Tang v The Queen

[2020] WASCA 194

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   TANG -v- THE QUEEN [2020] WASCA 194

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   21 JULY 2020

DELIVERED          :   24 NOVEMBER 2020

FILE NO/S:   CACR 141 of 2018

BETWEEN:   CHEE SENG TANG

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   FIANNACA J

Citation:   R -v- LAW & ORS [2018] WASCSR 123

File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Sentencing - Appeal against a sentence of 23 years' imprisonment with a non-parole period of 15 years for importing 145.6 kg (pure weight) of methamphetamine - Whether sentencing judge erred in assessment of comparative criminality of the appellant and his co-offenders - Whether sentence infringed the parity principle - Whether sentence was manifestly excessive

Legislation:

Criminal Code (Cth), s 307.1

Result:

Leave to appeal granted
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	A Robson
Respondent	:	D Renton and J Johnston

Solicitors:

Appellant	:	Legal Aid Commission
Respondent	:	Director of Public Prosecutions (Cth)

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

Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Bembo v The Queen [2019] VSCA 308

Chong v The Queen [2020] WASCA 143

Director of Public Prosecutions (Cth) v Aisbett [2009] VSCA 172

Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162; (2017) 268 A Crim R 309

Director of Public Prosecutions (Cth) v Wang [2019] VSCA 250; (2019) 279 A Crim R 491

Heng v The Queen [2019] NSWCCA 317

Higgs v The Queen [2015] VSCA 223

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Jackson v The Queen [2020] NSWCCA 230

Karam v The Queen [2015] VSCA 50

Kuo v The Queen [2018] NSWCCA 270

Luo v The Queen [2020] WASCA 184

Ngo v The Queen [2017] WASCA 3

Parker v The Queen [2020] NSWCCA 206

R v Campillo-Vaquere [2004] NSWCA 271

R v Flavel [2001] NSWCCA 227

R v Gonzales-Betes [2001] NSWCCA 226

R v Le [2019] QCA 200

R v Ng [2012] WASCA 180

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26

R v Scott [2017] SASCFC 96

R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577

Samardali v The Queen [2018] WASCA 220

Sevilla v The Queen [2007] WASCA 116

Shakhanov v The Queen [2019] VSCA 38

Sukkar v The Queen (No 2) [2008] WASCA 2; (2008) 178 A Crim R 433

Sukkar v The Queen [2007] WASCA 166

Vanit v The Queen (1997) 190 CLR 78

Wangsaimas v The Queen (1996) 6 NTLR 14

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

JUDGMENT OF THE COURT:

Summary

1. On 14 December 2017, the appellant was convicted after trial of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine. That is an offence contrary to s 307.1(1) of the Criminal Code (Cth), for which the maximum penalty was life imprisonment or a fine of $1,350,000, or both. On 26 June 2018, the appellant was sentenced to 23 years' imprisonment, with a 15 year non‑parole period.

2. The offence was allegedly committed on 1 May 2016, when at least 182.41 kg (145.6 kg pure weight) of methamphetamine was landed on the Western Australian coast by a tender launched from a fishing vessel.  The drugs were collected by members of a criminal syndicate at the landing site, and driven to the Perth metropolitan area. 182 kg of methamphetamine from the fishing vessel was subsequently seized by police from two locations.

3. Two persons on the fishing vessel, Kai Cheong Law and Jie Luo, were subsequently convicted of the same offence after a joint trial with the appellant.  The drugs were collected from the landing site by the appellant and three other persons - the appellant's co-accused Fook Choi Ching and Yuen Kuan Chong, as well as Kian Kee Tan.  Mr Tan, who was also referred to as 'Fat Boy', departed Australia before being arrested and was not charged with the offending.  Those men met with two other co-accused - Kinboon Yong and Teck Kong Wong - at the Wilbinga rest stop, located about 70 km north of the Perth central business district.

4. The bags of drugs were transported to the Perth metropolitan area.  On 21 May 2016, about 131 kg of methamphetamine (105 kg pure weight) was located at an address in Cannington that had been leased by Mr Yong.  On 23 May 2016, about 51 kg of methamphetamine (40 kg pure weight) was located at an address in Embleton occupied by Yokay Chan Chin.  Mr Chin pleaded guilty to an offence of possession of the methamphetamine located at his residence, and was not tried with the appellant and his other co-accused.

5. The sentences received by the offenders in respect of the importation offence, and by Mr Chin in relation to the possession offence, were as follows:

Offender	Term of Imprisonment	Non-parole period
Teck Kong Wong	26 years	17 years
Kinboon Yong	26 years	17 years
Kai Cheong Law	26 years	16 years
Fook Choi Ching	23 years	15 years
Jie Luo[1]	23 years	15 years
Chee Seng Tang (the appellant)	23 years	15 years
Yuen Kuan Chong[2]	17 years 3 months	11 years 3 months
Yokay Chan Chin	15 years	9 years 8 months

[1] An appeal against conviction by Mr Luo was dismissed: see Luo v The Queen [2020] WASCA 184.

[2] An appeal against conviction by Mr Chong was successful, and a retrial was ordered: see Chong v The Queen [2020] WASCA 143.

1. The appellant now appeals against his sentence on three grounds.  Ground 1 alleges that the sentencing judge erred in fact in categorising the appellant's criminality as being at the same level as Mr Chong.  Ground 2 contends that the sentence imposed on the appellant infringed the parity principle.  Ground 3 contends that the appellant's sentence is manifestly excessive both as to the term of imprisonment and the non-parole period.  The application for leave to appeal on these grounds has been referred to the hearing of the appeal.

2. For the following reasons, in our view there is no merit in grounds 1 or 2 and we would refuse leave to appeal on those grounds.  While arguable, in our view ground 3 is not established.  We would grant leave to appeal on ground 3, but dismiss the appeal.

Circumstances of offending - conduct of the importation operation

1. The sentencing judge made the following factual findings about the circumstances in which the methamphetamine was imported into Australia.  None of those findings of primary facts are challenged in this appeal.

Overview of operation[3]

[3] R v Law and ors [2018] WASCR 123 (Sentencing remarks) [12] - [17].

1. The importation was the result of a well-planned and sophisticated international operation, which appears to have been coordinated by persons in Hong Kong and Malaysia.  It involved coordinating the efforts of two groups of participants who had been recruited by those persons. 

2. The first group was to transport the drugs to Australia on a fishing vessel, with the landing to be carried out by the use of a tender vessel. 

3. The second group was sent to Australia to put in place the necessary resources to enable the drugs to be collected once they were delivered to shore and to be distributed after that. 

4. Both the vessel and the land-based offenders were in contact with associates overseas.  Those associates provided the line of communication by which each group had an awareness of the role and status of the other. 

5. The land-based party travelled to Australia by air, coming to Perth via the east coast.  The operation involved the purchase of vehicles and the leasing of premises for the collection and subsequent storage of the drugs prior to distribution.  Those who were land-based were paid an income and had to account for expenses to an accountant offshore.  Those who were on the vessel were to be paid later.

6. A suitable remote location for the drop off was identified.  A number of the persons in the land‑based party were involved in that process.  GPS navigation devices were purchased for that purpose.  GPS coordinates were conveyed to persons offshore who were in communication with the skipper on the vessel and conveyed the coordinates to him. 

7. The plan was for the fishing vessel to remain well off the coast of Western Australia and for 15 large carry bags containing the methamphetamine to be delivered to shore on a tender, which was fitted with powerful outboard motors.  The methamphetamine was in crystalline form, and would appear to have been in sealed plastic bags within the 15 carry bags. 

8. When the drugs were delivered to the coast, at the designated landing site, a number of the participants in the land-based party were ready to receive them and transport them to the Perth metropolitan area where the drugs were repackaged in suitcases that were secured at two separate premises.

9. The total gross weight of the imported drugs was at least 182.41 kg.  The average purity was about 80%, so that the net weight of pure methamphetamine was about 145.6 kg.  Australian Federal Police estimated the street value of the gross quantity of the drugs to be approximately $32,833,000 - $40,130,000 if sold by the kilogram, or in the vicinity of $91,205,000 if sold by the gram.

Conduct of importation[4]

[4] Sentencing remarks [18] - [34].

1. The fishing vessel was a wooden-hulled commercial fishing vessel.  At a little more than 30 m long, it was a relatively large vessel, but it was in very poor condition.  The vessel was difficult to steer, but had modern and quite sophisticated navigation equipment.  A large number of empty boxes on the top deck of the vessel were intended to give the false impression that it was a working fishing vessel, although there was no fishing equipment on board.

2. The fishing vessel travelled from the South China Sea to Australia.  It was a long and potentially dangerous journey.  There were eight persons on board, all Chinese nationals.  Mr Luo was the skipper of the fishing vessel.  Mr Law was on board to supervise the others and report back to someone who was at a higher level in the criminal syndicate.  Six other persons, who were acquitted at trial, were also on board the fishing vessel.

3. The fishing vessel took between 10 and 15 days to reach the location from which the tender was to be launched.  By 30 April 2016, the vessel had reached a location between 100 and 120 nautical miles off the coast south of Geraldton.

4. On or about 1 May 2016, while the fishing vessel was in the same general location, the drugs were loaded onto the tender vessel and were delivered on that vessel to a remote beach landing site south of Port Denison in Western Australia, arriving around 5:30 am on 1 May 2016.  There were two persons from the fishing vessel on board the tender.

5. At least four persons from the land-based party attended the beach landing site that morning, perhaps arriving the night before, to receive the drugs from the tender.  The appellant, Mr Ching, Mr Chong and Mr Tan were in that group.  They travelled to the beach location in four-wheel drive vehicles that had been purchased for the purposes of the criminal enterprise.  In all, three vehicles were taken to the location.  They gained access by a dirt road that turned off from Indian Ocean Drive.  The coordinates for the turn off and the beach landing site were contained in a notebook that was later found in Mr Chong's bedroom.

6. The four men who were at the beach location collected the 15 black bags containing the drugs from the tender when it arrived.  Mr Chong had been asked to buy cooking salt for the vessel, which he supplied to those on the tender.  Fourteen of the bags containing drugs were transferred to the three vehicles that were parked nearby.  One of the bags was inadvertently left behind when the vehicles departed the beach location.

7. The bags that were in the vehicles were driven to a rest stop at Wilbinga on Indian Ocean Drive, where Mr Yong was waiting, having been driven there by Mr Wong in a fourth vehicle.  When the three vehicles containing the drugs arrived, Mr Yong and the men who brought them there redistributed the bags across the three vehicles for transportation to the Perth metropolitan area.  The vehicles returned to the metropolitan area.

8. Later that day, Mr Yong and Mr Tan discovered that the 15th black bag containing drugs had been left at the beach landing site.  The communications between them about the missing bag were in code, referring to a missing 'fish'.  Mr Ching, Mr Tan and Mr Chong returned to the site to retrieve the missing bag.  They found the bag and brought it back to the metropolitan area.

9. The tender returned to the fishing vessel, reaching the vessel by 1.00 pm.  After the tender was retrieved, the shipping vessel commenced its journey north.  It was intercepted by police around 6.00 pm on 1 May 2016, around 120 nautical miles off the coast of Western Australia.

Investigation[5]

[5] Sentencing remarks [35] - [46].

1. All of the persons on board the fishing vessel were taken into immigration detention by Australian Border Force officers once the vessel was brought into Geraldton port.  All were subsequently charged with the importation offence. 

2. In the course of the investigations that followed, police conducted searches under warrant at the premises at which members of the land‑based party were living.  The appellant, Mr Ching and Mr Chong were living at a house in Thornlie.  Mr Yong was living in a house in Canning Vale, but was also renting a house in Gerard Street, East Cannington.  Mr Wong was living in a house in Thomas Street, East Cannington, and had also rented a house in Mallard Way, Cannington.  Mr Chin (whose role was to warehouse some of the drugs once they had been transferred into suitcases) was living in a house in Embleton. 

3. During the searches, police located the following drugs which had been imported by the fishing vessel:

   (1)While searching the house rented by Mr Yong at Gerard Street, East Cannington on 21 May 2016, police found and seized 131.32 kg (gross) of methamphetamine in five suitcases and 1 kg (gross) in a box containing clip seal bags.  All of those items were in a bedroom.  The drugs were packaged in 133 clip seal plastic bags, each of which contained approximately 1 kg of the drug.

   (2)While searching the house occupied by Mr Chin at Embleton on 23 May 2016, police seized 50.09 kg (gross) of methamphetamine in two suitcases in locked bedrooms.  The drug was contained in 50 clip seal bags, each weighing approximately 1 kg.  Mr Chin was present when the search warrant was executed at that address.

   There were, therefore, a total of 183 clear plastic bags, 182 of them being in the seven suitcases that were found at those two addresses.  The clip seal bags were marked with lettering and numbers, such as A3 and B3, which suggested that the contents of particular suitcases may have been intended for a specific destination or designated distribution.

Appellant's role in the offending

1. The sentencing judge made the following findings about the appellant's role in the offending.

2. The appellant arrived in Australia on 21 February 2016, for the purpose of being involved in a drug importation syndicate.  On 23 February 2016, the appellant purchased the Mitsubishi Triton which he used as his vehicle and eventually as one of the vehicles used to collect the drugs from the beach location on 1 May 2016.[6]

   [6] Sentencing remarks [90] - [91].

3. The appellant was in contact with Mr Tan, who had a supervisory role in relation to the shore party.  He reported his expenses to the 'company accountant'.  He also made inquiries about payment, expense reporting and an advance.  He involved himself in the enterprise for commercial gain.[7]

   [7] Sentencing remarks [92].

4. The appellant was part of the shore party that attended the beach location on 1 May 2016 for the handover of the drugs.  He was involved in the transport of the first 14 bags to the Perth metropolitan area, but did not return to the landing site for the missing bag.[8]

   [8] Sentencing remarks [94].

5. The trial judge did not accept that the appellant's role could adequately be described as that of a driver for others who were at a higher level in the enterprise, or as a courier.  Like Mr Ching, the appellant was at the 'frontline of the activities necessary to ensure that the importation of the drug would be successful'.  He was 'part of a team, entrusted with important information about the delivery and entrusted to take possession of the product'.[9]

   [9] Sentencing remarks [95].

6. Phone downloads of communications on 8 May 2016, one week after the importation, suggest that the appellant knew of upcoming importations, similarly to Mr Ching.  He was not charged with any offence concerning prospective importations, but his knowledge of them suggested that he was trusted with the information and that he had a potential ongoing role in the importation of border controlled drugs into Australia by the syndicate.[10]

   [10] Sentencing remarks [96].

Appellant's personal circumstances

1. The sentencing judge made the following findings as to the appellant's personal circumstances.[11]

   [11] Sentencing remarks [148] - [153].

2. The appellant was 41 years old at the date of sentence.  He was born in Malaysia.  He is not married and has no children. 

3. The appellant has no prior criminal history.  Prior to coming to Australia he worked as a shop assistant in a herbal shop for 12 years.  He left that employment looking for something better.  The appellant had personal debts of RM45,000.  After leaving that job, the appellant found it very difficult to obtain alternative employment.  What was available was very poorly paid.

4. After being unemployed for some time, the appellant was approached by an acquaintance who suggested work in Australia.   The appellant's unemployment was a motivating factor in his coming to Australia for the offending.

Findings in relation to co-offenders

1. As the appellant appeals on a parity ground, it is relevant to note the following findings made by the sentencing judge as to the role in the offending and the personal circumstances of the co-offenders.

Mr Wong

1. Mr Wong arrived in Australia on 20 October 2015.  Shortly after that, he opened a bank account.  He reported the expenses he incurred to the syndicate accountant.  He rented two premises in Cannington, in order to further the interests of the syndicate in some way, including by having a place where he could reside and from which he could operate.[12]

   [12] Sentencing remarks [107] - [108].

2. On 1 May 2016, Mr Wong drove Mr Yong to the Wilbinga rest stop, knowing that they were to receive the drugs at that location.  He was involved in the purchase of items used in the repackaging of the drugs and communicated with Mr Yong about cleaning up the premises where they were repackaged.[13] 

   [13] Sentencing remarks [109].

3. Mr Wong had prior knowledge of the importation and the amount of drugs that were to be distributed.  Although he was charged with aiding in the importation, Mr Wong had a supervisory role, which was similar to Mr Yong.  Mr Wong had a high level of trust and responsibility within the enterprise, and his principal motivation for participating in the enterprise was commercial reward.[14]

   [14] Sentencing remarks [110] - [113].

4. Mr Wong was 56 years old at the time of sentencing.  He was married with two children aged 15 and 22 years.  Prior to coming to Australia he was involved for some 25 years in an air conditioning company in Singapore.  He had no previous convictions and was in reasonable health.[15]

Mr Yong

[15] Sentencing remarks [159] - [161].

1. Mr Yong arrived in Australia on 16 October 2015.  He came to Australia to be part of the syndicate and to prepare for the anticipated arrival of the vessel that delivered the drugs.  Three days after his arrival, he opened a bank account.  He reported the expenses he incurred on a regular basis to the 'accountant', and was in contact with Mr Tan.  He was the lessee of two of the properties used for the operation.[16]

   [16] Sentencing remarks [100] - [101].

1. On 10 December 2015, Mr Yong purchased the GPS device that was used to travel to locations associated with the drugs.  He also purchased a number of items that were used in the repackaging and storage of the drugs for distribution.[17] 

   [17] Sentencing remarks [102].

2. On 1 May 2016, Mr Yong attended the Wilbinga rest stop in order to collect the drugs that had been driven there from the beach location and take them to the properties he had leased for the drugs to be repackaged.  Mr Yong was in communication with Mr Tan on that day in relation to the missing 15th bag.  He was in communication with Mr Wong in relation to cleaning up the premises where the drugs had been repackaged.  The black carry bags used to import the drugs were found in Mr Yong's bathroom.[18]

   [18] Sentencing remarks [103].

3. Mr Yong had effective control of both premises where the drugs were repackaged, and was aware of the nature and quantity of the drugs prior to them being repackaged.  He was primarily responsible for the repackaging and distribution of the drugs.  He spoke to another person in coded language about drying out methamphetamine that may have become wet.  Mr Yong had a level of oversight over the three members of the shore party (including the appellant) who were living at the Thornlie address.[19] 

   [19] Sentencing remarks [104] - [105].

4. Mr Yong was motivated by financial reward for his role in the enterprise.[20] 

   [20] Sentencing remarks [106].

5. Mr Yong was 44 years old at the time of sentence.  He was born in Malaysia, and had lived there most of his life.  His parents were farmers and he described his background as middle class.  He attended high school and worked on the family farm until he started his own packaging and delivery business, which was still running when he came to Australia.[21]

   [21] Sentencing remarks [154] - [155].

6. Mr Yong has been married since 2012 and has a son by that marriage.  His family remains in Malaysia.  He has no prior convictions.[22]

Mr Law

[22] Sentencing remarks [156] - [157].

1. Mr Law was engaged to be the supervisor or overseer on the fishing vessel.  He was in a position of trust and had authority over the crew of the vessel.  He was to receive HK $100,000 (which equates to about AUD $16,800) for the trip.  He participated in the venture for commercial gain, knowing the purpose of the journey and his role in the enterprise.[23]

   [23] Sentencing remarks [77] - [80].

2. Mr Law was 58 years old at the time of sentencing.  He was born in Hong Kong and was married for 20 years, but is now divorced.  He has one 27 year old son.  He is the oldest of six siblings, with very limited education.  He worked as a taxi driver in Hong Kong until suffering a stroke on 19 May 2015.  After that, he received a pension of about HK $7,000 per month and lived in a nursing home.  He did do not have savings of any significance.[24] 

   [24] Sentencing remarks [134] - [136].

3. Mr Law had no prior criminal convictions.  He was not in good health, was taking regular medication and he did not expect to survive the inevitably lengthy prison term that was to be imposed.[25]

Mr Ching

[25] Sentencing remarks [137] - [138].

1. Mr Ching arrived in Australia on 28 February 2016.  He entered Australia for the purpose of being involved in a drug importation syndicate.  Shortly after his arrival, Mr Ching opened a bank account and reported expenses to 'the accountant'.  These steps were in preparation for the arrival of the drug shipment.  Mr Ching knew the shipment was going to arrive by sea.[26] 

   [26] Sentencing remarks [82] - [83].

2. Mr Ching was part of the shore party that attended the beach to collect the bags containing the methamphetamine.  When it was discovered that a bag had been left behind, he went back to the landing site with Mr Tan to find it.  Mr Ching had been to the landing site before and made logistical preparations for the arrival, such as checking the route.[27]

   [27] Sentencing remarks [84] - [85].

3. Mr Ching was motivated by commercial reward and was 'an important part of the team that undertook critical steps, without which the importation of the drug and its potential dissemination within Australia would never have been possible'.[28]  He had intimate information about how the importation would take place before it happened. 

   [28] Sentencing remarks [86].

4. After the importation took place, Mr Ching continued to live at the Thornlie address and continued to associate with Mr Chong and the appellant.  In a communication on 18 May 2016, he talked about the next shipment and how much he would be paid.  He had an expectation that he would continue to be involved in the drug importation enterprise with the same syndicate.[29]

   [29] Sentencing remarks [88].

5. Mr Ching was married with children.  His wife and children live in Malaysia.  He was the sole breadwinner for the family.  He did not have a prior criminal record.[30]

Mr Luo

[30] Sentencing remarks [143].

1. Mr Luo was the skipper of the fishing vessel, engaged because he had worked as a fisherman and was able to navigate a vessel of that kind.[31] He was to be paid 6,000 yuan for a month's work.[32]  He entered into an agreement with at least one other person to import a border controlled drug into Australia before he boarded the vessel.  Mr Luo boarded the vessel to carry out the agreement, aware that the purpose of the voyage was to bring a border controlled drug to Australia.[33]  Mr Luo was aware of the quantity of the drug being imported, if not in relation to specific weight then at least to the extent that it was a very substantial amount consistent with the scale and sophistication of the operation.  He was not aware of the purity of the drug, but knew it was an illicit drug that could bring the syndicate significant commercial profit.[34]

   [31] R v Luo [2019] WASCSR 128 [14], [23].

   [32] Luo sentencing remarks [17].

   [33] Luo sentencing remarks [27].

   [34] Luo sentencing remarks [69], [76].

2. Mr Luo navigated the fishing vessel from the South China Sea to Australia.  It was a long and potentially dangerous journey.  Mr Luo told the police that the journey took 15 days to reach the location from which the tender was launched. He was responsible for navigating the fishing vessel and was separately in contact with one or more of the organisers to receive coordinates for the voyage.[35]

   [35] Luo sentencing remarks [28] - [29].

3. Mr Luo was also the skipper of the tender when it delivered the drugs to shore.  He had been provided with the coordinates of the landing site.[36]

   [36] Luo sentencing remarks [33] - [34].

4. Mr Luo was 51 years old at the time of sentencing.  He has no prior criminal record.  He was a fisherman by trade with little to no formal education.  He came from a poor family, and had children aged between 4 months and 22 years at the time of the offending.[37]

   [37] Luo sentencing remarks [105] - [107].

5. There were personal factors relevant to Mr Luo which are unnecessary to address in these reasons, but which led to a reduction in his sentence of about 12%.

Mr Chong

1. Mr Chong entered Australia on 13 January 2016 on a tourist visa.  He arrived at the Gold Coast and then made his way to Sydney. While in Sydney, Mr Chong opened a bank account, and over a period of time reported expenses to 'the accountant'.  He received payments into his bank account totalling $13,250 from the organisers of the criminal enterprise in Malaysia.[38]

   [38] R v Chong [2018] WASCSR 126 (Chong sentencing remarks) [67].

2. Mr Chong subsequently travelled from Sydney to Perth in company with Mr Tan.  The house in Thornlie was rented in Mr Chong's name, but had been obtained for rental purposes prior to his arrival.  Mr Chong lived there with the appellant and Mr Ching.[39]

   [39] Chong sentencing remarks [68].

3. On 15 February 2016, Mr Chong purchased the Ford Ranger which is one of the vehicles in which the methamphetamine received at the beach location was conveyed back to Perth.  When he purchased the car Mr Chong was in company with Mr Tan. Mr Chong subsequently used the vehicle as his own.[40]

   [40] Chong sentencing remarks [69].

4. On a number of occasions between February and April 2016, Mr Chong travelled to the Geraldton area with Mr Tan and others to identify a suitable location for the delivery of the drugs from the fishing vessel.  He made searches on the Internet in respect of the area to identify periods when there might be campers there, and when aircraft might be flying over the area.  This was part of endeavouring to identify a location that would be safe for the delivery without the prospect of scrutiny from members of the public or being observed from aircraft flying in the area.  Mr Chong was involved to some degree in the assessment or choice of a landing site, as well as investigating risks associated with the site.[41]

   [41] Chong sentencing remarks [70] - [72].

5. On 30 April 2016, Mr Chong went to the beach location with Mr Tan, Mr Ching and the appellant.  Mr Chong drove the Ford Ranger to the site. After the drugs were collected by the four men and placed in the vehicles, Mr Chong drove the Ford Ranger to the Wilbinga rest stop. From that location he drove the Mitsubishi ASX that had been rented by Mr Tan, which was one of the three vehicles that was taken to the landing site.  The appellant drove Mr Chong's vehicle, and Mr Yong drove the third vehicle.[42]

   [42] Chong sentencing remarks [73].

6. When later that day it was discovered that one of the bags had been left behind, Mr Chong was one of the three offenders who returned to the beach location to find it.[43]

   [43] Chong sentencing remarks [74].

7. Mr Chong did not have any role in the repackaging of the drugs or further distribution.[44] 

   [44] Chong sentencing remarks [75].

8. The sentencing judge accepted that Mr Chong's role was largely that of an assistant to Mr Tan. Mr Chong was trusted to work with the person who was effectively in charge of the Perth operation.[45]

   [45] Chong sentencing remarks [76].

9. Mr Chong was 26 years old at the time of sentence.  He was in a relationship prior to coming to Australia, which had ended by the time of sentencing.  He was the youngest of three children, whose parents separated when he was in kindergarten and he had little involvement with his father since that time.  He attended school in Malaysia, but left sometime during the first year of high school and worked in a number of jobs before starting work as an electrician.  He had no prior criminal record, and was remorseful for his offending.[46]

   [46] Chong sentencing remarks [100] - [102], [107], [109].

10. There were personal factors relevant to Mr Chong which it is unnecessary to address in these reasons, but which led to a reduction in his sentence of 25%.

Mr Chin

1. Mr Chin pleaded guilty to possession of a commercial quantity of a border controlled drug, namely, methamphetamine, that was reasonably suspected of having been unlawfully imported, contrary to s 307.8 of the Criminal Code (Cth). The maximum penalty for that offence was the same as for the offence of which the appellant was convicted. It related to the approximately 51 kg of methamphetamine (40 kg in pure form) located during the search of the Embleton address where Chin resided, at a time when he was present. The total value of those drugs if sold on the street was estimated to be $4,814,400 - $10,030,000 if sold by the kilogram, or $5,653,727 - $21,201,477 if sold by the ounce.

2. Mr Chin came to Australia on 20 October 2015, arriving at Coolangatta Airport and entering on a tourist visa.  He travelled to Sydney, where he opened a bank account, before travelling to Perth in November 2015.  He entered into a tenancy agreement for the Embleton house, where he lived until 23 May 2016.[47]

   [47] R v Chin [2017] WASCSR 61 (Chin sentencing remarks) [6] - [8].

3. Mr Chin was providing a warehouse for the drugs in the suitcases.  He also had other responsibilities concerning a bank account and directing where money should be deposited.  He bought the suitcases in which drugs were stored and made them available to be collected.  On being instructed to do so, he checked that the packaging of the drugs was not damaged.  While he was supervised, the syndicate members placed considerable trust in Mr Chin.  However, he was not involved in the actual importation of the drugs or management of that enterprise, or in the sale or further supply of the drugs.[48]

   [48] Chin sentencing remarks [23], [46], [48].

4. Mr Chin was 34 years old at the time of sentence.  He was raised by his single mother and had no contact with his biological father.  After completing 3 years of high school, he did an apprenticeship as a tyre fitter which was the main sort of work he did in Malaysia.  He suffered an injury in a cycling accident in Malaysia, which put him out of work and caused him to leave tyre fitting.  He had accumulated considerable debts and his offending was motivated by financial gain.[49]

   [49] Chin sentencing remarks [63] - [66].

Sentencing judge's approach

1. The sentencing judge recognised that the appellant was part of a sophisticated, well-planned large commercial enterprise that stood to make enormous profits from the distribution of a very large quantity of methamphetamine within the Australian community, with the potential for enormous harm.  The objective nature of the importation placed it at the upper end on the scale of seriousness for such offending.[50]  Although the appellant and others were employees of the syndicate, they played a significant role to ensure the success of the operation.[51]

   [50] Sentencing remarks [51] - [54].

   [51] Sentencing remarks [55].

2. The sentencing judge recognised that, by its verdict, the jury was satisfied that the appellant entered into an agreement with at least one other person to import a border controlled drug into Australia, and did so before the drug was imported into Australia.[52]

   [52] Sentencing remarks [57].

3. The sentencing judge recognised that, while the quantity of the drug that was imported was not determinative of the seriousness of the offence, it was a relevant factor, particularly so when the quantity was very significant and was known to the appellant. The quantity of the drug in the present case was a significant factor in determining the objective seriousness of the offence and the appropriate sentence.  The quantity of pure methamphetamine was 194 times the amount that constitutes a commercial quantity, which is 750 g.  It was of a very high purity.   Although the purity of drugs sold on the street is variable, it was not known to what extent the bulk would have been increased for sale to end users.  Nevertheless, because of the quantity and purity of the drug, the offending was objectively a very serious case of importation of a border controlled drug, placing it at the upper end of seriousness for such offences.  The appellant was aware of the quantity of the drug being imported, if not in relation to specific weight, then at least in relation to the general understanding that it was a very substantial amount consistent with the scale and sophistication of the operation.[53]

   [53] Sentencing remarks [59] - [62].

4. The sentencing judge referred to the harmful effects of methamphetamine and recognised that general deterrence and adequate punishment were the primary considerations in determining the appropriate sentence for the appellant.[54]

   [54] Sentencing remarks [58].

5. The sentencing judge also made a comparative assessment of the roles of the offenders.[55]  He considered that:

   (1)Mr Law and Mr Luo were essentially on an equal footing.  Mr Luo was the skipper of the boat and was kept informed of the coordinates he needed to follow.  He was entrusted with the cargo.  Mr Law was, in effect, in charge of the crew and reported back to the organiser. 

   (2)Mr Tan was at the highest level of culpability of those in the shore party.  He was given the more complex logistical arrangements for which he had responsibility and what would appear to be the wider reach of his authority within the shore party.

   (3)Mr Wong's and Mr Yong's roles in the land-based team went beyond the collection of the drugs.  Both were involved in the preparation of the drugs for distribution, by repackaging the drugs and labelling the bags and suitcases.  Mr Yong physically performed those tasks, commencing with the removal of the original sealed bags from the black carry bags that were found in his bathroom.  Mr Wong had at least a supervisory role.  Both Mr Wong and Mr Yong had a degree of authority over the three younger men (including the appellant) living at the Thornlie address.   Their level of culpability was similar to Mr Law's.

   [55] Sentencing remarks [90] - [94].

6. In addressing the comparative roles and culpability of the appellant and Mr Ching, the sentencing judge said:[56]

   Mr Ching and Mr Tang, I am satisfied that despite the critical nature of your roles and the activities you carried out, your level of culpability should be regarded as less than for Mr Yong and Mr Wong.  I consider that you and Mr Chong were all equally culpable.  While Mr Ching and Mr Chong may have done more in the way of preparation by identifying an appropriate route, ultimately you all served similar roles, and you all shared the same satisfaction in what you considered to be a job well done after the drugs were collected and brought back to the metropolitan area.  That satisfaction was captured in the video of the three of you celebrating.

   But for the fact that you were involved in the importation of a larger quantity of drug than the quantity found in [Mr Chin's] possession, I would have regarded you, Mr Ching and Mr Tang, to be at a similar level of culpability as him.  That would have been so, even though it may be thought that your roles were more critical in enabling the drugs to come to shore.  However, I consider that your criminality is greater because of the significantly larger quantity of drug which you took part in importing. 

   [56] Sentencing remarks [121].

7. In relation to the hardship which the appellant and those being sentenced with him would experience in prison, the sentencing judge observed:[57]

   I accept in relation to all of you that the period of incarceration will be harsher for you than for an ordinary offender because of your personal circumstances, in particular that you do not have family or friends who could visit you, and for those of you who have family in your home country, you will no doubt be affected by the impact your incarceration in a foreign country will have on them.  However, while that is recognised, the value that can be given to it to mitigate the sentence must be tempered in the sentencing process because each of you made a conscious decision to come to Australia for the purpose of the commercial importation of drugs.  Each of you took the risk that such offending entailed. 

   [57] Sentencing remarks [163].

8. The sentencing judge referred to comparative sentences imposed for similar offending in other cases.  In the course of doing so, the sentencing judge observed:[58]

   I do not consider that the offending of any of you is in the worst category of cases that would justify the imposition of life imprisonment.  However, as I have already noted, the offending is at the upper end and the sentences will reflect that. 

   [58] Sentencing remarks [168].

9. His Honour had regard to the comparative sentencing cases and the sentence he had imposed on Mr Chin, recognising that he was in possession of a significantly lesser amount of the drug and received a substantial discount for his plea of guilty.

10. Before imposing the sentences referred to above, the sentencing judge observed in relation to the appellant and the other offenders being sentenced with the appellant:[59]

    As I have said, general deterrence looms large as a sentencing consideration in this case.  It is clear from the level of planning, organisation and resources employed that the importation involved a sophisticated criminal business enterprise.  The suppression of the illicit drug trade is the clear legislative intent behind the significant penalties for this type of offending and the sentences I impose need to reflect that. 

    I accept that personal deterrence is not a significant sentencing consideration in respect of any of you, particularly as the sentences I must impose, in any event, would mean that it would be unlikely you would ever offend in a similar way again, even if you were of an age to physically be able to do so. 

    [As] I said earlier, you will receive some mitigation for your prior good characters, although the charge and circumstances mean that such mitigation will be limited in nature.

    [59] Sentencing remarks [173] - [175].

Ground 1: 'Factual' error

1. Ground 1 contends that the sentencing judge erred in fact in categorising the criminality of the appellant as being at the same level as that of Mr Chong.

2. The appellant submits that the sentencing judge acknowledged that 'in some respects' Mr Chong's activities were more extensive than those performed by the appellant.  The appellant submits that, where an offender undertakes more criminal activities in pursuit of an offence, including in relation to the planning of an offence, greater criminality is necessarily involved.[60]  The appellant submits that Mr Chong undertook a lot more activities for the criminal enterprise than the appellant, and was the assistant to Mr Tan (who was supervising the operation), from which it could be inferred that Mr Chong had a greater knowledge of the operation.[61]

   [60] Appellant's submissions, par 55 - 56.

   [61] Appeal ts 4 - 5, 8, 9.

3. The ground of appeal and the submissions in support of it do not actually challenge any of the sentencing judge's factual findings as to what either the appellant or Mr Chong did in pursuit of the criminal enterprise.  Rather, what is challenged is the sentencing judge's assessment of the comparative levels of criminality involved in the conduct of the appellant and Mr Chong.

4. We are not persuaded that there was any error in the sentencing judge's assessment in that respect.  Both the appellant and Mr Chong arrived in Australia in early 2016 for the purpose of engaging in the criminal enterprise.  Both purchased vehicles for that purpose.  Neither had a supervisory role in the syndicate.  Although the sentencing judge did not make an express finding that the appellant was involved in the reconnaissance of the landing site, in the sentencing proceedings the appellant's counsel accepted that he had done so on five or six occasions.[62]  Both attended the landing site to collect the drugs from the tender, and were involved in the transport of the drugs back to the Perth metropolitan area.  They were both, on the sentencing judge's unchallenged factual findings, at the 'frontline of the activities necessary to ensure that the importation of the drug would be successful'.[63]  They were 'part of a team, entrusted with important information about the delivery and entrusted to take possession of the product'.[64]  While there were differences in the detail of the acts of the two men established by the evidence (such as Mr Chong being one of the men who returned to the landing site to collect the 15^th bag of methamphetamine without the appellant), those differences were not, in our view, material to the assessment of the overall criminality involved in the offending.

   [62] Trial ts 3697

   [63] Sentencing remarks [121].

   [64] Sentencing remarks [95].

5. In our view, ground 1 is not reasonably arguable.  We would refuse leave to appeal in respect of that ground.

Ground 2: Parity

1. Ground 2 contends, in essence, that the appellant has been left with a justifiable sense of grievance due to the disparity, the lack of difference and the lack of sufficient difference with the sentences of his co-offenders.

2. The appellant submits that he has a justifiable sense of grievance due to:

   (1)Mr Chin receiving a significantly lower sentence;

   (2)Mr Chong receiving a significantly lower sentence and non-parole period than the appellant despite the greater criminality involved in his offending;

   (3)Mr Ching and Mr Luo receiving the same sentence as the appellant, who had a lower level of criminality than them; and

   (4)The lack of sufficient disparity with the sentences of Mr Yong, Mr Wong and Mr Law who had a much greater level of criminality than the appellant.

   While not abandoning any of the above points, the appellant submits that the issue of parity is most marked in the lack of sufficient disparity between those with a supervisory role in the operation and those being supervised.[65]

General principles

[65] Appeal ts 13 - 15.

1. The operation of the parity principle was described, in the context of federal drug offending, by Buss P, with whom Mazza JA agreed, in Ngo v The Queen:[66]

   [66] Ngo v The Queen [2017] WASCA 3 [36] - [40].

   The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders.  The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.  The applicable test is objective not subjective.  The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.

   An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge.  But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.

   In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ said:

   (a)the parity principle is based upon the norm of 'equality before the law' [28];

   (b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and

   (c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].

   Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].

   It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge.  Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge.

   (Some citations omitted)

Disposition

1. In the present cases, all of the relevant offenders were sentenced by the same sentencing judge, who was conscious of the parity principle and gave attention to the relative criminality involved in each offender's offending.  We do not accept that the disparity or lack of disparity between the sentences received by the co-offenders gave rise to any objectively justifiable sense of grievance on the appellant's part.

2. Mr Chin received a sentence which was considerably lower than the appellant.  However, he was charged with a different offence, which involved possession of only part of the methamphetamine which the appellant and others had imported.  Significantly, he pleaded guilty to the offence, for which he was appropriately given a significant sentencing discount. 

3. Mr Chong also received a lower sentence than the appellant, despite having a similar role in the criminal enterprise. He would have received the same sentence as the appellant but for the personal matters referred to at [74] above. Those personal factors, which do not apply to the appellant, explain the difference between the sentences received by the two men.

4. Mr Ching received the same sentence as the appellant.  We see no basis for materially distinguishing the roles of the appellant and Mr Ching in the commission of the offence, or the level of criminality involved in their offending. 

5. Mr Luo also received the same sentence as the appellant. His role in the offending, in skippering the fishing vessel and having some supervisory role in relation to its crew, was greater than that of the appellant. However, the lack of disparity between his sentence and that of the appellant is explained by the personal factors referred to at [64] above. But for those factors, which did not apply to the appellant, Mr Luo would have received the same sentences as Mr Wong and Mr Yong, and the same head sentence as Mr Law.

6. Mr Law, Mr Wong and Mr Yong each received a head sentence three years greater than the appellant.  Wong and Yong received a non-parole period two years longer than the appellant.  Mr Law's non-parole period was one year less than Mr Wong and Mr Yong's by reason of his health issues.  Each of these offenders supervised some of the co-offenders, and were more involved in the planning of the operation, which justified higher sentences for them.  However, the offenders were all knowingly engaged in the same enterprise and all were effectively employees of the criminal syndicate.  There was no finding that any of them would have a share of the profits of the venture.  We are not satisfied that the lack of a greater difference between the sentences imposed on Mr Law, Mr Wong or Mr Yong and the sentence imposed on the appellant gives rise to any objectively justifiable sense of grievance.

7. In our view, the trial judge appropriately distinguished between the roles of the offenders based on his Honour's factual findings as to their role in the offending and the overall criminality involved in their respective offending having regard to all of the circumstances of the case (including those personal to the offenders).  In our view, ground 2 is not reasonably arguable, and leave to appeal should be refused on that ground.

Ground 3: Manifest Excess

1. Ground 3 contends that the appellant's sentence and minimum term are manifestly excessive having regard to the circumstances of his offending, his personal circumstances and sentencing standards.

General principles

1. The general principles governing appeals contending that a sentence is manifestly excessive are well established:

   (1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error.  It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

   (2)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.  The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.

   (3)The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

   (4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

   (5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

2. In considering the standards of sentencing customarily observed with respect to a federal offence, it is necessary for this court to have regard to the relevant range of sentences established across all Australian States and Territories for offending of that type.  In R v Pham, the Victorian Court of Appeal had perceived that sentences imposed in New South Wales, Queensland and Western Australia were substantially greater than sentences imposed in Victoria for offences involving similar quantities of drugs.  The High Court held that it was an error to approach sentencing on the basis that the offender was entitled to expect that he would be sentenced in accordance with current sentencing practices in Victoria as opposed to the relevant range of sentences established across all States and Territories.  The court held:[67]

   [T]he point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.

   It does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of sentencing discretion.  … [T]he sentencing task is inherently and inevitably more complex than that.  But it does mean that to prefer one State's sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair. (citations omitted)

   [67] Pham [26] - [27] per French CJ, Keane and Nettle JJ, Bell and Gageler JJ agreeing at [41].

3. After re-emphasising certain aspects of the proper approach to the assessment of sentences in other cases,[68] the court observed:[69]

   It is settled that, in the absence of binding authority from this Court, an intermediate appellate court must follow a statement of legal principle by another intermediate appellate court unless persuaded that it is plainly wrong.  It is also settled that a 'sentence itself gives rise to no binding precedent'.  Where however, decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as 'yardsticks' that may serve to illustrate (although not define) the possible range of sentences available.  A court must have regard to such a decision in this way unless there is a compelling reason not to do so, which might include where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant, or where the court is persuaded that the outcome itself in the other court was manifestly excessive or inadequate.

Maximum penalty

[68] Pham [28].

[69] Pham [29].

1. As noted above, the maximum penalty for an offence against s 307.1(1) of the Criminal Code was life imprisonment or a fine of $1,350,000, or both.

Applicable sentencing principles and customary sentencing standards

1. The general sentencing principles applicable to federal offences are set out in div 2 of pt 1B of the Crimes Act 1914 (Cth). See Hili v The Queen.[70]

   [70] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

2. Section 16A(1) of the Crimes Act provides that, in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. 

3. By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court.

4. In Hili, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that s 16A of the Crimes Act accommodates the application of common law sentencing principles because those principles give relevant content to the words in s 16A(1) 'of a severity appropriate in all the circumstances of the offence', and to the words in s 16A(2)(k) 'the need to ensure that the person is adequately punished for the offence'.[71] Accordingly, concepts such as personal and general deterrence and other common law sentencing principles are accommodated in s 16A, even though they are not specifically referred to. However, s 16A does not permit generalisations to be made across all forms of federal offences about how individual sentences are to be fixed.[72]

   [71] Hili [25].

   [72] Hili [25].

5. The majority in Hili also noted that in dealing with appeals against sentences passed on federal offenders, it is necessary for there to be consistency of decisions throughout Australia.  That consistency is to be achieved through the work of intermediate appellate courts.  An intermediate appellate court should not depart from an interpretation of Commonwealth legislation by another intermediate appellate court, unless convinced that that interpretation is plainly wrong.  Similarly, an intermediate appellate court should not depart from what is decided by another intermediate appellate court in considering the sufficiency of sentences passed on federal offenders at first instance, unless convinced that the decision is plainly wrong.[73] 

   [73] Hili [57].

6. As this court observed in Samardali v The Queen:[74]

   When sentencing a Federal offender, a court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence: s 16A(1) of the Crimes Act. A court must consider the factors set out in s 16A(2) of the Crimes Act if those matters are relevant and known to the court, although the list of factors is not exhaustive.  Other common law principles of sentencing, including totality, apply in order to determine a sentence of a severity appropriate in all of the circumstances of the case. (citation omitted)

   [74] Samardali v The Queen [2018] WASCA 220 [61].

7. The principles applicable to fixing a non-parole period for federal offences were considered in R v Abbas.[75]  In particular, it may be noted that:

   (1)The non-parole period is the minimum period of imprisonment that justice requires the offender to serve.  It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period.

   (2)The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender.

   (3)The factors which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence.  However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function.  Sentencing factors which count against mitigation may increase the length of the head sentence and also the proportion that the non-parole period bears to the head sentence.  The converse applies to sentencing factors in favour of mitigation.  Any necessary deterrent and punitive effects of sentences for a particular offence must be reflected both in the head sentence and also in the non-parole period.

   (4)There is no judicially determined norm or starting point (whether as a percentage of the head sentence or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on parole. 

   [75] R v Abbas [2019] WASCA 64 [117] - [124].

1. Well‑known sentencing considerations for drug offences were outlined by Buss JA in R v Ng:[76]

   The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence.  The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance.  Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain.  The degree of purity is often regarded as significant.  Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. 

   [76] See R v Ng [2012] WASCA 180 [34].

2. The parties have referred to a number of appellate decisions involving sentencing for Commonwealth drug offences involving amounts well in excess of the threshold of a commercial quantity.  The most relevant are summarised below.

3. In Barbaro v The Queen,[77] the offenders were convicted, on their pleas of guilty, of three counts of serious drug offences:

   (1)Conspiracy to commit an offence of trafficking a commercial quantity of a controlled drug, which related to more than 15 million tablets containing MDMA (or ecstasy) imported into Australia from Europe, but seized before the offenders could take possession of them.  The tablets contained more than 1.4 tonnes of pure MDMA and had a wholesale value of about $122 million. The offenders had proposed to be involved in the trafficking of all of the tablets.

   (2)Trafficking a commercial quantity of a controlled drug, which related to a further 1.2 million MDMA tablets received from the same European suppliers.  The tablets came in two batches and were trafficked.  The second batch contained more than 50 kg of pure MDMA and one of the offenders had received more than $7.25 million from selling tablets from that batch.

   (3)Attempting to possess a commercial quantity of an unlawfully imported border controlled drug, which related to 100 kg (pure weight) of cocaine that had cost about $600,000 but was worth about $40 million.  The cocaine was intercepted soon after it was imported and before the offenders could take possession of the drug.

   Two of the offenders were described as the person at the apex of the criminal group operating in Australia and his trusted lieutenant.  They were respectively sentenced to life imprisonment with a 30 year non-parole period, and 26 years' imprisonment with an 18 year non-parole period.  The offenders' appeals (including on manifest excess grounds in the Victorian Court of Appeal) were dismissed by the Court of Appeal and the High Court.

   [77] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 and Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354.

4. The offending in Barbaro was clearly more serious than that of the offending in the present case.  However, the sentences imposed for that offending were longer, despite the significant mitigating factor of the pleas of guilty. 

5. In Wangsaimas v The Queen,[78] the Northern Territory Court of Criminal Appeal resentenced three offenders involved in the importation of 89.1 kg of pure heroin, with a street value of $300 million.  One of the offenders captained the vessel on which the drugs were transported into Australia, while the other two offenders travelled as crew with responsibility for organising the delivery of the drugs to the distributors.  The court imposed life sentences with non-parole periods of 22 years for the captain and 25 years for the two crew.  An appeal from that decision to the High Court, which turned on a question of construction of the Crimes Act, was dismissed.[79]

   [78] Wangsaimas v The Queen (1996) 6 NTLR 14.

   [79] Vanit v The Queen (1997) 190 CLR 78.

6. In R v Flavel, R v Gonzales-Betes and R v Campillo-Vaquere,[80] the New South Wales Court of Criminal Appeal dealt with offenders convicted of importing 172.2 kg (pure weight) of cocaine with a street value of $40 - 50 million.  The offenders agreed to transport the drugs in a yacht knowing the potential reward was $400,000.  They were convicted after trial and received sentences of life imprisonment with non-parole periods of between 22 and 25 years.  The offenders' appeals against their sentences were dismissed.

   [80] R v Flavel [2001] NSWCCA 227; R v Gonzales-Betes [2001] NSWCCA 226; R v Campillo-Vaquere [2004] NSWCA 271.

7. In R v Reaves,[81] the offender entered a plea of guilty at the earliest reasonable opportunity to one count of importing 707.1 kg (pure quantity) of cocaine, with a street value of between $104 million and $400 million.  He arranged for the purchase of a vessel to transport the drugs into Australia and sailed the vessel to Australia, collecting about 1,000 kg of material containing cocaine mid-ocean.  He was paid $300,000 for his role in the offending.  The 59 year old offender had a poor prior criminal record, which included drug trafficking offences in the United States.  The offending breached his parole and, on completion of his sentence, the offender was likely to be extradited to the United States to complete his sentence.  On a Crown appeal against sentence, the Court of Criminal Appeal imposed a sentence of life imprisonment with a non-parole period of 18 years.

   [81] R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26.

8. In Reaves, a co-offender whose role was to watch over the cocaine when it was on the importing vessel and deliver it to Australia, was sentenced to life imprisonment with a 20 year non-parole period.  A Crown appeal against the non-parole period was dismissed in R v Suarez-Mejia.[82]  Like Reaves, Suarez-Mejia pleaded guilty, and had a poor prior record which included drug trafficking offences.  He was to be paid $200,000 for his role in the enterprise.  The non-parole period, 'while at the lenient end of an appropriate range, if not at its lowest extremity',[83] was held not to be manifestly inadequate.

   [82] R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577.

   [83] Suarez-Mejia [68].

9. In Sevilla v The Queen,[84] the offender pleaded guilty to one count of aiding the importation of a commercial quantity of cocaine,[85] and one count of attempting to possess a commercial quantity of cocaine.[86]  The offender entered Australia for the purpose of supervising the safe shipment of a quantity of cocaine then bound for Australia to the port of Albany on a vessel.  The cocaine was in the form of 100 blocks of powder with an average purity of 77.8 per cent.  There was a total of 100.6 kilograms of cocaine powder and the total quantity of pure cocaine was 78.319 kilograms.  Once the offender was in Australia he adopted a supervisory or managerial role over the importation and organised the collection of the bags.  However, in the interim the police had removed the cocaine from the bags and replaced it with an inert substance.  The offender made all the arrangements and was in communication with all of the persons necessary to successfully complete the importation.  The importation was sophisticated and well organised.  The cocaine had a street value of some $70 million.  Leave to appeal against his sentence of life imprisonment with a 21 year non-parole period was refused.

   [84] Sevilla v The Queen [2007] WASCA 116.

   [85] s 233B(1)(b) Customs Act 1901 (Cth).

   [86] s 233B(1)(c) of the Customs Act.

10. In a related appeal by Mr Sevilla's co-offender, Sukkar v The Queen,[87] the offender pleaded guilty, on the second day of his second trial.  He assisted Mr Sevilla to oversee the importation of the cocaine referred to above.  The offender took various steps to assist in the enterprise, which planned to take possession of the drugs which were hidden on a vessel that docked in Albany.  The offender did not intend to take part in the distribution of the drugs.  He was sentenced to 21 years' imprisonment with a non-parole period of 13 years.  Wheeler JA dismissed the application for leave to appeal on grounds which included manifest excess.  Her Honour's decision was affirmed on review.[88]

    [87] Sukkar v The Queen [2007] WASCA 166.

    [88] Sukkar v The Queen (No 2) [2008] WASCA 2; (2008) 178 A Crim R 433.

11. In the above two cases, Mr Sevilla's criminality was greater than that of the appellant in the present case, but he received a significantly greater sentence.  Mr Sukkar's criminality was broadly similar to the appellant's, and his sentence was broadly comparable having regard to Mr Sukkar's late plea of guilty.

12. In Bembo v The Queen,[89] the Victorian Court of Appeal relevantly dealt with an appeal against sentence by an offender who had been convicted of the following offences after trial:

    (1)Attempting to possess about 4 kg of heroin, for which he was sentenced to 14 years' imprisonment.

    (2)Conspiracy to import 4 kg of methamphetamine, for which he was sentenced to 13 years' imprisonment, as part of a total effective sentence of 14 years' imprisonment for that and State dishonesty offences.

    (3)Attempting to possess about 126 kg of methamphetamine, for which he was sentenced to 19 years' imprisonment.

    The total effective sentence for this offending and State dishonesty offences was 35 years' imprisonment, with a non-parole period of 25 years.  He appealed against the first and third Commonwealth sentences on totality grounds.  He conceded that none of the individual sentences the subject of the appeal were manifestly excessive. 

    [89] Bembo v The Queen [2019] VSCA 308.

13. The offending in Bembo involved three separate episodes of importation, and, over a period of some two and a half years, attempts to procure commercial quantities of drugs.  The appellant attempted to organise the importations, albeit unsuccessfully.  The offender was 40 years old, had a poor criminal record and was raised in traumatic conditions in the Congo.  The applications for leave to appeal against sentence were refused.

14. In Heng v The Queen,[90] the NSW Court of Criminal Appeal dealt with an offender who was charged with importing 73.8 kg (pure weight) of methamphetamine smuggled in flat packed furniture.  The offender, who was on parole for a drug supply offence at the time of the importation, entered a late plea of guilty.  He was a significant organiser of the activities in Australia acting on instructions from overseas.  His appeal against a sentence of 23 years 9 months' imprisonment with a non-parole period of 15 years and 9 months was dismissed.

    [90] Heng v The Queen [2019] NSWCCA 317.

15. In R v Le,[91] the Queensland Court of Appeal was concerned with an appeal against sentence for conspiracy to import and traffic a commercial quantity of methamphetamine, and dealing in proceeds of crime.  A sentence of 20 years' imprisonment was imposed for the conspiracy to import methamphetamine, with concurrent sentences being received on other charges.  A 14 year non-parole period was fixed.  The 43 year old offender, who had no relevant past convictions, was convicted after trial.  He was at the top of a drug importation syndicate.  The Crown alleged that more than 90 kg of drugs were imported pursuant to the conspiracy.  The sentencing judge in that case did not make any finding as to the amount imported, but accepted that it was a very large quantity.  At least $219,700 of drugs had been sold pursuant to the conspiracy to traffic.  Leave to appeal against sentence on manifest excess grounds was refused.

    [91] R v Le [2019] QCA 200.

16. In Kuo v The Queen,[92] the NSW Court of Criminal Appeal came to resentence three offenders for attempting to possess an unlawfully imported substance, namely 142 kg (pure weight) of methamphetamine.  The drugs had been imported from China hidden in kayaks shipped in a sea container.  The principal organiser of the operation in Australia avoided apprehension.  A female co-offender, who undertook a significant amount of organising, was sentenced after trial and received a sentence of 21 years' imprisonment as part of a total effective sentence of 23 years' imprisonment with a non-parole period of 15 years for that and other offending.

    [92] Kuo v The Queen [2018] NSWCCA 270.

17. The court in Kuo resentenced the three male offenders who had come to Australia from Taiwan for the purpose of the offending, after finding that the trial judge failed to properly take account of the utilitarian benefits of their guilty pleas.  One of the offenders, Shih, whose role was assessed to be similar to the female co-offender's, was sentenced to 22 years' imprisonment with a 14 year non-parole period.  The other two offenders, who were in subordinate roles, each received sentences of 19 years' imprisonment with a non-parole period of 12 years.  Those sentences were influenced by parity considerations referrable to the sentence imposed on the female co-offender.

18. In resentencing the appellants in Kuo to terms of imprisonment that were markedly lower than those imposed by the sentencing judge, the NSW court said:[93]

    It needs to be remembered that Kuo was not a principal, albeit an important member of the drug importation syndicate.  The danger in a matter of this kind is that the sentencing judge, to some extent, can be overwhelmed by the sheer quantity of the drug sought to be imported.

    The court then quoted the observations of the High Court in Wong v The Queen.[94]  Later, the NSW Court of Criminal Appeal observed:[95]

    This case provides a good example of why a sentencing court (including an appellate court called upon to re-sentence) is better to focus on what a drug offender actually did than to attempt to make findings as to their relative roles in a hierarchy or the precise position within a hierarchy. Because drug syndicates do not operate transparently, the “rank” of a drug offender within the criminal organisation may be more a matter of speculation than a process of rational drawing of inferences.

    The court then quoted from the observations of the High Court in R v Olbrich.[96]

    [93] Kuo [97].

    [94] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [72] - [73].

    [95] Kuo [118].

    [96] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [19].

19. The amount of methamphetamine dealt with in Kuo was similar to that involved in the present case.  The role of Shih in Kuo appears broadly similar to that of Yong and Wong in the present case, while those of the other offenders in Kuo appears broadly similar to that of Ching, Chong and the appellant.  They received lower sentences than the offenders in the present case, but had the mitigation of pleas of guilty.  The court indicated that Mr Kuo's plea of guilty justified a 10 - 15% discount in his sentence.[97]  We note that, if the appellant's sentence of 23 years' imprisonment was reduced by 15%, the result would be a sentence of 19.5 years as compared to the 19 year sentence received by Mr Kuo.

    [97] Kuo [90].

20. In Director of Public Prosecutions (Cth) v Brown,[98] the offender was convicted after trial of two counts of importing a commercial quantity of methamphetamine.  The first count involved 3.4 kg of pure methamphetamine, the second 44.7 kg.  The offender's role was to collect imported engines, dismantle them to obtain the drugs, store the drugs and deliver them to the purchaser.  The street value of the drugs was between $45.3 million and $60.4 million.  The 31 year old offender had no prior convictions and, while there was no evidence as to what financial gain he stood to make, it could be inferred to be significant.  A total effective sentence of 12 years' imprisonment with a non-parole period of 7 years was imposed at first instance.  That sentence was held to be manifestly inadequate, and was increased on a Crown appeal to a total effective sentence of 20 years' imprisonment with a 15 year non-parole period.

    [98] Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162; (2017) 268 A Crim R 309.

21. In R v Scott,[99] the offender was convicted on his plea of guilty of importing 59.47 kg of methamphetamine of 80.3% purity (or about 47.8 kg pure weight).  The 45 year old offender had serious health issues from prolonged methamphetamine addiction, and had imported the drugs to attempt to provide for his family.  He had placed the drugs in a container in Indonesia that was shipped to Australia and delivered to his business.  The offender received a sentence of 14 years 5 months' imprisonment (reduced by 20% from a starting point of 18 years' imprisonment).  That sentence was imposed as part of a total effective sentence of 19 years' imprisonment for that and other drug offences (involving the importation of 1,394 pseudoephedrine tablets and possession of about 20 pounds of cannabis with hydroponic equipment).  The non-parole period was fixed at 10 years 8 months.  The court dismissed an appeal against that sentence on manifest excess grounds, describing the non-parole period as 'merciful'.

    [99] R v Scott [2017] SASCFC 96.

22. While the sentences imposed in Brown and Scott were less than those imposed on the appellant (even allowing for the effect of the plea of guilty in Scott), the quantities of drugs involved in those cases were significantly less than in the present case. 

23. The appellant referred to, and placed particular emphasis upon,[100] two decisions of the Victorian Court of Appeal in Higgs v The Queen[101] and Karam v The Queen.[102]  In these cases, the offenders were convicted after trial of conspiring to possess 15 million tablets of MDMA weighing 4.4 tonnes (1.4 tonnes pure weight) imported into Australia via container.  The wholesale value of the shipment was estimated to be approximately $122 million.  This was the one of the importation operations considered in Barbaro, although these offenders played a lesser role in the offending.  Karam, who had previously worked in customs clearance and freight forwarding, used his contacts and expertise in the freight industry to provide information to his co-conspirators which would enable them to track the passage of the shipment through the docks, and ultimately obtain possession of it.  Higgs' role was to obtain information from Karam and pass it on to other co-conspirators.  Higgs was sentenced to 18 years' imprisonment with a non-parole period of 14 years, while Karam was sentenced to 19 years' imprisonment with a non-parole period of 15 years.  Only Karam's appeal against sentence advanced a manifest excess ground.  Both appeals were dismissed, without any detailed review of the sentenced imposed in other cases.

    [100] Appeal ts 16 - 17.

    [101] Higgs v The Queen [2015] VSCA 223.

    [102] Karam v The Queen [2015] VSCA 50.

24. The quantity and value of drugs involved in Higgs and Karam were greater than the present case, although the role of the offenders in the operation appears to have been more limited than the appellant's role in the present case.

25. In Shakhanov v The Queen,[103] the offender was convicted on his plea of guilty of attempting to possess 107 kg of methamphetamine (pure weight) reasonably suspected of having been unlawfully imported.  He was one of a group of offenders involved in an attempt to import about 210 kg of methamphetamine (pure weight) into Australia.  The drugs had been imported in a sea container and substituted for an inert substance after being detected by authorities.  Shakhanov was found transporting part of the inert substance. 

    [103] Shakhanov v The Queen [2019] VSCA 38.

26. One of Shakhanov's co-offenders, whose criminality was greater, received a sentence of 10 years' imprisonment with a 7 year non-parole period.  In the Victorian Court of Appeal, it was observed that, given matters including the enormous scale of the attempted importation, the co-offender's sentence appeared to be lenient.  However, it was noted that there was no appeal against the co-offender's sentence by the Commonwealth Director of Public Prosecutions on the grounds of manifest inadequacy.[104] 

    [104] Shakhanov [44].

1. Shakhanov appealed, and his initial sentence of 9 years' imprisonment with a non-parole period of 6 years was reduced to 8 years' imprisonment with a non-parole period of 5 years on parity grounds.  The court observed that while 'more lenient than may otherwise be the case, it is nevertheless an adequate sentence in all the circumstances'.  The court declared that, had Shakhanov not pleaded guilty to the offence and was found guilty, the sentence would have been 11 years' imprisonment with a non-parole period of 8 years.

2. Shakhanov involved offending broadly comparable to the present case in terms of the quantity of drugs involved and the role of the offender in the offending.  The sentence was much lower than that imposed on the appellant in the present case, even allowing for Shakhanov's plea of guilty.  However, it is relevant to note that the appeal was on parity grounds, by reference to a co-offender's sentence which was described as lenient.  In any event, the sentence imposed in this case appears to be an outlier, having regard to those imposed in the other cases noted above and referred to by the parties.  In our view, sentences of the general level imposed in Shakhanov would be manifestly inadequate if they had been applied to the present cases.

3. The appellant also refers to the decision of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Aisbett.[105]  In that case, the court dismissed a Crown appeal against sentences of 6 years' imprisonment for two offenders who were convicted of attempting to possess a prohibited import.  Five million tablets of MDMA, with a pure weight of about 500 kg, were imported in a sea container.  The offenders did not know the precise quantity of drugs involved, but were paid to unpack pallets of tiles and load the tablets onto a van.  They were to be paid for the work and would not share in the profits.  The offenders, who were aged 40 and 56 years and who had prior criminal records, were convicted after trial.

   [105] Director of Public Prosecutions (Cth) v Aisbett [2009] VSCA 172.

4. This case is readily distinguishable by reason of the offenders' very fleeting and limited role in the importation.  A sentence in the order of 6 years' imprisonment would plainly be manifestly inadequate in the circumstances of the present case.  However, the decision in Aisbett does illustrate the need to focus on what the offenders have done rather than merely the quantity of drugs involved.

5. We have also had regard to the facts and circumstances and the sentencing dispositions in Director of Public Prosecutions (Cth) v Wang;[106] Parker v The Queen;[107] and Jackson v The Queen.[108]

   [106] Director of Public Prosecutions (Cth) v Wang [2019] VSCA 250; (2019) 279 A Crim R 491.

   [107] Parker v The Queen [2020] NSWCCA 206.

   [108] Jackson v The Queen [2020] NSWCCA 230.

6. There are a number of similar and distinguishing features of the present case compared to those reviewed above.  Having regard to the similarities and differences in the offending and offenders, the sentences imposed on the appellant and his co-offenders appear broadly consistent with the overall sentencing pattern revealed by those cases.

Seriousness of offending

1. The appellant was at the bottom of the organisational hierarchy of the drug syndicate engaged in the importation.  He did not have a supervisory role and appears to have been a worker following instructions.

2. However, the appellant's involvement was not fleeting or unconsidered.  He travelled to Australia for the sole purpose of participating in the importation, and spent about 3 months here engaged in preparation for it.  He was knowingly a part of the team engaged in a very sophisticated and well-resourced criminal operation.  He took preparatory steps such as purchasing the vehicle to be used in the operation, and drove to the landing site to collect the drugs.

3. A significant aggravating feature of the offending was the quantity of drugs involved.  At least 182.41 kg (145.6 kg pure weight) of methamphetamine, which is 194 times the 750 g threshold of a commercial quantity of methamphetamine, was imported.  Even if the appellant did not know the precise type, weight and purity of the drug being imported, he was aware that he was importing a very substantial amount consistent with the scale and sophistication of the operation.  Although the sentencing judge made no finding as to the appellant's remuneration, he was found to be motivated by financial gain.

4. The above review of sentencing decisions shows that it is not uncommon for sentences of life imprisonment to be imposed on offenders importing extremely large quantities of border controlled drugs.  The appellant's offending was not in the most serious category of offending which would justify a sentence of life imprisonment.  However, by virtue of the quantity of drugs involved, the appellant's knowledge of the goods being imported and the nature and duration of the appellant's involvement in the operation, his offending is towards the top of the range of seriousness of drug importation offences.

Personal circumstances

1. The appellant's personal circumstances are noted above.  There is nothing exceptional about those circumstances, recognising that personal circumstances are ordinarily a subsidiary (although not irrelevant) factor in sentencing for serious drug offences.

2. Significantly, the appellant did not have the benefit of a plea of guilty, which would properly have given rise to a significant sentencing discount in this case.

Disposition

1. We are satisfied, after taking into account and evaluating all relevant facts and circumstances (including the sentencing judge's findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court) in the context of:

   (a)the maximum penalty;

   (b)the seriousness of the offending;

   (c)the particular importance of general deterrence as a sentencing factor;

   (d)the general standards of sentencing revealed by prior cases with at least some features comparable to the appellant's offending; and

   (e)all matters of mitigation,

   that the sentence of 23 years' imprisonment was not unreasonable or plainly unjust.

2. Further, we are satisfied, after evaluating and weighing all relevant facts and circumstances (including his Honour's findings of fact) and all relevant principles relating to the fixing of a non‑parole period, in the context of:

   (a)the maximum penalty;

   (b)the seriousness of the offending;

   (c)the particular importance of general deterrence as a sentencing factor;

   (d)the general standards of sentencing revealed by prior cases with at least some features comparable to the appellant's offending; and

   (e)all matters of mitigation,

   that the minimum non‑parole period of 15 years was not unreasonable or plainly unjust. 

Orders

1. For the above reasons, we would make the following orders in the appeal:

   (1)Leave to appeal is refused on grounds 1 and 2.

   (2)Leave to appeal is granted on ground 3.

   (3)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MT
Research Orderly to the Honourable Justice Mitchell

24 NOVEMBER 2020