaine. The appellant's involvement in facilitating the criminal scheme was not fleeting. He participated in numerous activities from time to time over a period of about a fortnight. In these circumstances, while it may be accepted that the appellant's role was a junior role when compared with that of Mr Sevilla, it could not be described as a 'limited role', and Wheeler JA correctly rejected that description of it.

49 The difference in the sentences imposed upon the appellant and Mr Sevilla reflects the extent to which they were implicated in the enterprise and their culpability. The grounds of appeal do not contend that the sentence imposed on the appellant offended the principle of parity in sentencing as between co-offenders. Although the appellant was at the lower end of the organisational hierarchy, he had a significant role at that level.

50 In the present case, the nature of the drug and its weight, and issues of general and personal deterrence, were of particular importance in the sentencing process. The appellant's knowledge that he was facilitating a major transaction for the importation and distribution of an illicit drug, and the nature and level of his participation, were also important. Matters personal to him were a relevant factor, but they were of relatively limited significance.

51 Although, as we have said, the weight of the illicit drug in question is only one factor, in the present case it was a very significant factor. The

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quantity of cocaine imported was such as to be likely to cause untold damage and misery, once released into the community. Also, as we have said, although the appellant's role was a junior one, it was nevertheless important and ongoing. In our opinion, it was not reasonably arguable that, in all of the circumstances, the sentence imposed on the appellant was manifestly excessive.

52 We are not persuaded that Wheeler JA made any material error of law or fact in refusing leave to appeal. The appellant has not established any basis for setting aside her Honour's decision. Neither ground of appeal has a reasonable prospect of success. We would dismiss the application to review.