Tyler v R; R v Chalmers

[2007] NSWCCA 247

Reported Decision: 173 A Crim 458

New South Wales

Court of Criminal Appeal

CITATION:	Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247
HEARING DATE(S):	23 July 2007
JUDGMENT DATE:	15 August 2007
JUDGMENT OF:	Spigelman CJ at 1; Simpson J at 2; Harrison J at 149
DECISION:	Matter No 2007/570: (1) Leave to appeal granted, appeal allowed, sentence set aside; (2) Applicant sentenced to imprisonment for 7½ years, commencing on 9 May 2005 and expiring on 8 November 2012, with a non-parole period of 4½ years, expiring on 8 November 2009.; Matter No 2007/1431: (1) Crown appeal allowed, sentence set aside; (2) The respondent be sentenced to imprisonment for 12 years commencing on 21 July 2006 and expiring on 20 July 2018 with a non-parole period of eight years expiring on 20 July 2014.
CATCHWORDS:	TYLER: CRIMINAL LAW – SENTENCING – application for leave to appeal against sentence – conspiracy to import prohibited drug (cocaine) – plea of guilty – subjective circumstances – past assistance – prospects of rehabilitation – protective custody – whether sentence manifestly excessive – parity with co-offenders – applicant re-sentenced to establish parity with co-offender - CHALMERS: CRIMINAL LAW – SENTENCING – Crown appeal against sentence – conspiracy to import prohibited drug (cocaine) – plea of not guilty – supply prohibited drug (cocaine) – plea of guilty – subjective circumstances – role in conspiracy – criminality – general deterrence – protective custody – whether sentence manifestly inadequate – respondent re-sentenced and sentence increased
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code Act 1995 Customs Act 1901 Drug Misuse and Trafficking Act 1995 (NSW)
CASES CITED:	Cameron v The Queen [2002] HCA 6; 209 CLR 339 R v Adanguidi [2006] NSWCCA 404 R v Bernier (1998) 102 A Crim R 44 R v Fordham (1997) 98 A Crim 359 R v Khouzame [2005] NSWCCA 505 R v Lee [2007] NSWCCA 234 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 R v Olenik [2000] NSWCCA 90 R v Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 R v Sukkar [2006] NSWCCA 92 R v Tarrant [2007] NSWCCA 124 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v To [2007] NSWCCA 200 R v Wall [2002] NSWCCA 42 R v Willard [2001] NSWCCA 6 R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340 Savvas v The Queen [1995] HCA 29; 183 CLR 1 The Queen v De Simoni [1981] HCA 31; 147 CLR 282 The Queen v Olbrich [1999] HCA 54; 199 CLR 270
PARTIES:	Matter No 2007/570 Phillip Gordon Tyler (Applicant) Regina (Cth) (Respondent) Matter No 2007/1431 Regina (Cth) (Applicant) Ian Robert Chalmers (Respondent)
FILE NUMBER(S):	CCA 2007/570; CCA 2007/1431
COUNSEL:	Matter No 2007/570 K Chapple SC (Applicant) W J Abraham QC (Respondent) Matter No 2007/1431 W J Abraham QC (Applicant) H Dhanji (Respondent)
SOLICITORS:	Matter No 2007/570 Norwoods (Applicant) Commonwealth Director of Public Prosecutions (Respondent) Matter No 2007/1431 Commonwealth Director of Public Prosecutions (Applicant) Legal Aid Commission (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/1054; 06/11/0273
LOWER COURT JUDICIAL OFFICER:	Taylor DCJ; Berman DCJ
LOWER COURT DATE OF DECISION:	4 August 2007; 4 May 2007

2007/570
2007/1431

SPIGELMAN CJ
SIMPSON J
HARRISON J

15 AUGUST 2007

PHILLIP GORDON TYLER v REGINA

REGINA v IAN ROBERT CHALMERS

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 SIMPSON J: These two related proceedings arise out of the involvement of two offenders, Phillip Gordon Tyler and Ian Robert Chalmers, in a conspiracy to import into Australia cocaine in not less than the commercial quantity, contrary to s 233B(1)(a)(iii) of the Customs Act 1901 since repealed and replaced by Pt 9 of the Criminal Code Act 1995 (Cth) (“the Code”) and s 11.5(1) of the Code. The charge carries a maximum penalty of life imprisonment.

3 Tyler entered a plea of guilty to the charge. On 4 August 2006 Taylor DCJ sentenced him to imprisonment for nine years with a non-parole period of five and a half years. Tyler seeks leave to appeal against this sentence, asserting that it is manifestly excessive, and that the sentencing process was affected by error. He also complains of disparity between the sentences imposed upon these two co-offenders, and, having regard to their relative participation, between the sentence imposed upon him and that imposed upon a third conspirator, Ryan Chandler, who was sentenced by Walmsley DCJ on 14 December 2006, after a plea of guilty, to imprisonment for ten years with a non-parole period of six years.

4 Chalmers was convicted after trial by jury. On 4 May 2007 he was sentenced, by Berman DCJ, to imprisonment for five and a half years with a non-parole period of three and a half years. At the same time he was sentenced to a fixed term of imprisonment for 12 months on a count of supplying a prohibited drug (cocaine), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1995 (NSW), in respect of which he had entered a plea of guilty. The Crown appeals against the asserted leniency of the sentence imposed on the conspiracy charge.

The facts

5 The conspiracy originated some time late in 2004. Its principals were Michael Hurley, Shayne Hatfield and Lesley Mara. Also involved were Sean North, Ryan Chandler and Chris Duck. North is an Australian who was resident in South America. He was a long-term friend of Chalmers. He was in Australia from 24 December 2004. The facts that emerged suggest that, even if he was not a principal, North played a very significant managerial role in the enterprise.

6 The main players had been involved in an earlier importation, in October 2004, which they brought to successful completion. Neither Chalmers nor Tyler was involved in that exercise.

7 Another (purported) conspirator was a man identified in the evidence as “Tom”; “Tom” was in fact a police informer. He had been involved in the October importation, but then turned informer. By reason of information supplied to them by “Tom”, from as early as December 2004 police, both State and Federal, were aware of the conspiracy. They closely monitored the participants, both physically and electronically. A good deal of the evidence was derived from intercepted telephone conversations, and evidence derived from authorised listening devices, together with the observations of surveillance police.

8 Put shortly, the proposal was to import between 20 and 30 kilograms of cocaine from South America, on a passenger airline. The arrangement was that North and Hatfield would travel to Buenos Aires in March 2005 in order to obtain the cocaine. Two couriers (called “walkers”) would also travel to South America, each carrying $50,000 in US currency for the purchase of the drug. These were Tyler and Chandler.

9 The plan was that the walkers would return to Australia on a Qantas flight, one of them carrying the cocaine in his booked luggage. Ultimately, Tyler was selected for this task. Chandler returned without any drugs in his possession.

10 The brazenness of the arrangement is explained by the fact that, also involved in the conspiracy, were corrupt baggage handlers at Sydney Airport, who were to ensure the safe passage of the luggage through Customs. It was, therefore, important that the walker be booked on a flight at a time when those baggage handlers were on duty.

11 It was Chalmers who made the travel arrangements for Tyler. He did this through an acquaintance, Robert Nicol, who worked in the travel industry. Chalmers told Nicol that he wished to purchase a return ticket to South America and insisted (over Nicol’s advice that Qantas did not fly to South America) that it must be a Qantas flight. He then made other inquiries as to how that could be accomplished and had Nicol make the bookings. He also insisted that the return ticket must provide for travel on a flight that would land at Sydney Airport on 15 April 2005, the date then fixed for the importation. He told Nicol how this could be done.

12 Chalmers also arranged and paid for two domestic flights by North, to Coolangatta, for the purpose of his liaising with Hatfield in Byron Bay. The evidence in the trial included transcripts of many tape recorded conversations, either personal or by telephone. They show that Chalmers was in regular communication with North. North plainly confided in him. There appears to have been no evidence of his communicating directly with any other member of the conspiracy.

13 On 16 March 2005 North and Chandler flew to Buenos Aires. Chandler was carrying $US50,000. Two days later Tyler flew out, with a return ticket for 15 May, as arranged by Chalmers. He also was carrying $US50,000, and spending money of $AUD1000. Shortly before he left, Hatfield showed him a gun, saying “don’t be a naughty boy”. Presumably, this was intended as a caution to him not to withdraw from the arrangements or do anything to jeopardise the successful completion of the plan.

14 Tyler was to be in Buenos Aires for seven weeks. While there, from time to time he met North and Chandler. He experienced something of a relapse of a pre-existing drug and alcohol addiction, reaching the point that, on one occasion, he overdosed on cocaine and was hospitalised.

15 North, whose role it was to locate and purchase the cocaine, had difficulty doing so.

16 Late in March Australian newspapers reported that an Australian woman, Schapelle Corby, had been arrested in Indonesia and charged with drug offences. The reporting included speculation that the drugs found in her luggage might have been placed there by baggage handlers at Sydney Airport.

17 On 30 March North telephoned Chalmers and told him that he had decided to cancel the arrangement. Whether this was because of the exposure of possible involvement of baggage handlers is not clear. There was also evidence that he was unable locate to cocaine, at least in the quantities proposed. Other evidence suggests that he had not, in fact, cancelled the arrangement, but had postponed it. Chandler returned to Australia on 30 March. He was met at the airport by “Tom”, and reported to him what had been happening in Buenos Aires, particularly in relation to Tyler’s drug and alcohol use. A new date for the importation, 4 May, was, as it transpired, fixed. That, too, was cancelled and Tyler returned to Australia on that date without any cocaine in his possession.

18 On 9 May 2005 a Joint Task Force of Australian Federal and NSW police executed a large number of search warrants on various premises and arrested a number of men, including Tyler, Chalmers and Hatfield. Two days later Chandler was also arrested. Tyler was refused bail and has remained in custody since that date. Chalmers was granted bail, and was released pending trial.

19 On 12 May Tyler made what is called an “induced statement”. He gave a detailed account of his involvement in the conspiracy, to the following effect. He became involved through Duck, whom he knew from their joint involvement in Alcoholics Anonymous meetings. Through Duck Tyler met Hatfield and was invited to join the organisation. He was told that his involvement would be to travel overseas and move a bag 15 metres, for which he would be paid $30,000. Tyler assumed that the bag would contain cocaine. He declined to be involved.

20 Tyler resumed a relationship with a former girlfriend, Kylie, and the two recommenced the use of heroin. He spent some time in the rehabilitation unit of a hospital. There he learnt that Kylie was pregnant. He discussed Duck’s proposal with her, but, again, decided against becoming involved. However, on meeting Duck again, Tyler raised the subject again and Duck renewed the offer. Duck told him that, if he were interested, it would be necessary to make a quick decision, and that, if he did decide to be involved, he would meet some other people and once he had done that he could not change his mind.

21 Tyler continued to make inquiries. Duck told him that the fee was not $30,000, but $20,000. Tyler agreed to be involved.

22 At a subsequent meeting with Hatfield, Hatfield told him:

“You have to walk 15 metres carrying a bag and check the bag in at an airport in South America that is it.”

23 This was the first mention that had been made of checking a bag in. Tyler was also told that he would have to take some money out of the country, but that he should not worry about it and he would be told how to do it.

Subjective circumstances

Tyler

24 Tyler was born on 27 December 1972. He was therefore 32 years of age at the time he became involved in the conspiracy. He has no previous criminal record.

25 Tyler gave evidence in the sentencing proceedings, as did his father, Andrew Tyler, and a drug counsellor, John Baldwin. The sentencing judge also had the benefit of a written report by Mr Baldwin, and another by Ms Anita Duffy, a psychologist.

26 Tyler confirmed what had been contained in his induced statement. In particular, he confirmed that, one or two nights before his departure, Hatfield had produced a gun, and had issued him with a scarcely veiled threat.

27 Mr Baldwin first came across Tyler in 2000, as a drug and alcohol counsellor at a private hospital in Eastwood to which Tyler was admitted as a voluntary patient seeking treatment for a gambling problem. He was also diagnosed as having a drug (cannabis and ecstasy) problem and an alcohol problem.

28 Thereafter, he had been admitted to that hospital, or other hospitals, on a number of occasions.

29 Mr Baldwin’s view was that the development of his relationship with Kylie was “one of his major stumbling blocks”. He had met Kylie during one of his admissions. She was a heroin addict. Tyler was also introduced to heroin to which he became addicted. The relationship with Kylie was spasmodic but he became reliant upon her for his own emotional wellbeing.

30 At the time of Mr Baldwin’s report (23 March 2006) a son had been born to Kylie as a result of the pregnancy which I mentioned earlier. Although Tyler wishes to develop a relationship with the child, Kylie has been less than consistent in making this possible during his incarceration.

31 Despite his ongoing addiction Tyler has attempted, and sometimes managed, to maintain fulltime employment. Initially this was in the family business of insurance brokerage until this business was sold. Tyler worked for a time with the company that purchased the business. He resigned because of a relapse in his drug taking. This was not the only occasion on which his addiction caused the loss of employment. Mr Baldwin said:

“[Tyler] became extremely vulnerable because of the debts and addictions and was very susceptible to be influenced by others. It is my opinion as he was a victim of his addiction he is also a victim of unscrupulous persons who used him to their own end.”

32 Mr Baldwin had visited Tyler on several occasions pending sentencing. He said that Tyler consistently expressed his regret and remorse for his involvement. He expressed a wish to live a life free of drugs, alcohol and gambling. Mr Baldwin appeared to have only modest faith in his prospects of achieving this goal. He considered that the sentencing exercise, and the events that precipitated it, might have presented Tyler with a crisis necessary to stimulate the need for change.

33 A statement of assistance disclosed that Tyler had provided some information to investigating officers. Generally this was of “moderate” value only, being confined to corroboration of evidence already obtained. However, in one respect, which it is preferable not to detail, it was considered to be “a viable” lead into one outstanding matter, and therefore of “significant” value.

34 Tyler gave evidence that he had given assistance to the authorities and was prepared to consider doing so, “in whatever manner” was necessary. Although he recognised the risks to which this potentially exposed him, he had decided not to seek protection, but to serve his sentence in the general prison population.

35 It is notable that Tyler did not have an inauspicious start to his life. He was educated at the King’s School where he excelled in sport and was captain of both the school cricket team and rugby union teams. He represented Australian School Boys on a rugby tour of New Zealand. After leaving school he continued to play rugby union up to first grade for various clubs. His family is supportive and caring, as was evident from the evidence given by his father.

36 Ms Duffy recounted a not dissimilar history. She said that Tyler’s gambling addiction began when he was about 17 and he played poker machines in hotels. After his gambling escalated and carried him into severe debt his parents insisted on his admission for rehabilitation.

37 Ms Duffy performed a number of psychological tests. She reported in considerable detail, revealing that Tyler suffers from longstanding and deep-seated insecurities which resulted in his reliance on drugs and alcohol. Like Mr Baldwin, she was not optimistic about the prospects of his recovery from his addictions, although she considered that he had the insight and motivation, and the ability, to benefit from more intensive intervention and that, in those circumstances, he “shows a good prognosis for rehabilitation”.

38 Produced to the court was an impressive bundle of references from people of apparent standing, attesting to his good character.

Chalmers

39 Although Chalmers gave evidence in the trial (denying involvement in the conspiracy), he did not give evidence in the sentencing proceedings. Some of his background emerged in the evidence he gave in the trial; this was confirmed and/or supplemented by a Pre-Sentence Report, and reports of two psychologists.

40 He was born on 15 May 1964. He was 40 years of age at the time he became involved in the conspiracy. He had no prior criminal history. He also was educated at a private school, Barker College, and then at the University of NSW, where he gained a Bachelor of Commerce degree in 1985. He became a stockbroker and had employment in that industry in London and in a major bank in Australia. He married while living in London and had two sons. The marriage failed in 2002. He gave to a consultant forensic psychologist, Mr Tim Watson-Munro (who provided a report for sentencing purposes), what Mr Watson-Munro described as:

“… a complex clinical history with longstanding symptoms of depression and at times hypomania …”

41 This was confirmed by Dr Parmegiani, a consultant psychiatrist, who treated Chalmers during 2002 for symptoms of depression. Also revealed were instances of childhood sexual abuse and significant substance abuse, and symptoms consistent with bi-polar disorder.

42 He began using alcohol as a teenager and cocaine in his early 30s while in London. The marriage failed because of his drug use. On his return to Australia he undertook a course of intense psychotherapy which resulted in a temporary reconciliation. When the marriage ultimately failed Chalmers became “considerably destabilised” and resumed drug taking. He suffered severe depression, ongoing anxiety, sleep disturbance and impairment at times of concentration. Chalmers also produced an impressive bundle of references from individuals of some standing in the community.

The Remarks on Sentence

Tyler

43 In sentencing Tyler Taylor DCJ set out at some length the facts contained in an agreed statement of facts. This was in considerable detail and is not always easy to follow. He referred to the evidence given by Tyler and accepted that evidence, even where it was challenged by the Crown. For example, his Honour was invited by the Crown to reject his evidence that Hatfield had presented a gun to him and made the scarcely veiled threat to which I have referred above.

44 His Honour recognised that Tyler was entitled to a reduction in sentence by reason of his plea of guilty, but declined to quantify the reduction he applied. He noted that the Crown acknowledged:

“… that the plea was entered at an early stage of the proceedings and therefore represents significant willingness to facilitate the course of justice” ( Cameron v The Queen [2002] HCA 6; 209 CLR 339).

His Honour then added:

“However, the offender’s plea of guilty was made in the face of a strong Crown case and it must be said that conviction was inevitable.”

His Honour went on to state that he accepted Tyler’s expressions of remorse as genuine. He noted the delay in sentencing and observed that this arose because of the number of informants involved.

45 His Honour also recognised the assistance given to authorities by Tyler, which he considered to be “of considerable value to the Crown”.

46 He noted that Tyler was not serving his sentence in protection. This was in accordance with the evidence expressly given by Tyler. Tyler had agreed to give evidence in subsequent proceedings, in accordance with the induced statement to which I have referred; the Crown acknowledged that it would be appropriate for the sentencing judge to specify a discount to be allowed for future assistance. In that respect his Honour specified that he would reduce the sentence by 15 percent.

47 Although his Honour set out at some length the facts that had been put before him, he did not make any express finding about the involvement of Tyler, and the actual extent of his participation. In considering the acknowledged need for sentences to recognise the prevalence and seriousness of offences such as that to which Tyler pleaded guilty, his Honour said:

“In this matter the objective facts establish that the offender involved himself in the proposed importation of narcotics for commercial gain.”

He did this in the context of recognising the need for both specific and general deterrence.

48 His Honour then proceeded to impose the sentence which I have set out above.

Chalmers

49 In sentencing Chalmers Berman DCJ drew on the facts which had been established during the course of the trial. He said:

“The offender’s role was to obtain and pay for the courier’s tickets. It was he who booked the courier’s flights from Sydney to Buenos Aires and return. He also booked the interline flight taking the courier from Sydney to Melbourne. Intercepted telephone calls revealed the offender making those arrangements with a friend of his – Bob Nicoll (sic), who was a travel agent in Wyong.”

He went on to refer to Chalmers’ insistence on which flight was to be booked and commented that telephone intercept evidence:

“… revealed the efforts that the offender went to in order to obtain the ticket itself.”

50 He rejected, as inconsistent with the objective evidence, an assertion made by Chalmers that he was unaware of North’s activities as a drug importer “until very late in the piece”.

51 He also commented that the case against Chalmers “was a remarkably strong one”. He observed that Chalmers offered no satisfactory explanation, and at times no explanation at all, for many of the incriminating features of the intercepted telephone calls.

52 Nevertheless, he characterised Chalmers’ involvement as “relatively minor … in the overall operation”.

53 He inferred that any benefit to be obtained by Chalmers was relatively low.

54 With respect to Chalmers’ knowledge of the quantity of drugs proposed to be imported, his Honour said:

“I cannot say precisely what was in the offender’s mind as far as the quantity of drugs involved is concerned, but I can say, and say beyond reasonable doubt, that he well knew that a significant, substantial quantity of drugs was to be brought into the country.”

55 His Honour then turned his attention to issues of parity. He noted the sentence of nine years (with a non-parole period of five and a half years) imposed on Tyler, and also the sentence of ten years (with a non-parole period of six years) imposed on Chandler. It will be necessary to refer to this in due course.

56 His Honour noted a submission put by the Crown, to this effect:

“Tyler’s sentence was discounted by 15 percent with respect to his promise of future assistance, and by an unquantified amount by reference to his past assistance and his plea of guilty.”

57 By factoring those circumstances into the sentence then imposed, the Crown submitted that Chalmers should be sentenced to a total term in the order of 15 years. In putting this submission, counsel for the Crown postulated a discount, referable to past assistance and the plea of guilty, of 50 percent, giving a starting point, before the specified reduction of 15 percent, for future assistance of 18-20 years. In comparing the roles of Tyler and Chalmers (and Chandler) the Crown urged a conclusion that their involvement was approximately equal. What the Crown put to his Honour was, in effect, that, while Tyler and possibly Chandler did more physical acts (exporting money, travelling to South America) than Chalmers, they occupied a very much lower position in the hierarchy.

58 As to this, Berman DCJ said:

“So differently do I view the position, that I have anxiously considered and reconsidered my approach. The Crown’s submission is that the offender played a role at least equal to and perhaps even more important than the courier – Tyler – and the man who went to South America with him. I just cannot see that that is the case.

It is a very important factor to be borne in mind that people are to be sentenced for what they do . In this case the offender’s involvement was relatively limited. It was he who obtained the ticket for the courier. He did not travel overseas in the expectation that he would return with a substantial quantity of drugs in a suitcase. He did not get involved deeply with other co-conspirators. The only person he spoke to, I repeat, was North. He did not perform a role that required any particular gall or bravado.

It is a fundamental rule in sentencing that the sentence must reflect the objective gravity of an offender’s conduct . I am satisfied that the offender’s conduct placed him at a significantly lower level than that of others who have been sentenced for their part in this conspiracy.” (italics added)

59 His Honour then found that Chalmers had “assisted the authorities”, although he did not specify the nature or level of that assistance, merely observing, “that not much came of” it. Nevertheless, he discounted the sentence he otherwise would have imposed by approximately 10 percent.

60 He recognised that Chalmers was, at the time of sentencing, incarcerated on protection and speculated that it may have been his notoriety that prompted that. He recognised that it is no longer automatic that serving a sentence on protection means that the sentence is served in harsher conditions and said that he did not know, other than by way of hearsay statement, the nature or conditions of Chalmers’ imprisonment. He said:

“In deciding the appropriate sentence, however, I will bear in mind that there is a risk that the offender will serve part or indeed all of his sentence on protection, and there is a risk that those conditions of custody will be harsher than would have been the case if the offender had served his sentence in the general prison population.”

61 Having made some additional, conventional, observations about general deterrence and the like, his Honour proceeded to sentence Chalmers as set out above.

Ryan Chandler

62 Chandler was sentenced by Walmsley DCJ on 14 December 2006, that is, after Tyler and before Chalmers had been sentenced. He is not directly involved in the present proceedings, but the sentence imposed upon him is of relevance to the issues raised. It is convenient here to outline the sentence imposed upon him, and the reasons for its selection.

63 Chandler was sentenced to imprisonment for 10 years with a non-parole period of six years. This, Walmsley DCJ said, had built into it a discount of 20 percent referable to the plea of guilty. Mathematical calculation shows that, apart from the plea of guilty, Chandler would have been sentenced to imprisonment for 12½ years with a non-parole period of seven and a half years.

64 Chandler was 30 years of age at the time of sentencing, and had no criminal record. He entered a plea of guilty at an early, but not the earliest possible, time. He advanced a favourable subjective case, which led Walmsley DCJ to conclude that his prospects of rehabilitation were good.

65 For present purposes, the most important aspect of the Remarks on Sentence in his case concern the findings of fact as to his role in the enterprise. As to this, Walmsley DCJ said:

“The part he played, in summary, was to take $US50,000 to Argentina from Australia.”

66 He repeated this on more than one occasion, particularly when comparing the role played by Chandler with that played by Tyler. His Honour found that Chandler was paid $10,000 for his part, as well as expenses.

67 The finding that the full extent of Chandler’s role was to carry the US currency to Argentina is not entirely consistent with the evidence presented to Taylor DCJ in Tyler’s case. That evidence would suggest that Chandler was ready and available, if called upon to do, to carry the drugs into Australia; and that he played some part in supervising Tyler’s rather unstable behaviour whilst in Buenos Aires. Nevertheless, the finding provides the basis upon which he was sentenced.

68 Arguments that his role was greater were put to Walmsley DCJ on behalf of the Crown and expressly rejected by him. For example, his Honour said:

“24. In intercepted conversations Mr Hatfield is recorded as telling others that Mr Chandler was to be a potential walker or a courier of cocaine. The offender denied in evidence before me that he had any role other than taking money into Argentina. I am not persuaded that he had any other role, having regard for all of the evidence …

25. It was put to me that his assistance in looking after Mr Tyler in effect showed that he had a more significant role than he would have me accept. However, I do not see that as putting him in any position of authority over Mr Tyler. I am satisfied that he was merely either acting from his own compassion or doing what he did at the request of Mr North or a little of both …

26. It was put to me by the Crown that he was willing to perform a greater part than the part that he played and if asked would have brought cocaine back. However, the issue is hypothetical and I am not persuaded that he was asked and in any event, I am not persuaded that he would have done as asked, that is, imported cocaine had been asked to …

27. Mr Chandler said and I accept that Mr Tyler’s role included moving the cocaine in a suitcase. Although overall the Crown submitted that Mr Chandler was in a supervisory position over Mr Tyler I am not persuaded that this is so. There is some evidence for that in the agreed facts at paras 50-52 but I am not persuaded that it had the significance for which it was put forward …

28. … the Crown submitted in essence that the offender’s role should be treated the same as Mr Tyler’s. I am satisfied that the offender’s role was however, less significant than that of Mr Tyler. Each of them of course took in $US50,000. Each of them, I am satisfied, needed money for one reason or another and was motivated by financial gain. But Mr Tyler, I consider, had a significant role in addition to the role of the offender, namely, the role of moving the suitcase. Further, he was to be paid twice what the offender was to be paid. Of course the offender, as the Crown put to me, had a role which Mr Tyler did not have, that is, when he came back to Australia he was given certain messages to pass on. But in the scheme of things, that did not significantly increase his role.”

69 His Honour therefore determined to deal with Chandler:

“… as though his role was less serious and significant from that of Mr Tyler.”

The Crown appeal: Chalmers

70 In written submissions the Crown identified three specific grounds, particularised as follows:

“(1) The learned sentencing judge erred in his characterisation of the respondent’s role and its (sic) position vis a vis his co-offenders;

(2) The sentence imposed fails to reflect the criminality of the respondent’s offending; and

(3) The sentence imposed fails to adequately reflect the element of general deterrence.”

Ground 1: Chalmers’ role
Ground 2: Criminality

71 These grounds are, in my opinion, essentially the same. The Crown relied upon the passage from the sentencing remarks which I have extracted above, in which Berman DCJ rejected the submissions (concerning the relative roles of Chalmers and Tyler) that had been advanced by the Crown. The Crown argued that two errors could be detected in this passage: the finding of fact as to Chalmers’ role in the conspiracy, and the conclusion that his role placed him at a significantly lower level than that of Tyler or Chandler. The Crown complained that in characterising Chalmers’ role as merely “obtaining the ticket for the courier” his Honour ignored the relevant context. It pointed out that, unlike either Tyler or Chandler, Chalmers had had ongoing contact with North from late January 2005 until May 2005 and had knowledge at least of the fact of the conspiracy from as early as 27 January. It contrasted this with the (limited) contact Tyler and Chandler had with other participants, both in terms of time, and information they were given; the Crown also argued that Chalmers had a relationship with North which was one of “equal friendship”, in which North had sufficient trust in him to inform him of meetings with other participants and of the involvement of the airport personnel; and that his Honour failed to mention that Chalmers twice arranged and paid for North to travel to Coolangatta to meet Hatfield, knowing that the purpose of these meetings was in furtherance of the conspiracy.

72 The Crown further criticised the finding that Chalmers:

“… did not perform a role that required any particular gall or bravado”,

arguing that the purchase of the ticket involved “gall” to the extent that Chalmers used his own money, and an acquaintance, in its purchase. It argued that this was a “fundamental act in support of the conspiracy”, particularly because of the pressing necessity for Tyler to travel upon a particular flight.

73 Finally, in this respect, the Crown argued that the observation that:

“… [Chalmers] did not travel overseas in the expectation that he would return with a substantial quantity of drugs in a suitcase”,

as somehow demonstrative of a less serious role in the conspiracy was misconceived.

74 The Crown argued, correctly in my opinion, that the identification of Chalmers’ “role” in this way failed to recognise several important circumstances – the degree of contact Chalmers had with North, acting as a confidante; providing funds for travel both by North within Australia, and by Tyler to Buenos Aires; and organising the travel of both. The organisation and funding of Tyler’s travel was particularly critical: it ensured that he found himself in Buenos Aires, where he was to gain possession of the drugs; and it ensured that he would travel to Australia on a flight on which he would be protected from the scrutiny of non-corrupt airport staff. That these were overlooked denotes an error of considerable magnitude in the sentencing process. The result was a considerable understatement of what Chalmers did.

75 I think there is considerable substance in the propositions put on behalf of the Crown. In particular, the observation concerning the absence of any intention that Chalmers would travel overseas and return with drugs, as somehow diminishing his role, in my opinion, represents a misconception of the hierarchy of a drug conspiracy. Ordinarily, it is those who actually carry the drugs who are at the bottom of the hierarchy; in general, the higher the position in the hierarchy, the greater the distance from physical contact with the drugs themselves. Those in “managerial” roles are usually able to distance themselves from that physical contact. This, alone, in my opinion demonstrates error in the fact finding exercise. The telephone and listening device evidence show that Chalmers was, indeed, the confidante of North, who as I have noted, had a significant organisational function.

76 To treat Chandler and Tyler as more culpable because of their closer physical connection to the drugs was to invert the conventional approach to the blameworthiness attached to hierarchical positions in a conspiracy. No reason is shown why this conspiracy should be treated differently from others.

77 In my opinion, one flaw in the approach to sentencing Chalmers can be discerned in those passages which read:

“It is a very important factor to be borne in mind that people are to be sentenced for what they do”, and
“… the sentence must reflect the objective gravity of an offender’s conduct”,

and that his involvement was “relatively limited”.

78 It has long been the case that a relevant consideration in sentencing for conspiracy is the “role” played by the offender being sentenced: The Queen v Olbrich [1999] HCA 54; 199 CLR 270; Savvas v The Queen [1995] HCA 29; 183 CLR 1; R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340.

79 But this, to my understanding, has generally been intended, and read, as a reference to the position or seniority in the organisation of the offender whose sentence is under consideration. Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy – in a drug importation conspiracy, without couriers, no drug could or would be imported – they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward.

80 By contrast, those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable. A relevant factor here is the level of profit to be derived.

81 That is not the same as saying, as was here said, that a participant in a conspiracy is to be sentenced (solely) for what he or she does. In this case, that was applied to mean that Chalmers was to be sentenced only for his physical (or overt) acts undertaken in pursuance of the conspiracy.

82 The issue was dealt with at some length in Fox and Freiberg: Sentencing: State and Federal Law in Victoria, Oxford University Press, 1999. At pp 1012-1015, the authors said:

“ Role of the offender
12.916 The courts have noted that the organisation of the importation, manufacture, or cultivation of drugs and their distribution and sale takes on the features of a hierarchical commercial enterprise [ R v Chaplin (1991) 58 A Crim R 194]:

‘At the top of the distribution chain monopoly of power is high, risk of detection low (but the consequences if detected are very severe) and addiction rare. Profits at that level are very high. Further down the line monopoly of power evaporates and the risk of detection rises as the number of separate transactions increases … Generally manufacturers (or importers), and wholesalers handle much larger quantities of the drug than middlemen, retailers or consumers. The level of operation within the distribution chain, the scale of operation and the quantities of drugs, all correlate reasonably closely, but it is by no means a perfect relationship.’


The level of sentences will generally reflect the level of the offender in the hierarchy, whether he is an importer/producer, a courier, a medium scale distributor, or a low level distributor/consumer … However, the fact that an offender is a mere retailer does not necessarily entail a lenient sentence, only one lower than would have been earned had the person been a principal.

12.917 The severest of penalties will be reserved for offenders who have taken ‘a leading or executive part in the crime’, … the ‘masterminds or controlling agents’ … who often finance the entire venture. Large quantities are often involved, … and the schemes are usually carefully planned as commercial operations for personal financial gain … In Perrier (No 2) [1991] 1 VR 717 at 719 McGarvie J, in affirming a sentence of life imprisonment with a minimum of 19 ys 6m … upon a person convicted of being knowingly concerned in the importation of a commercial quantity of heroin, remarked:

The organisation by which the heroin is imported is devised in such a way that the criminal law is seldom applied to those primarily responsible for its importation, the principals of the criminal enterprise. Those who are detected, convicted and sentenced are usually not the master traders who set up and operate the organisation and receive its enormous profits, but those recruited as couriers who do the lowest level work, receive much lower financial return, take the greatest risks, and are most frequently caught. They deserve substantial sentences, and receive them, but they are the small fry. The master traders typically prosper, expand their criminal empires and their corruption of the community. Clearly enough, the most effective protection of the community from the ravages of the drug trade is provided by removing from the trade the principals who organise and control it. That should be the primary objective of the community agencies directed against the trade, including the courts in sentencing.

…”

83 Identifying the “role” of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the “role” of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy – the agreement to participate in an organised criminal activity.

84 That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [102]. That, in my opinion, is the first, and most fundamental, flaw in the approach to sentencing here taken.

85 Here, the sentencing overlooked the central “act” of Chalmers; he agreed, with the other conspirators, to participate in the importation of a large quantity of a prohibited drug into this country. While the authorities establish that identification of the role of the participant (if it can be identified) is relevant (Olbrich) and important, they do not establish that the fact of agreement, and the subject of the agreement, are to be put aside in favour of concentration upon the physical act or acts of the offender. In Savvas the appellant had been convicted of two conspiracies – the first to import, and the second to supply, heroin. The High Court held that, notwithstanding that the offences charged were of conspiracy, the sentencing judge was entitled to take into account that the heroin was in fact imported and distributed pursuant to the conspiracy, and that the appellant was involved in those events. To do so did not involve a contravention of the principle stated in The Queen v De Simoni [1981] HCA 31; 147 CLR 282. There was there no suggestion that it was Savvas who had in fact carried the heroin into this country; nevertheless, on what was decided in the High Court, it was appropriate for the sentencing judge to take into account that the object of the conspiracy had been achieved. The sentencing judge was not confined to sentencing the appellant on the narrow basis of what he actually physically did.

86 In response to the Crown submissions, counsel for Chalmers invoked the well-known principles concerning appellate review of fact finding by a primary judge. Generally, the appellate court is bound by the findings of fact made by the trial judge, unless those findings were not open on the evidence: see, eg, R v Olenik [2000] NSWCCA 90; R v Tarrant [2007] NSWCCA 124; R v Khouzame [2005] NSWCCA 505.

87 Counsel argued that, not only was it open to Berman DCJ to make the findings he did in relation to Chalmers, but also that those findings were “inevitable”. He sought to support this by pointing out that the primary conspirators had, in October 2004, successfully imported about 10 kilograms of cocaine, without any involvement of Chalmers, and that there was no suggestion that Chalmers had taken on the role of some of the participants in that enterprise – in other words, as I understand the argument, the primary conspirators had previously accomplished a similar importation, without the assistance of Chalmers, and therefore could have accomplished this importation without his help. In later submissions, considerable emphasis was placed upon the proposition that Chalmers was not “essential” to the conspiracy.

88 The inference sought to be drawn from this was that Chalmers’ role was of minimal significance.

89 I am unable to accept that the findings of fact were open, much less inevitable. It may be – indeed it is – true that the principals had previously imported cocaine without help from Chalmers. It may also be true that they could have completed this proposed importation without his assistance. It by no means follows that the role he played is of minimal significance. The argument is a non-sequitur.

90 Counsel drew attention to that passage in Olbrich in which the majority said:

“… it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did.”

91 Counsel argued that, in saying that offenders are to be sentenced “for what they do”, Berman DCJ was meticulously applying this principle.

92 I do not agree, for reason I have already given. Chalmers did more than simply book and pay for airline tickets: he agreed to be, and was, a participant in an agreement to import illegal drugs into Australia. No amount of defining, act by act, what Chalmers physically did can eliminate, or be allowed to obscure, that important fact. Nor, in focussing narrowly on what Chalmers did, was the judge bearing steadily in mind the offence for which he was to be sentenced. Indeed, that appears to have been put to one side.

93 Counsel also sought to make light of the degree of contact between Chalmers and North, pointing out that the two were long term friends and that their ongoing contact was not surprising. That, too, might be so, but it overlooks what was learned from the recorded conversations. Their ongoing contact was not in pursuit of their friendship; it was in pursuit of the criminal end of the conspiracy.

94 In my opinion in the present case the sentencing judge unduly confined the matters he took into account for the purposes of sentencing.

95 It follows that, in my opinion, the Crown has made good these grounds of appeal.

Ground 3: General deterrence

96 In support of this ground the Crown referred to well-known authority. His Honour made appropriate reference to the need for the sentence to include a component relative to general deterrence. Whether he adequately recognised that in its practical application can only be tested by examination of the sentence itself.

97 Counsel for Chalmers argued that the sentence was not, either at face value, or by comparison with the sentences imposed on either Chandler or Tyler, manifestly inadequate. He pointed out that, when the “approximately 10 percent” discount for assistance is factored into the sentence, the starting point can be shown to have been just over six years and one month. While the judge was not able to make a finding as to Chalmers’ knowledge of the precise quantity of cocaine intended to be imported, he was satisfied that Chalmers knew that the quantity was “significant, substantial”. Counsel also pointed out that, because no drug was, in the result, imported, the pure weight could not, as is usually done (see Customs Act s 4(4)), be ascertained.

98 Counsel also referred to the “strong” subjective case. I do not accept that that is the correct characterisation of the subjective case put before Berman DCJ. Chalmers was 42 years of age, and had no criminal record. His age does not help in this respect – he cannot claim the immaturity of youth as a reason for his transgression. The absence of a criminal record is of little weight in an offence such as this. Also relied upon was his successful career, but this, too, does not, in my opinion, assist in establishing that the subjective case was strong – to the contrary, that Chalmers had the advantages he had given him little cause for comfort.

99 I do accept that a diagnosis of bipolar disorder and depression rendered him vulnerable to the approach by North to become involved and is a relevant sentencing consideration to some (limited) extent diminishing his culpability.

100 Both parties referred this court to authorities concerning the principles to be applied in determination of Crown appeals against sentence. They are so well known as not to require rehearsal here. They were stated comprehensively by Wood CJ at CL in R v Wall [2002] NSWCCA 42. I bear them in mind in what I am about to say.

101 Even bearing those principles in mind, I am satisfied that the sentence imposed is manifestly inadequate. This was a conspiracy to import at least 20, and possibly 30, kilograms of cocaine (of unknown purity). Preparations for its execution were considerably advanced, and were thwarted only by either the untimely exposure of the involvement of airport employees in activities of this nature, or the unavailability of the drug in Buenos Aires, or a combination of the two. It involved the corruption of airport employees. Neither the fact that the importation was never going to succeed, by reason of the prior knowledge of the authorities, nor the fact that it was thwarted for other reasons, mitigates the gravity of the criminality involved.

102 In my opinion the Crown appeal should be allowed, and Chalmers re-sentenced.

103 Against the possibility of re-sentencing the court received an affidavit affirmed by Chalmers on 15 July 2007. He gave an account of his custodial conditions. He has been placed in a protective custody wing of the prison in which he is held, but this is a wing designed to house sex offenders. The programmes offered are focussed upon the rehabilitation of such offenders.

104 He has work “folding curtains”. He continues to take medication for his bipolar disorder. He has had only three visits since his incarceration. His two children live in Melbourne with his former wife and he has not seen them in about 18 months. They communicate by telephone and letters but, according to Chalmers, their mother has been “very obstructive”. He sees little of the children, even they though they travel to Sydney frequently.

105 He said that he had had time to reflect upon his offence and feels great remorse “about the concept of someone importing drugs into the country”.

106 The affidavit material casts little light upon the decision this court must make.

107 Prior to the hearings, neither party provided this court with any decision on sentencing in what might be called comparable cases. The court sought such assistance and received a further submission from the Crown. The Crown maintained its position that there is no case decided that is suitable to provide this guidance the court sought. I accept that the majority of cases dealt with by this court involve an actual importation, even if it is intercepted before it is released onto the market. But there have been numerous cases of sentencing in respect of conspiracies to import prohibited drugs or being knowingly concerned in such importation. A useful schedule is set out in a judgment of McClellan CJ at CL in R v Lee [2007] NSWCCA 234. It is a lengthy schedule, and I do not propose to repeat it here. On the basis of that information, and the objective and subjective circumstances, I propose that Chalmers be re-sentenced. I consider the appropriate range of head sentences is of 12 to 16 years. Having regard to the principles that apply to re-sentencing after a successful Crown appeal I propose that Chalmers be sentenced to imprisonment for 12 years with a non-parole period of 8 years.

The application for leave to appeal against sentence: Tyler

108 Initially, Tyler formulated five grounds of appeal, expressed as follows:

“1. The sentencing judge erred in the manner in which he took into account the plea of guilty;

2. The sentencing judge gave insufficient weight to the past assistance constituted by the [information provided]’;

3. In setting the non-parole period the sentencing judge gave insufficient weight to the prospects of rehabilitation and failed to give effect to a concession by the Crown;

4. The Crown should have regard to the fact that the appellant is now serving his sentence in protection;

5. In all the circumstances the sentence was manifestly excessive.”

109 By application filed on 9 July 2007, Tyler sought leave to add, as additional ground 6:

“6. There is a disparity in the sentences imposed upon the applicant and those imposed upon co-accused.”


Leave was, at the commencement of the proceedings, granted.

Ground 1: plea of guilty

110 It is usual, in sentencing in NSW, to allow and specify with some precision the reduction in sentence given by reference to the “utilitarian value” of a plea of guilty: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. That approach was frowned upon by the High Court in Cameron v The Queen [2002] HCA 6; 209 CLR 339. The majority there favoured an approach which permitted recognition of a plea of guilty by reference to the willingness of the offender to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing.

111 Cameron, however, has been held to have no application to sentencing in NSW: R v Sharma [2002] NSWCCA 142; 54 NSWLR 300. That is because of the particular provisions concerning sentencing contained in the Crimes (Sentencing Procedure) Act 1999. That Act does not apply to NSW judges sentencing under Commonwealth law, as was the case here. Accordingly, Cameron is applicable.

112 Taylor DCJ recognised this, and said:

“The appropriate discount in Commonwealth matters remains a discretion for the sentencing judge.”

Although he clearly made an allowance for the plea of guilty, he did not quantify the reduction made to the sentence. He then added:

“However, the offender’s plea of guilty was made in the face of a strong Crown case and it must be said that conviction was inevitable.”

113 On behalf of Tyler it was submitted that Taylor DCJ erred in the following respects:

“(i) Finding that there should be no discount in respect of the plea attributable solely to its utilitarian value; and

(ii) Diminishing the quantum of the discount by reference to the strength of the Crown Case. In this regard his Honour’s use of the word ‘[h]owever’ indicates that his Honour erroneously tempered his recognition of the utilitarian value of the plea in light of the strength of the Crown Case. In Drew [[2005] NSWCCA 50] the CCA found error where, similarly, ‘reference to the early plea is followed immediately by observations about the strength of the Crown Case’ …;

(iii) Failing to quantify any discount for the plea of guilty either discretely or as part of a combined discount rolled up with recognition of past assistance.”

114 In my opinion none of these arguments can be sustained. Taylor DCJ was called upon to sentence Tyler in accordance with the principles stated by the High Court in Cameron. This specifically excludes reference to the utilitarian value of the plea. Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable. Nor is there any requirement, in sentencing Commonwealth offenders, for quantification of a discount for the plea of guilty. I would reject ground 1.

Ground 2: past assistance

115 I have already outlined, so far as it is appropriate to do so, the nature of assistance given by Tyler, and the value attributed to it by Taylor DCJ, on the basis of an assessment by the NSW Crime Commission.

116 In sentencing Tyler Taylor DCJ referred expressly to that evidence and described the assistance as “of considerable value to the Crown”.

117 The submission made in this respect was that inadequate weight was given to the particular piece of information provided by Tyler. Criticism was made because no express mention was made of what that piece of information was. In my opinion there were very good reasons for his Honour to be elliptical about that, as, indeed, I have been. That does not mean it was overlooked; in fact avoidance of reference to it was, no doubt, brought about by reason of Taylor DCJ’s recognition of its significance, and the danger to which it potentially exposed Tyler. I would reject this ground of the application.

Ground 3: rehabilitation

118 By s 19AB of the Crimes Act 1904 (Cth) a court imposing sentence on an offender under Commonwealth law, where the sentence of imprisonment is in excess of three years, must fix a non-parole period or recognisance release order. It is generally considered appropriate that the ratio of the non-parole period to the head sentence be approximately 60 to 66 percent: R v Bernier (1998) 102 A Crim R 44.

119 The sentence imposed by Taylor DCJ is of a non-parole period that is 61 percent of the total sentence. It is that of which Tyler now makes complaint; it was argued on his behalf that, by reason of a “concession” made by the Crown in the sentencing proceedings, as well as other matters, the proportion was excessive and the non-parole period ought to have been lower.

120 The “concession” said to have been made by the Crown was expressed in the following terms:

“If your Honour finds such prospects [of rehabilitation], then your Honour is obliged to take it into account, obviously, for statutory reasons but it might, or can, [be] better reflected not only in sentence, but in the non-parole period, so as not to give rise to a sentence which is out of shape in relation to the deterrent effect which is necessary in cases like this.”

121 I take this to be a “concession” that, if prospects of rehabilitation were found, then it would be open to the sentencing judge to impose a sentence which included a non-parole period of less than 60 percent of the head sentence. Such an approach serves to maintain the deterrent effect of a suitably lengthy head sentence.

122 Such a proposition is in accordance with the authority of Bernier.

123 A number of circumstances were pointed to on behalf of Tyler as warranting a reduction in the non-parole period. These included the judge’s finding as to his prospects of rehabilitation; his awareness of Tyler’s drug and alcohol addiction which was the motivating force for his offending; and his previous good character.

124 The difficulty for Tyler, however, is that the decision was peculiarly a discretionary one. There is nothing in the Remarks on Sentence which would suggest that Taylor DCJ did not have adequate regard for everything that has now been advanced. In other words, taking all relevant circumstances into account, Taylor DCJ arrived at a perfectly proper balance between the non-parole period and the total term of the sentence. I can see no error in the approach taken. Accordingly, I would reject this ground of the application.

Ground 4: protection

125 I have mentioned above the evidence given by Tyler as to the nature of his incarceration. At the time of sentencing he had made a considered decision not to seek to be placed on protection. It was on this basis that Taylor DCJ sentenced him.

126 This court was provided with an affidavit sworn by Tyler in which he deposed that this position had now changed. He had been threatened whilst in custody because he was considered to be an informer. He made inquiries about the genuineness of the threat and was told that it was real and serious. As a result, he said that he had been placed on protection.

127 In support of the ground the following submission was made:

“The court has a general power to receive fresh or new evidence where the interests of justice require that course. That power has been exercised in circumstances where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing.”

R v Fordham (1997) 98 A Crim 359 (at 377) and R v Adanguidi [2006] NSWCCA 404 at [60] were cited as authority for the proposition.

128 The proposition is incorrect, and the cases cited do not support it.

129 In Fordham, Howie AJ (as his Honour then was) with whom Hunt CJ at CL and Smart J agreed, acknowledged that, on occasions, fresh evidence has been received by this court where a miscarriage of justice may have occurred because of incompetent legal representation at first instance, or negligence or carelessness in the presentation of the defence; and that new evidence may be admitted where it has real (but previously unrecognised) significance, or it was not made known to the legal representatives prior to sentencing. In either case, the evidence existed at the time of sentencing; it was not presented either because it was not known or its significance was not recognised. That is vastly different from the admission of evidence of circumstances that did not exist at the time of sentencing. Such evidence is inadmissible on an application for leave to appeal unless error is otherwise established and this court proceeds to exercise the sentencing discretion afresh: see R v Willard [2001] NSWCCA 6. That is because this court exercises a statutory jurisdiction conferred by s 6 of the Criminal Appeal Act 1912, s 6(3) of which permits this court to quash the sentence:

“… if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed …”

130 Here, the circumstances the subject of the proposed fresh or new evidence was not only not known or not recognised at the time of sentencing; it did not exist, and did not exist by reason of the decision of Tyler. Such evidence would be admissible only if the court proceeds to re-sentence; it is not admissible for the purpose of establishing error, so that the court should proceed to re-sentence.

131 In any event, the old view that this court should proceed on the basis that a prisoner serving a sentence on protection necessarily suffers more onerous conditions than one who does not no longer holds good: see R v Sukkar [2006] NSWCCA 92 at [3]-[5].

132 In my opinion this ground should be rejected.

Ground 5: manifestly excessive

133 The submission advanced on behalf of Tyler was relatively succinct. It was framed as follows:

“56. The applicant submits the head sentence imposed was manifestly excessive when consideration is given to matters already identified, specifically failure to give appropriate to the plea of guilty, the failure to quantify the discount for the plea of guilty together with the past assistance, the prospects of rehabilitation, together with a number of additional findings made by the learned sentencing Judge. These include:


(i) that the applicant was targeted at a place of rehabilitation by persons already criminally involved in the operation;

(ii) that the applicant’s continued involvement in the crime was explained, in part at least, by being shown the gun by Hatfield. The Judge described this as ‘a very significant fact, short of duress but nevertheless operating on the offender’s mind in a very real sense’;

(iii) the applicant acted solely at the direction of others and was not involved in any of the decisions that gave effect to the plan to import the cocaine.”

134 It is somewhat ironic that each of three identified matters in the submission contained a footnote reference to the passage where it was expressly adverted to in the Remarks on Sentence. In other words each of those matters was expressly taken into account. So also were the matters identified in the opening paragraph of the submission. I have already dealt with the ground concerning the plea of guilty. A reading of the Remarks on Sentence makes it plain that all matters were appropriately taken into account.

135 In R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340, this court promulgated a guideline for sentencing of couriers and persons low in the hierarchy of an importing organisation where the amount involved is a substantial commercial quantity – ie 3.5 kilograms to 10 kilograms – the head sentence promulgated was 10 to 15 years.

136 Notwithstanding that the High Court reversed this decision (Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584), it has been held that the range of sentences proposed continues to provide “a useful guide” to sentencing Commonwealth drug offenders: R v Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at [65]; and for a summary of the results of previous sentencing decisions: R v To [2007] NSWCCA 200 at [21]-[22] per Handley JA. Also necessary to be borne in mind is the repeal of s 16G of the Crimes Act 1914 (Cth) which previously required a court sentencing Commonwealth offenders to take into account (and thereby moderate the sentence) by reason of the absence of remissions available in NSW.

137 It is true that the starting point in respect of the present sentence is difficult to establish because the discount for the plea of guilty and the discount for past assistance have not been quantified.

138 As the Crown points out, even if it is assumed that all discounts (including the specified 15 percent for future assistance) are factored in, the starting point would have been approximately 18 years (against a maximum penalty of life imprisonment). While this would have been a severe sentence for a courier or person low in the hierarchy, when the proposed quantity of cocaine (20-30 kilograms) is also taken into account, such a sentence sits comfortably with what was proposed in Wong and Leung.

139 Further, it cannot be assumed that the total discount was 50 percent; in my opinion the plea of guilty did not warrant any more than 15-20 percent (on Commonwealth law principles) and the past assistance, while useful, was of limited value. These matters do not persuade me that the sentence imposed was manifestly excessive. No illustrations of sentencing patterns were put before this court to establish that the sentence was out of line with those imposed in comparable cases. I would reject this ground of the application.

Ground 6: parity

140 If the sentence imposed on Chalmers were allowed to stand, Tyler may have a persuasive case to make in relation to parity so far as he is concerned. However, having regard to the view I have expressed in relation to that offender, the strength of this ground is significantly diminished.

141 The parity argument in relation to the sentence imposed on Chandler drew attention to the fact that, although Chandler pleaded guilty and was entitled to some discount in respect of that circumstance, he did not cooperate with investigators and was not entitled to any discount for past or future assistance. (It was also argued that a relevant circumstance is that Chandler is not serving his sentence on protection, but, as I have indicated, the fact that Tyler is serving his sentence on protection is not a matter that this court can take into account.)

142 If the 15 percent allowed to Tyler by way of reduction by reference to future assistance is built into the sentence, then the starting point of his head sentence was 10½ years. On the facts found in Tyler’s case, he was not in a position significantly different to that of Chandler. (As I have indicated, that cannot be said on the facts found by Walmsley DCJ in Chandler’s sentencing, and that clearly creates some complication for this application.) In addition to the 15 percent designated for future assistance, Tyler was entitled to some further discount in respect of assistance already given; I would not quantify this at more than 10 percent. However, if that is added to the 15 percent, giving a total discount of 25 percent, then the starting point can be seen to have been a head sentence of 12 years.

143 The “sense of grievance” said to be legitimately felt by Tyler is therefore attributable to the whittling away of the value of his assistance; if he is to be treated as approximately on a par with Chandler, then, in respect of past and future assistance, he has received a discount of only 10 percent on his head sentence and 12 percent on the non-parole period.

144 This suggests that there is some substance in his complaint about parity in this respect.

145 I would add this: on the principles applying to Crown appeals, already explained, it has been necessary to propose, in respect of Chalmers, substitute sentences that are the very lowest end of the range properly available in respect of the offence. This, in my opinion, is capable of adding to Tyler’s sense of grievance. Of course, given that the Crown appeal in Chalmers had not been decided at the time of argument, the court has not heard from the parties in this respect.

146 I have come to the view that Tyler’s application should be granted, the appeal allowed, and he be re-sentenced to establish parity with Chandler, taking into account a discount of 25 percent for past and future assistance.

147 I therefore propose that he be re-sentenced to a term of imprisonment of 7½ years, with a non-parole period of 4½ years.

148 The orders I propose are:

Chalmers

(1) Crown appeal allowed, sentence set aside;

(2) The respondent be sentenced to imprisonment for 12 years commencing on 21 July 2006 and expiring on 20 July 2018 with a non-parole period of eight years expiring on 20 July 2014.

Tyler

(1) Leave to appeal granted, appeal allowed, sentence set aside;

(2) Applicant sentenced to imprisonment for 7½ years, commencing on 9 May 2005 and expiring on 8 November 2012, with a non-parole period of 4½ years, expiring on 8 November 2009.

149 HARRISON J: I agree with Simpson J.

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