Valsamakis v R

[2016] NSWCCA 156

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Valsamakis v R [2016] NSWCCA 156
Hearing dates:	1 March 2016
Date of orders:	04 August 2016
Decision date:	04 August 2016
Before:	Bathurst CJ at [1]; Hall J at [2]; R A Hulme J at [203]
Decision:	(1) Leave to appeal against sentence granted (2) Appeal dismissed
Catchwords:	SENTENCE – Conspiracy to import a commercial quantity of border controlled precursor (ss 11.5(1) with 307.11(1) of the Criminal Code (Cth)) – rolled-up offence involving five importations – applicant a customs officer and as such had responsibilities in detection and prevention of alleged cross-border activity – bribery of a Commonwealth Public Official (s 141.1(3) of the Criminal Code (Cth)) – Official Abuse Office to Gain Advantage (s 142.2(1) of the Criminal Code (Cth)) – parity – differential charging of co-offenders – hierarchy of offenders within charged conspiracy offences – no marked disparity in respect of sentences imposed – whether discount on sentence allowed for co-operation with law enforcement authorities – assessment in sentencing for nature and ongoing severity of imprisonment – protective custody – objective seriousness – sentences imposed not manifestly excessive
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
Cases Cited:	England v R; Phanith [2009] NSWCCA 274 FS v R [2009] NSWCCA 301; 198 A Crim R 383 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 Haouchar v R [2014] NSWCCA 227 Jimmy v R [2010] NSWCCA 60; NSWLR 540 Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 Markarian v R [2005] HCA 25; 228 CLR 357 Postiglione v The Queen [1997] 189 CLR 295 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Henderson [2014] QCA 12 R v Joseph Sukkar [2006] NSWCCA 92; 172 A Crim R 151 R v Lamella [2014] NSWCCA 122 SL v R [2015] NSWCCA 30 SZ v R [2007] NSWCCA 19; 168 A Crim R 249
Category:	Principal judgment
Parties:	Paul Apostolos Valsamakis (Applicant) Regina (Crown)
Representation:	Counsel: M Ramage QC (Applicant) L Crowley (Crown)   Solicitors: Tran Solicitors & Attorneys (Applicant) Director of Public Prosecutions (Cth) (Crown)
File Number(s):	2013/45391
Decision under appeal	Court or tribunal: District Court Jurisdiction: Common Law - Criminal Date of Decision: 30 January 2015 Before: Hanley DCJ File Number(s): 2013/45391

Judgment

1. BATHURST CJ: I agree with the orders proposed by Hall J and generally with his Honour’s reasons.

A. INTRODUCTION

2. HALL J: The applicant, Paul Apostolos Valsamakis, seeks leave to appeal by Notice filed on 15 September 2015 in respect of sentences imposed upon him in the District Court at Sydney by Hanley DCJ on 30 January 2015.

3. The applicant entered pleas of guilty to the following four counts:

1. Conspiracy to Import a Commercial Quantity of Border Controlled Precursor (pseudoephedrine) – Section 11.5(1) with 307.11(1) of the Criminal Code 1995 (Cth) (the Code) – between 1 November 2011 to about 30 June 2012 (a rolled up count).

2. Bribery of a Commonwealth Public Official – Section 141.1(3) of the Code – between 1 November 2011 to about 30 June 2012 (a rolled up count).

3. Official Abuse Office to Gain Advantage - Section 142.2(1) of the Code – between 20 January 2012 to about 26 May 2012 (communication of information to Adrian Lamella).

4. Official Abuse Office to Gain Advantage - Section 142.2(1) of the Code – Between 1 January 2012 to about 31 January 2012 (misuse of AUSTRAC form).

4. Two co-offenders, David Harb and Bruno Napoli, also appeared on the above date for sentence before his Honour in relation to related offences.

5. The offences for which the applicant was sentenced arose out of criminal conduct engaged in by a number of corrupt Customs officers and a baggage handler working at the Sydney International Airport (the Airport) who abused their respective positions in order to facilitate the importation of substantial quantities of pseudoephedrine into Australia in late 2011 and 2012.

Sentences

6. Particulars of the individual sentences imposed upon the applicant were as follows:

Amended CAN Seq. No.	Offence	Max. Penalty	Sentence
3	Conspiracy to Import a Commercial Quantity of Border Controlled Precursor	25 years imprisonment	8 years imprisonment
4	Bribery of a Commonwealth Public Official	10 years imprisonment	3 years imprisonment
6	Official Abuse Office to Gain Advantage	5 years imprisonment	18 months imprisonment
9	Official Abuse office to Gain Advantage	5 years imprisonment	9 months imprisonment

7. The sentences for the conspiracy and bribery offence (sequences 3 and 4), were concurrent. The sentences imposed in respect of the two offences of official abuse of office (sequences 6 and 9) each added an additional accumulated 6 months imprisonment.

8. The applicant was accordingly sentenced to an aggregate sentence of 9 years imprisonment with a single non-parole period of 6 years.

B. GROUNDS OF APPEAL

9. The applicant was granted leave to file and rely upon amended grounds to the application for leave to appeal on sentence, filed on 29 February 2016, the Crown not opposing the grant of leave.

10. The Amended Grounds of the Application for Leave to Appeal on Sentence are as follows:

(1)   The sentencing judge erred in his application of parity.

(1A)   There was no parity with the sentence passed on Christopher Phillip Cranney on 20th November 2015.

(2)   The sentencing judge erred in failing to make sufficient reduction in sentence for the assistance provided and to be provided by the Applicant.

(3)   The sentencing judge erred in filing [sic - failing] to sufficiently take into account the nature of and the ongoing severity of the Applicant’s imprisonment.

(4)   The sentence was in all the circumstances manifestly excessive.

C. FACTUAL OVERVIEW

11. The Customs officers involved in the criminal enterprise included, in particular, senior Customs officers Christopher Cranney (C. Cranney), and Adrian Lamella (Lamella). C. Cranney was the senior officer amongst them. The baggage handler who was also involved in the enterprise, David Harb (D. Harb), was a friend of Lamella. D. Harb worked for the organisation, Menzies Aviation. The other participants included Joseph Harb (J. Harb) (also a friend of Lamella), Bruno Napoli (Napoli) (an associate of Lamella), and Huy Bao Van Huynh (an associate of Napoli).

12. On sentence, the relevant facts were set out in a detailed Statement of Facts dated 1 December 2014 (being part of Exhibit C). The facts set out in paragraphs [13]-[21] below are derived from that Exhibit.

13. The relevant Customs officers, including the applicant, worked in various capacities or roles at the Airport. Their primary responsibilities included the detection and prevention of illegal cross-border activity. This involved undertaking risk assessments of travellers at the Airport and, where necessary, conducting searches of baggage, individual travellers and aircraft. For this purpose, each of the Customs officers, as required by their duties, had access to the Australian Customs and Border Protection Service (ACBPS) Intelligence and Investigative Systems at the Airport.

14. In early 2010, C. Cranney had become the Team Leader of the Air Border Security Team (the ABS Team) at the Airport. The role of the ABS Team was to identify and investigate any airside airport staff suspected of being involved in criminal activity. Staff within the ABS Team monitored closed circuit television (CCTV) footage of airport staff and employees and all passengers arriving at the Airport.

15. An ongoing police investigation into criminal activities at the Airport revealed a culture of corruption amongst a number of Customs officers involving the taking of bribes and abusing their official positions and participating in arrangements and activities that facilitated the importation of pseudoephedrine through the Airport in 2011 and 2012. The applicant was one of the corrupt Customs officers.

16. The Crown case alleged that there existed one overarching criminal conspiracy. In relation to that conspiracy, police investigations identified two related but separate criminal schemes.

17. The first scheme, occurring between June 2009 and June 2010, involved a plan to use couriers to import cold and flu tablets packed in their luggage in accordance with the following methodology. On arrival in Australia the couriers would pass through Customs and then collect their baggage (which contained concealed cold and flu tablets) with the intention of passing the tablets on to others once they had successfully cleared the Airport.

18. The corrupt Customs officers facilitated the scheme, in return for taking bribes, and providing advice to the principals of the scheme and the couriers as to the best means for concealing the cold and flu tablets in their luggage and avoiding detection at the Airport. They also participated in making arrangements for the couriers to return on flights at times when the corrupt officers would be on duty. The officers would then be available to assist in the execution of the scheme by making sure they were present at the arrival halls when the couriers returned, and oversee and ensure their safe passage. The co‑accused Lamella and another Customs officer, Paul Katralis (sentenced by his Honour Judge Sorby on 26 April 2013), were involved as part of the first scheme.

19. The second scheme, occurring between December 2011 and June 2012, involved a plan to import quantities of cold and flu tablets, and later powder, packed into the luggage of couriers but involving a different methodology. Rather than have the couriers collect the checked-in luggage at the Airport, the couriers’ bags were to be intercepted and removed from the incoming baggage by a corrupt baggage handler known to the Customs officers and then passed on to others outside the Airport.

20. The scheme involved members of the ABS Team, which included the applicant and his supervisor, C. Cranney. Lamella was also involved in this scheme though, as discussed below, he was not sentenced in respect of these offences. The responsibilities of the ABS Team included the monitoring and surveillance of incoming flights, and passengers, and the detection of potential illicit importations.

21. The corrupt ABS Team members facilitated the second scheme by ensuring that they were rostered on to perform duties on the days when the couriers arrived, and they monitored and undertook “surveillance” of the incoming flights. Additionally they ensured that CCTV cameras used by the ABS Team were not monitoring the interception of the couriers’ bags from the relevant flights.

D. AFFIDAVIT EVIDENCE

22. The applicant sought, and as discussed below, was granted limited leave to rely upon two affidavits respectively sworn by him on 18 August 2015 and 26 February 2016 on re-sentence in the event of the Court intervening and resentencing him. The second affidavit was, in part, in reply to affidavits filed by the Crown, namely the affidavit of Robert Skimmings sworn 17 February 2016 (as to the conditions of the applicant’s custody in the SPC facility, Long Bay Correctional Centre), the affidavit of Joel Wheeler sworn 18 February 2016 (as to the absence of any evidence of the applicant providing an induced statement to police) and the affidavit of Simone Hardy sworn 18 February 2016 (as to information provided to police by the applicant as to an unrelated matter and as to the fact that no statement was taken from him in about February 2013).

E. OFFENCES COMMITTED BY THE APPLICANT

23. The applicant pleaded guilty to a rolled-up conspiracy offence involving five planned importations of cold and flu tablets by which he and the other conspirators intended to import a total of 90.1 kg of pure pseudoephedrine into Australia for the purpose of being manufactured into methylamphetamine. These importations were to be effected by the methodology involved in the second scheme described above, using a baggage handler to intercept couriers’ bags whilst the applicant and ABS team members diverted surveillance, CCTV cameras and security from the relevant flight and baggage handling area.

24. The quantities of precursor sought to be imported in the five importations were as follows:

1. Mid-December 2011: This was an aborted importation. Initial steps had been taken to import 14 kg of pseudoephedrine from which 3.186 kg of pure precursor could have been derived had an actual importation taken place.

2. 9 March 2012: Approximately 32 to 40 kg (gross) of pseudoephedrine imported with 22.4 to 28.29 kg being pure precursor.

3. 4 June 2012: Importation of approximately 34 to 40 kg (gross), 23.8 to 28.29 kg being pure precursor.

4. 5 June 2012: Importation of 18 to 20 kg (gross), 12.6 to 14 kg being pure precursor.

5. 6 June 2012: Importation of approximately 40.7 kg (gross) with 28.2 kg being pure precursor.

25. The evidence was that the applicant was paid $55,000 in respect of the importation on 9 March 2012 and $100,000 in respect of the three June 2012 importations.

26. While the bribery offence was committed for the purpose of furthering the conspiracy, the two abuse of office offences were not related to the conspiracy. These charges concerned two occasions on which the applicant abused his duties as an ACBPS officer.

27. The first charge concerned the misuse of an AUSTRAC form. Sometime during January 2012, the applicant and C. Cranney discussed the possibility of identifying a passenger who would enter Australia with a large amount of cash and using the information to facilitate a robbery. Not long after this conversation, C. Cranney gave the applicant an AUSTRAC form of a passenger who had declared that he was bringing $160,000 in cash into Australia. The form also provided the passenger’s personal details such as his name, date of birth and address. The applicant subsequently gave a photocopy of the passenger’s form to Lamella and discussed the possibility of Lamella using the information to have someone conduct a robbery. Ultimately no robbery took place as Lamella was unable to find persons willing to conduct such an offence.

28. The second charge concerned the misuse of a PACE alert, the purpose of which was to enable Border Protection staff to undertake risk assessments in relation to the particular passengers moving through the Airport. On 20 January 2012, whilst the applicant was conducting an audit of the ACBPS control room as part of his duties he read a PACE alert relating to an associate of Lamella’s and his involvement in dealing drugs. The Applicant informed Lamella of the alert and offered to destroy the records despite knowing that the information relating to the alert was still held by the originating agency. The sentencing judge determined that the applicant destroyed the records so as to develop trust with Lamella.

29. In his remarks on sentencing, the sentencing judge set out the essential facts of the offences with which the applicant was charged. His Honour indicated and assessed the matters that were relevant to the nature and circumstances of the offences in determining the objective seriousness of the offences. Those matters were summarised at [12] of the Crown’s written submissions as follows:

1. The maximum penalties for the offences charged were 25 years, 10 years and 5 years imprisonment (noted in the table at [6] above).

2. The fact that any involvement in a conspiracy to import border controlled precursors into Australia was, by its nature, serious.

3. The conspiracy offence required a degree of sophisticated planning and considerable coordination of a number of individuals, who each performed vital roles in seeking to achieve the object of the criminal agreement.

4. The criminality of each offender was firstly to be considered by reference to their participation in an agreement to achieve as its objective the serious offence of importing large quantities of pseudoephedrine into Australia.

5. Each participant in the conspiracy played a role vital to its success. Each offender performed a role that was essential to successfully achieving the object of the conspiracy and each was responsible for the other’s actions in pursuing that object.

6. The applicant became involved after he was corrupted by fellow Customs officers but he thereafter appeared to have participated eagerly in the conspiracy.

7. During the course of the conspiracy five importations of pseudoephedrine were arranged by the syndicate.

8. The amount of precursor was substantial – the conspirators intended to import a total of 90.1 kg of pure pseudoephedrine into Australia for the purpose of it being manufactured into methylamphetamine.

9. The applicant and his co-offenders must have known the quantities of the precursor would be very substantial even if they were not aware of the specific kilogram weight.

10. The objective seriousness of the conspiracy offence was greater because the offence was committed for financial reward. The applicant, as noted above, received $55,000 for the successful 9 March 2012 importation and $100,000 for the June 2012 importations.

11. The commission of the importation offence by the applicant whilst employed as a Customs officer, in dereliction of the public duties he was entrusted to discharge and in circumstances where he used knowledge and information he had gained from his position were serious aggravating facts.

12. The Applicant’s breach of trust was a gross one and required a sentence containing a significant element of general deterrence.

13. The seriousness of the bribery and abuse of office offences were reflected in the maximum penalties of 10 and 5 years respectively.

14. The bribery offence was committed for the purpose of furthering the conspiracy. The two abuse of office offences involved serious breaches of trust by a government official.

15. Whilst the applicant did not receive any financial benefit from the commission of the bribery and abuse of office offences, it was conduct which exploited and seriously undermined the integrity of the ACBPS investigation systems and had the potential to bring the ACBPS into disrepute and undermine the public confidence in the ACBPS. The offence concerning the misuse of an AUSTRAC form (to initiate a possible robbery) also had the potential to cause financial and possibly physical damage to a member (or members) of the public.

30. As discussed below the sentencing judge also had regard to the sentences that were imposed on other offenders who were involved in the overarching enterprise to which corrupt Customs officers at the Airport were party.

31. His Honour identified and took into account subjective factors relating to the applicant. These were set out in [15] of the Crown’s written submissions as follows:

1. He was aged 41 years at sentence and was 39 at the time of the offending (DOB 1 March 1972).

2. He was married with two children. His eldest child has been diagnosed with a cranio-facial birth defect and suffered separation anxiety as a result of the applicant’s incarceration.

3. He had been educated to Year 12 and had thereafter been consistently employed with no problems in the workplace.

4. His incarceration would undoubtedly adversely affect his family and this was a factor that added to the applicant’s shame and remorse. However, the circumstances were not special or exceptional going beyond the sort of hardship which was the inevitable result of incarceration.

5. He had pleaded guilty to the offences in the Local Court. His guilty pleas and history of cooperation with the police indicated more than a recognition of the inevitable by him and warranted a reduction of 25% from an otherwise appropriate sentence.

6. He had immediately commenced assisting police when he was first arrested and had thereafter continued to assist the police – which was evidence of his contrition and a desire to facilitate the interests of justice.

7. He had provided significant cooperation and assistance to law enforcement agencies in the investigation of the importation enterprise on foot between late 2011 and mid-2012. He had provided three statements to police about the matter and had signed a (former) s 21E undertaking pursuant to the Crimes Act 1914 (Cth) (the Crimes Act) to give evidence in proceedings against co-accused if required. His assistance was full, frank and of high considerable value and a 50% combined discount for the Applicant’s guilty pleas and assistance was allowed.

1. He had voluntarily surrendered $110,400 of proceeds from the conspiracy to the AFP after his arrest – which was a significant demonstration and powerful indication of the genuineness of his contrition and remorse and a desire to facilitate the interests of justice.

2. He had no criminal antecedents – however prior good character was generally of less weight as a mitigating factor for a drug offence and his prior good character was necessary for his gaining employment as a Customs officer.

3. He had suffered from anxiety since childhood and at the time when he joined the conspiracy he felt anxious and depressed. His relationship with his wife was under strain and had deteriorated and he had been passed over for a promotion at work.

4. He had good prospects for rehabilitation and was unlikely to re-offend.

5. He was housed in the Special Purpose Prison and subjected to restrictions there. He would suffer hardship in custody that exceeds that experienced by prisoners in the general population.

F. GROUNDS OF APPEAL

32. I proceed to firstly consider Grounds 2, 3 and 4, each of which assert error in respect of the sentences imposed on the applicant before dealing with the other grounds. Grounds 1 and 1A (both raising issues as to parity of sentence) will arise in the event that Grounds 2, 3 and 4 are not established. This is so as a complaint as to parity (as made in Grounds 1 and 1A) should be dealt with last upon the basis that the sentence(s) imposed was/were otherwise appropriate: Jimmy v R [2010] NSWCCA 60; NSWLR 540 at [251].

Ground 2: The sentencing judge erred in failing to make sufficient reduction in sentence for the assistance provided and to be provided by the applicant

33. The sentencing judge commenced his consideration of the applicant’s assistance pursuant to s 16A(2)(h) of the Crimes Act (“the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences”) by making the observation that there was no “set discount” for “assistance” but that “the combined discounts for a plea of guilty and assistance of authorities have customarily ranged between 20% and 50%”: Remarks on Sentence (ROS) at AB 191.

34. Following reference to observations made in R v Joseph Sukkar [2006] NSWCCA 92; 172 A Crim R 151 at 153-154, and SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [3] by Howie J, his Honour observed, consistently with those authorities, that a combined discount for a plea of guilty and assistance should not normally exceed 50% and that a discount of more than 50% would be exceptional. His Honour added:

“…Generally a discount of 50% should be regarded as appropriate for assistance of ‘a very high order’. Discounts for plea and assistance of more than 40% should be very exceptionally, if at all, granted in cases where there is no evidence that the offender will spend the sentence, or a substantial portion of it, in more onerous conditions than the general prison population”: (Remarks on Sentence at AB 191)

35. The sentencing judge stated that the applicant had provided cooperation and assistance to law enforcement agencies in the investigation of the importation exercise that operated from late 2011 to mid-2012. He observed that the statement of assistance which was tendered in evidence, set out in detail the extent and value of the assistance provided. Additionally his Honour had regard to the fact that the applicant had signed a s 21E undertaking to give evidence against other co-accused if required: ROS at AB 192.

36. The sentencing judge, having examined the material before him, and taken account of the assessment by the appropriate AFP officers of that material, stated that he was satisfied that the assistance provided by the applicant was “… full, frank and of … high considerable value”: ROS at AB 192.

37. In imposing sentence his Honour assessed “past assistance” as equal to approximately 5% and future assistance at approximately 20%: ROS at AB 208.

38. In the written submissions for the applicant it was submitted:

“(i)   There is no fixed rule of law that exceptional circumstances have to be established by an offender before the offender, who is receiving a 25% discount on his/her sentence for an early plea can receive a further reduction in sentence before his plea of more than 25%;

(ii)   That his assessment of 5% reduction in sentence for past assistance was, in all the circumstances, too low.

(iii)   That his assessment of 20% for future assistance was incorrect in so far as it was based on an inaccurate or wrong appreciation as to what would be required of the applicant.

(iv)   That this Honourable Court should increase the reduction in sentence to be allowed for the combined plea and assistance to 55%.”

39. The applicant, in support of Ground 2, sought leave to rely upon his affidavits sworn on 18 August 2015 and 26 February 2016. In relation to the first of those affidavits, the applicant relied in particular upon the matters set out in paragraphs 3 to 6 as to his assistance to law enforcement authorities including, in particular, his undertaking to give evidence and the information he says he provided to the authorities concerning what he referred to as an “an unrelated matter”: Affidavit 18 August 2015 at [5].

40. In his affidavit sworn on 26 February 2016, the applicant again referred to the “unrelated matter” and to other general information he said he provided to police at the time of his arrest: at [3].

41. Paragraph 4 of that affidavit refers to the fact that he had been served with a subpoena to give evidence at the trial of G. Cranney expected to be listed towards the end of 2016.

42. The Crown submitted that the Court should refuse the applicant’s application to adduce additional evidence of his assistance to authorities it being observed that the circumstances in which the Court would permit such additional evidence on an application for leave to appeal against sentence were limited: Written Submissions for the Respondent at [45]. In that respect the Crown noted that the relevant principles had been extensively reviewed in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [104]-[121] by Simpson J (Davies and Grove AJ agreeing).

43. In that case Simpson J, as her Honour then was, observed that if evidence qualifies as “fresh” evidence, its admission may depend upon a further criterion, namely, the evaluation of its capacity to have affected the outcome of the proceedings at first instance: at [108]. If it is not judged to have that capacity, her Honour observed, (a) its admission is pointless, and (b) whilst it has to be considered in order for that evaluation to be made, the evidence may not, in the result be acted upon.

44. In the written submissions for the applicant at [27] brief reference was made to the applicant’s intention to rely on affidavit evidence “as to that which he has been obliged to perform and has performed as part of his assistance”.

45. At the hearing of the application for leave to appeal, the Crown submitted that the matters referred in the affidavits do not come within the discretionary exceptions which permit the receipt of additional evidence post sentence, accepting that the Court, of course, would need to examine the evidence for the purpose of the issue of the discretion: T 1 March 2016 at p 10.

46. Brief oral submissions were made by Mr Ramage QC who appeared in this Court on behalf of the applicant. He identified as a post-sentence fact that the applicant has been served with a subpoena to give evidence in the trial referred to in [41] above.

47. I turn to the other bases relied upon in the written submissions for the applicant in relation to Ground 2. These include the contention that his Honour erred in accepting the Crown submission that the applicant’s assistance was not so exceptional that the combined discount for the guilty plea and assistance should exceed a 50% reduction from an otherwise appropriate sentence.

48. In his consideration of the question of the combined sentence discount the sentencing judge commenced by referring to the relevant statements of principle that relate to the exercise of a sentencing judge’s discretion to reduce a sentence by reason of assistance provided to law enforcement agencies: R v Sukkar, supra, SZ v R, supra, and FS v R [2009] NSWCCA 301; 198 A Crim R 383.

49. In relation to the submission made on behalf of the applicant at [26](i) of his written submissions, to the effect that there is “no fixed rule of law” that exceptional circumstances have to be established by an offender before a combined discount exceeding 50% on sentence may be allowed, the sentencing judge correctly identified and applied, not a “fixed rule of law”, but the accepted approach in determining combined discounts. In this respect, in SZ v R, supra, Buddin J (with whose reasons Simpson and Howie JJ expressed agreement) observed at [52]-[53]:

I acknowledge, as did Latham J in Sukkar (supra) that there will be cases in which a combined discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind…

However, in light of the authorities to which I have referred, and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case …”

50. In Sukkar, supra, Latham J observed;

[54]   While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender.

See also Haouchar v R [2014] NSWCCA 227.

51. No error has in my opinion been established in the application by the sentencing judge in this case of the relevant principles to be applied in determining the combined discount allowed of 50%. Further, no error has been established in his Honour’s assessment that the circumstances of the applicant’s cooperation or assistance were not so exceptional that a combined discount should exceed 50%.

52. A question was raised in Ground 3 as to the applicant’s overall conditions of imprisonment (discussed below). Although not specifically a matter relevant to Ground 2, I note that in relation to the issue of “exceptional circumstances” in the context of an assessment of a combined discount for a guilty plea and assistance in FS v R, supra, Rothman J (with whom Campbell JA and Howie J agreed), at [21] observed:

“… Onerous conditions of imprisonment are not exceptional circumstances. They are often a corollary of the assistance granted.”

See also Haouchar v R, supra, at [37] per Rothman J (Hoeben CJ at CL and RA Hulme J agreeing) and SL v R [2015] NSWCCA 30 per Davies J at [44] (Simpson J agreeing).

53. In summary, in relation to Ground 2 the individual assessment of 5% discount for past assistance was in my opinion justified upon the basis of information provided to the authorities in relation to the relevant criminal enterprise from late 2011 to mid-2012. The assessment was well within the sentencing judge’s discretion. The assessment made for future assistance was one that, in my opinion, fell within the sentencing judge’s discretion, his Honour having, amongst other matters, had regard to the applicant’s undertaking to give evidence, and to provide information and assistance in the prosecution of his co-accused.

54. Ground 2 in my opinion is without merit and should be dismissed.

Ground 3: The sentencing judge erred in failing to sufficiently take into account the nature of and ongoing severity of the applicant’s imprisonment

55. In support of Ground 3 it was submitted that on the material before the sentencing judge his Honour was not aware and could not have taken into account the extent of and nature of the hardship the applicant has and will suffer: Written Submissions on behalf of the Applicant on Application for Leave to Appeal on Sentence at [30]. The hardship was specified in the submissions as including the fact that the applicant:

(i)   is extremely restricted in his ability to have access to the library or to books generally; and

(ii)   is likely to have to serve the whole of his sentence under such conditions; and

(iii)   is unable and will remain unable to take part in any programme such as works release.

56. The applicant, in support of Ground 3, sought to adduce “fresh” evidence referred to in his affidavit evidence as “conditions of hardship” that it was alleged apply to the sentence that he is serving and will continue to serve.

57. The Crown opposed the application to adduce additional evidence as to the applicant’s custodial situation and conditions: Respondent’s Written Submissions at [55]. In its submissions the Crown noted:

(i)   That the applicant gave evidence at the sentence hearing that he was being held in custody at Long Bay Gaol in the “SPC – Special Purposes Centre”: T 19; AB 19.

(ii)   He gave evidence as to his daily routine concerning time spent in and out of his cell. In this respect that he would generally be allowed out of his cell at 7:00-7:30am but on some days “would be locked in”. He would generally be locked back at 11:00am for an hour or so and then be let back out at 12:00pm until 2:30pm when he would be locked back in his cell until the next day: T 23; AB 26.

(iii)   He had completed a computer course, painting and decorating course and a drug and alcohol course whilst in custody: T 23; AB 26-27.

58. In his Remarks on Sentence, the sentencing judge stated:

“This offender [the applicant] is a former Customs officer, is partly housed in protection at the Long Bay Gaol (Special Purpose Centre). I am aware of the restrictions prisons [sic] housed therein are subject to. This has been affirmed by the offender in the evidence he gave before me. In particular, prisoners housed in this gaol are significantly restricted in their access to time out of their cells in comparison to those prisoners in the general population. Usually prisoners are released from their cells at 7:30am and then returned at 11:00 for an hour, released at 12 noon and then returned to their cells at 2:30pm until the following day. On some occasions they are not released at all and remained confined in their respective cells for the entire day …

I am satisfied on the evidence before me the offender will suffer hardship in custody that exceed(s) that experienced by those prisoners in the general population, as a result of the fact that he was a Customs officer and his intention to give evidence in future hearings against co-offenders where it will result in his being identified as an informant.” (ROS at 59-60; AB 195-6)

59. The bases upon which the Crown submitted the Court should refuse to admit the additional evidence, were as follows:

a.   When sentencing the Applicant the learned sentencing judge made a finding and took into account that the Applicant would suffer hardship in custody greater than that experienced by prisoners in the general population;

b.   An acceptance of hardship in custody was also taken into account in setting the discount for assistance and guilty pleas at 50%.

c.   Most of the matters regarding the conditions of custody at the SPC as set out in the Applicant’s affidavit of 18 August 2015 at paragraphs 10-15 are “new evidence” of matters that could have been the subject of evidence during the sentence proceedings or are matters that his Honour implicitly took into account in finding that the Applicant would suffer hardship in custody.

d.   It is likely that there will always be a divergence between the conditions of custody at sentence and the actual conditions of custody after sentencing for persons in the position of the Applicant. A sentencing judge must determine whether, and to what extent, an offender will experience hardship in custody above that of the general prison population by evaluating the evidence adduced on behalf of the offender and making a prediction or forecast about the likely conditions of custody that will be experienced by the offender post-sentence. A difference in post-sentence conditions does not necessarily demonstrate error or a failure to appreciate the circumstances of an issue raised by the offender at sentence. (RWS at [56])

60. As to the approach this Court has taken in cases in which additional evidence was sought to be adduced on an application for leave to appeal against sentence, the Crown contended that a similar complaint as was sought to be advanced on behalf of the applicant in the present case was rejected in Haouchar v R, supra. In that case, Rothman J stated at [27]-[32]:

This ground of appeal, or application for leave to appeal, is manifestly unarguable. The sentencing judge was informed the applicant would be imprisoned in the Special Protection area at Long Bay as a consequence of the assistance he had rendered to police.

There is no suggestion that a judge of the District Court dealing with sentencing would not be familiar with the Special Purpose Centre to which the applicant would be confined. Moreover, his Honour accepted that the applicant's conditions of custody within the Special Purpose Centre were generally to be more onerous than those experienced by the general prison population.

In effect, the applicant now seeks to put before this Court, on appeal, additional evidence of particular circumstances that are experienced in the Special Purpose Centre, which evidence could have been adduced at sentence, if thought appropriate, and which material, frankly, would be well known and is well known to judges of the District Court dealing with criminal sentencing and judges of this Court with like duties.

Sentencing proceedings are not a first step in a process that is intended to be finalised on appeal. Parties are not permitted to enhance their cases on appeal by introducing new or different evidence, particularly evidence that was, or would have been, available at the sentence hearing.

His Honour expressly took into account the conditions of custody that, in his Honour's view, were more onerous than would ordinarily be experienced.

This ground of appeal must fail. Further, the ground has no basis in the Remarks on Sentence. Nor is there any basis for assuming his Honour was unaware of the onerous conditions that he expressly took into account.

61. These observations, in my assessment, apply equally to the present case.

62. It is necessary to evaluate the “fresh” evidence in order to assess any effect it may have in the event of resentencing. This is so concerning evidence of events occurring after sentence in a case where no error is established in the sentence imposed: Khoury, supra, at [117]. The principal matters raised in the applicant’s affidavit sworn 18 August 2015 included:

1. That he has been told that as a result of giving evidence he will serve the whole of his sentence in the SPC. In addition to the hours he is locked in his cell each day in solitary confinement, there are no more programs to enrol in. He has only limited time in the library, limited contact with anyone else in prison, and then only as approved and only two hours per weekend with family. Additionally, the applicant stated that he will never look forward to any opportunity to obtain “ordinary prisoner privileges”, eg, extended family visits, work release, limited time slots for visitors.

2. Due to SPC staff shortages, he has been locked for periods of up to 41 hours regularly.

63. In his affidavit sworn 26 February 2016, the applicant responded to matters in the affidavit of Robert Skimmings sworn 17 February 2016 in paragraph 6(a) to (d) and in paragraph 6(i), (ii) and (iii) (restrictions in relation to the SPC as to the gymnasium, exercise yard, access to the library), 6(e)(v)-(vii) (the applicant’s experiences, including as to the delay in receipt of health and psychological services).

63. Limited oral submissions for the applicant were made on Ground 3 beyond the matters raised in the written submissions directed to that ground. Mr Ramage acknowledged that it is only in “rare circumstances” that evidence might be received on an application for leave to appeal in relation to post-sentence events: T 11:15-20. Mr Ramage stated that the applicant:

“… is now in a situation where it’s highly unlikely that he will ever be able to be released during the duration of his sentence from the SPC.” (T 11:32-35)

65. During the hearing of the application for leave to appeal, when asked by his Honour, R A Hulme J, whether it had been thought at the time of the proceedings on sentence that the applicant might have been able to transfer to some other facility, Mr Ramage responded that it was anticipated or hoped that he might have been able to go to another [named] facility but that that facility had since been closed: T 11:35-40; 50-T 12:1.

66. Mr Ramage ultimately accepted that the sentencing judge had sentenced the applicant upon the basis that he would serve his sentence at the SPC: T 12:10-20.

67. The evidence as to the applicant’s conditions in custody in my opinion should not be admitted to support Ground 3 for the reasons set out in the Crown’s written submissions extracted in [62] above.

68. At the hearing of the application for leave to appeal the Court determined that it should permit the applicant’s two affidavits to be relied upon but only upon the limited basis of their use in the event that this Court intervened to resentence the applicant: T 12:20-25.

69. Ground 3, in my opinion, is without merit and should be dismissed.

Ground 4: The sentence was in all the circumstances manifestly excessive

70. The applicant’s written submissions in relation to Ground 4 were expressed in brief terms as follows:

“32.   It is submitted that in the light of the sentence imposed on Lamella, those imposed on Harb and Katralis and the other sentences summarised in this Court in the decision of Harb and Katralis referred to above, and in the matters set out in the grounds referred to above, the sentence imposed on the Applicant was manifestly excessive.”

71. There were no oral submissions in support of this ground.

72. The Crown’s written submissions were as follows:

To make good this Ground of Appeal the Applicant must establish error in the exercise of the learned sentencing judge’s discretion of the kind discussed in House v The King (1934) 55 CLR 499 at 505. It is not enough that this Court may have considered that had it been in the position of the sentencing judge, it would have taken a different course.

The sentence imposed upon the Applicant was a sentence of a severity appropriate in the circumstances of the offence and was within the reasonable sentencing discretion of the learned sentencing judge.

When the reasons for the imposition of the sentences received by the co‑offenders Lamella, Katralis and J Harb are considered there is no basis for concluding that, in comparison, the Applicant’s sentence is manifestly excessive.

73. In Markarian v R [2005] HCA 25; 228 CLR 357, Gleeson CJ, Gummow, Hayne and Callinan JJ, observed at [25]:

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt, and McTiernan JJ in House v The King … itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.

74. The written submissions on behalf of the applicant did not seek to identify any “specific error” of the kinds referred to in the abovementioned extract.

75. In my opinion, there is no basis for a conclusion that the sentences imposed by the sentencing judge were either unreasonable or plainly unjust. The objective seriousness of each of the offences was, as determined by the sentencing judge, at an extremely high level. The sentencing judge had due regard for all relevant and subjective factors concerning the applicant’s offending. No submission was made to the contrary.

76. The sentences imposed were not manifestly excessive.

77. As noted in the discussion below in relation to the alleged disparity of sentences (at [198]-[199]) the sentence imposed upon the applicant in respect of the conspiracy offences is to take into consideration the sentence imposed on Lamella which had a starting point of 16 years (as in the applicant’s case). This Court in respect of the Crown appeal against the sentence imposed on Lamella concluded that the sentence imposed in that case was at the lower end of the appropriate range.

78. Ground 4 is without merit and should, in my opinion, be dismissed.

Ground 1: The sentencing judge erred in his application of parity

Relevant Matters in the Application of the Parity Principle

1. (a) Overview

79. The sentencing judge, Hanley DCJ, approached the question of parity between the applicant and Lamella on the basis that he was comparing two offenders who had been involved in two separate conspiracies: ROS at p 65; AB 201. As discussed below, his Honour noted a number of points of similarity and points of distinction.

80. Before considering the parity issues argued by the applicant arising under Ground 1 based upon the sentence imposed on Lamella in respect of the conspiracy offence to which he entered a guilty plea, it is necessary to set out the factual matters and findings concerning Lamella.

(b) Observations of Hanley DCJ

81. Lamella, his Honour noted had pleaded guilty to a rolled-up conspiracy offence of conspiring to import the controlled precursor pseudoephedrine in a commercial quantity and requested that other related offences be taken into account pursuant to s 19BA of the Crimes Act. It was an offence involving three planned importations of cold and flu tablets using different couriers each involving 10 kg of tablets that converted to between 4.8 to 7.35 kg of pure pseudoephedrine committed by the first method referred to in [17] above and assisted by corrupt Customs officers.

82. This was a considerably lesser quantity than that the subject of the charges against the applicant (90.1 kg of pure pseudoephedrine).

83. Whilst the difference in quantities was a distinguishing factor, the sentencing judge noted that both involved substantial quantities: ROS at p 65; AB 201.

84. His Honour observed that Lamella and the applicant each committed gross breaches of trust as a result of utilising their knowledge as Customs officers to achieve the object of each conspiracy. Regarding the respective conspiracies, Hanley DCJ was satisfied that Lamella had a far more senior role in the hierarchy of offenders than the applicant with respect to the scheme with which he was involved. His Honour determined that the applicant’s role was objectively less serious in comparison to Lamella: ROS at p 66-7; AB 202-3. In that respect he observed:

“Valsamakis by comparison to Lamella was not a joint principal; not as high up in the hierarchy of offenders participating in the conspiracy; and not as intimately involved in every managerial aspect of the criminal conspiracy.”

85. That observation, of course, is one aspect of a complex of other factors associated with each of the two conspiracies with which the applicant and Lamella were participants in as discussed below.

86. The comparison made by the sentencing judge in terms of seniority of role in the hierarchy of offenders does not equate to a determination as to the level and significance of their respective positions as evaluated at the time of sentencing. Whatever role Lamella had in regards to the overarching conspiracy, as discussed below, Lamella was sentenced only in relation to three importations between 2009 and 2010 and was not charged and sentenced in relation to the five importations which the applicant was involved in.

87. It is noted that whilst Lamella held a more senior role than the applicant within the criminal conspiracies, he did not hold a more senior role within the hierarchy of the ACBPS. Both Lamella and the applicant were employed as Customs Officers. As noted below, it is not to be overlooked and it must be brought into account the fact that the applicant held the senior position of acting team leader of the ABS Team in relation to one of the four importations, the importation on 9 March 2012.

88. Another relevant consideration in this regard is the fact that the applicant was 39 years old at the time of offending and had been working with ACBPS since he was 26 years old. Conversely, Lamella was aged 25 to 26 years when he committed the offences for which he was charged and had been employed by ACBPS since he was 22 years of age.

(c) Sentencing of Lamella – by Sweeney DCJ

89. Prior to the Applicant becoming involved in the five importations between December 2011 and June 2012, Lamella and J. Harb successfully completed three importations of cold and flu tablets between June 2009 and June 2010.

90. As to the three importations of pseudoephedrine with which he was involved, the first occurred in June 2009 and involved two couriers. Lamella explained to them the method to be used for the importation. J. Harb collected the tablets from the couriers and paid them $10,000 each. The tablets were sold for $200,000. J. Harb and Lamella each received $95,000 for their respective roles in the first importation.

91. Towards the end of 2009, Lamella approached Katralis to assist with the second importation and offered him $10,000 and some human growth hormones as payment.

92. The second importation occurred in March 2010. In that month J. Harb flew to Thailand. There he purchased approximately 10 kg of cold and flu tablets containing pseudoephedrine. After they were successfully imported J. Harb sold the tablets for $200,000. Katralis received a payment of $19,200 from Lamella. Lamella received about $85,000.

93. The third importation occurred on 17 June 2010 and involved Lamella, J. Harb and Katralis. J. Harb purchased about 10 kg of cold and flu tablets in Thailand. Some tablets were said to have been stolen. Lamella received $5,000 for his part in the importation.

94. The sentencing judge found that approximately 10 kg of cold and flu tablets was imported in each of the three importations between June 2009 and 2010. The amount of pure pseudoephedrine in the three importations was, as has been noted above, estimated at between 4.8 and 7.35 kg. Sweeney DCJ noted that an experienced chemist can convert 1 kg of pseudoephedrine into approximately 0.9 kg of methylamphetamine which equals a wholesale value of $250,000.

95. In respect of the role undertaken by Lamella, Sweeney DCJ noted that he conspired with J. Harb and others to organise for the importations of commercial quantities of pseudoephedrine using six different couriers. He was found to have taken an active and equivalent role to J. Harb in effecting the conspiracy, although having played different roles. Lamella’s role involved him using his knowledge of Customs procedures used at the Airport in Sydney in instructing the couriers in subverting those procedures. He additionally subverted Customs procedures in a way whereby he placed himself at the Airport at the appropriate times in order to assist the couriers.

96. Lamella received a total of $185,000 (as noted above, $95,000 for the first importation, $85,000 for the second importation and $5,000 for the third). The sentencing judge determined Lamella’s offences to have been serious offences of their type involving an abuse of position and of knowledge as a Customs officer to commit the conspiracy charge and put it into effect.

97. Following these three importations, Lamella and C. Cranney met at the Star Casino in late December 2010. The two had a conversation about becoming involved in the importation of illicit substances. Lamella, having earlier in the year had a number of conversations with the applicant about getting “gear” into Australia, informed the applicant of the conversation that occurred at the Casino.

98. On 18 August 2012, J. Harb was arrested and charged in relation to the importation of the cold and flu tablets that had been purchased in Thailand during December 2011. On 3 October 2012 J. Harb provided an induced statement to police which detailed his involvement with Lamella and the others in the three importations of cold and flu tablets via the Airport between 2009 and 2010.

99. On 17 December 2012 Lamella was arrested and charged in relation to his involvement in the three importations between 2009 and 2010. The applicant was not party to these earlier importations. On 7 February 2013 Lamella provided an induced statement to police which detailed the involvement of him and others in the importations of pseudoephedrine into Australia between December 2011 and June 2012.

100. Lamella pleaded guilty to two offences, one of conspiracy to import the controlled precursor pseudoephedrine in a commercial quantity. Such an offence carries a maximum penalty of 25 years imprisonment. He was also charged with a second offence, namely an offence that as a Commonwealth Public Official, a Customs and Border Protection Officer, he dishonestly agreed to receive a benefit with the intention that it would influence the exercise of his duties as a Commonwealth public officer. The maximum penalty prescribed for that offence was 10 years imprisonment.

101. Of note, Lamella was not charged in relation to his involvement in the five importations between December 2011 and June 2012.

102. Lamella requested that in sentencing him for the offence of conspiracy to import the pseudoephedrine, the sentencing judge (Sweeney DCJ) take into account two offences on a Form 1 under s 16BA of the Crimes Act, being: (i) an offence that whilst being a Commonwealth public official he engaged in conduct in the exercise of his official duties as such an official with the intention of dishonestly obtaining a benefit for himself, namely, affixing an official stamp to some blank passenger cards for use in the conspiracy offence, and (ii) that he dishonestly provided or offered to provide a benefit to another person, the receipt or expectation of the receipt of the benefit being to influence a public official in the exercise of his official duties. This referred to him making or offering payments to another Customs officer, Katralis, in the course of carrying out the conspiracy the subject of the first offence to which Lamella pleaded guilty.

103. The sentencing judge noted that there was an overlap between the elements of the two offences to which he pleaded guilty.

104. Lamella was sentenced on 6 February 2014. He was allowed a combined discount for his plea and assistance of 50%, of which 12.5% was provided for future assistance.

105. In respect of the offence of conspiracy to import pseudoephedrine and taking into account the matters on the section 16BA form, he was sentenced to a term of 8 years imprisonment, to date from 17 December 2012. (The starting point for the sentence before the discount was applied was a term of imprisonment of 16 years.)

106. For the offence of agreeing to receive a benefit to influence the performance of his duties (namely a bribe), Lamella was sentenced to 3 years imprisonment to date from 17 December 2012.

107. A single non-parole period of 4 years imprisonment to date from 17 December 2012 was imposed.

108. The Commonwealth Director of Public Prosecutions (DPP) appealed against the sentence imposed upon Lamella on six grounds: R v Lamella [2014] NSWCCA 122. In respect of Ground 6, namely, that the sentences were manifestly inadequate, Price J (with whom Garling and Bellew JJ agreed), concluded at [82] that:

“The head sentence of 8 years was within an appropriate exercise of the sentencing judge’s sentencing discretion although towards the lower end of an appropriate range. I have found, in my respectful opinion, that her Honour erred in fixing a non-parole period of 4 years. The non-parole was manifestly inadequate. In all the circumstances, a non-parole period of 6 years was called for.”

109. By reason of a combination of matters, Price J concluded that the Court should exercise its residual discretion not to intervene: at [89] a conclusion with which the other members of the Court agreed.

(d) Sentencing of Katralis – by Sorby DCJ

110. In support of the applicant’s parity submissions in relation to Ground 1, reliance was originally placed in the written submissions upon a comparison between the sentence imposed on the applicant and Katralis who was sentenced by Sorby DCJ on 26 April 2013.

111. It is evident, in particular having regard to the objective facts relating to the applicant’s offending, that the criminality and offending conduct of Katralis was far less than that of the applicant.

112. At the hearing of the applicant for leave to appeal, Mr Ramage accepted that the sentence imposed on Katralis did not assist the applicant on the parity ground.

113. (e) Sentencing of the Applicant – by Hanley DCJ

Role

114. Hanley DCJ proceeded to identify the role of the applicant and each of the other two offenders sentenced by him. In relation to the importation conspiracies, his Honour stated at 35:

Valsamakis:

Has given evidence before me that he was approached by Lamella and C. Cranney, fellow Customs officers to join in a conspiracy to illegally import pseudoephedrine. This is a qualification of what is contained in para 5 of the “facts” concerning the commencement of his participation in the conspiracy. I accept his evidence in this respect but note that despite the fact that he was corrupted by fellow corrupt Customs officers he thereafter appears to have participated eagerly in the conspiracy. I also note his fellow officers appear to have been confident he would join them and were not fearful he expose their corruption. Their assessment of him was not displaced;

Thereafter he assisted in planning each of the importations with Lamella and C. Cranney including coordinating rosters and discussing the methodology to be employed for each importation to minimise the risk of the couriers and consignments of pseudoephedrine being intercepted.

Engaged in discussions with C Cranney and Lamella regarding the status of the planned importations; Lamella’s progress in liaising with co-conspirators who were sourcing the pseudoephedrine and organising the couriers; The amounts of money they were expected to be paid for participating in each of the importations and when they expected to be paid; and, after each importation discussing with C. Cranney and Lamella whether the importations had succeeded and if not what had gone wrong.

In relation to the March 2012 importation he used his position as acting team leader of the ABS team to ensure that the couriers were not intercepted by ensuring that this critical investigative unit was not targeting the relevant flight and couriers on the date of the importation.

Spoke with C. Cranney to extend his stay in the ABS team and to facilitate Lamella’s transfer into the team for the purpose of the June 2012 importations.

In relation to the June importations, with Lamella, used his position within the ABS team to ensure so far as possible that the couriers were not intercepted by ensuring that the team was not targeted or detected, the couriers being used for the importations.

When the couriers of 6 June 2012 were discovered attempted to disrupt or divert the investigation to avoid the participants in the importation being discovered.

On 28 June 2012 with Lamella attended a meeting with Napoli which a large quantity of cannabis was transferred into their possession.

I note in contrast to Lamella and C. Cranney he did not recruit others, particularly Customs officers to join the conspiracy.

Motivation

115. On the subject of “Motivation” Hanley DCJ observed:

1. That the objective seriousness of an offence of the kind in question is greater when the offence is committed for commercial reasons. That was the motivation of all three offenders to be sentenced by him.

2. That in the planning stages the applicant informed Lamella that he expected to be paid $100,000 per importation (as did the other two of the three offenders).

3. That ultimately each received $55,000 for the 9 March 2012 importation and $100,000 for the June 2011 importations.

4. That the applicant subsequently surrendered $10,000 and later the amount of $100,400 to the AFP.

5. There was some evidence that, whilst initially agreeing to participate in the offence, he was “persuaded” to continue to assist the others in later importations as a result of threats to disclose his involvement to the authorities. On that basis the sentencing judge stated that he would give some weight to that evidence in mitigating his involvement in achieving the conspiracies’ objectives.

Breach of Trust

116. On the subject of “Breach of Trust” , his Honour made the following observations and findings in respect of the applicant at 40:

The offender was an ACBPS officer with specialised knowledge of how the detection and clearance processes at Sydney Airport worked and who was trained in relation to the law and penalties applicable to importation offences. As part of his duties he was responsible for detecting and preventing breach of, and threats to, Australia’s borders including the detection and prevention of the importation of prohibited substances. His breach of trust was a gross one and requires a sentence containing a significant element of general deterrence.

The magnitude of a Customs official breaching his position of trust is comprehensively expressed by Price J in R v Lamella [2014] NSWCCA 122 at [57]:

“In the present case, general deterrence is a matter of fundamental importance in determining an appropriate sentence. The maintenance of Australia's border security is dependent upon the integrity of Customs officers who are the sentinels of the system. A Customs officer is in a position of authority and trust. Customs officers in the position of the respondent are entrusted with specialised knowledge of the detection and clearance processes of the Australian Customs and Border Protection Service. The abuse by a Customs officer of the trust reposed in him by misusing his knowledge to facilitate the importation into Australia of border-controlled precursors and prohibited drugs is a very serious crime, as is the bribery of a Customs officer. These offences undermine the very core of our Nation's border protection and other Customs officers must be deterred from engaging in similar conduct.”

The remarks of James J in R v Standen [2011] NSWSC 1422 are also relevant in characterising this offender’s breach of trust:

“A matter seriously aggravating the prisoner's criminality was his misuse of knowledge and contacts he had acquired in his career as a law enforcement officer and the abuse of his position with the New South Wales Crime Commission. As an Assistant Director Investigations with the New South Wales Crime Commission one of his duties was to investigate drug trafficking, that is criminal conduct of the very sort in which he engaged.”

The commission of the importation offence by the offender whilst employed as an ACBPS officer in dereliction of his public duties he was entrusted to discharge and in circumstances where he used knowledge and information that he had gained from his position as an ACBPS officer are serious aggravating factors. This was a gross breach of trust.

He was one of the three senior Customs officers involved in the conspiracy and one of four in the “overarching criminal enterprise”. I am satisfied his position in the overarching hierarchy in comparison with other corrupt Customs officers was below Lamella and C. Cranney but above Katralis. I am satisfied Lamella was a principal who held a most senior position in the management of the “overarching criminal enterprise” and involved a conspiracy offence for which he was sentenced and this conspiracy. His position in the two conspiracies was pivotal.

The Bribery Offence of Abuse of Office Offences

117. Under the heading, “Offences Specific to Valsamakis”, his Honour concluded inter alia:

1. The bribery offence was committed for the purpose of furthering the conspiracy; the Crown, his Honour noted, agreed that the sentence should be made concurrent with the sentence for the conspiracy offence.

2. The two abuse of office offences were not related to the conspiracy, the details of which are provided at [27]-[28] above.

3. Whilst the applicant did not receive a financial benefit in respect of the abuse of office offences, the conduct exploited and seriously undermined the integrity of the ACBPS investigation systems and had the potential to bring the ACBPS into disrepute and undermine public confidence in the ACBPS. Additionally, the misuse of the AUSTRAC form had the potential to cause financial and possibly physical damage to a member (or members) of the public.

118. The sentencing judge observed at 43:

Both of these offences are distinct from any offence committed in the course of achieving the object of the conspiracy. They are however consistent with the extent of corruption within Customs and a part of the “overarching criminal enterprise” that existed therein. Both offences involve a serious breach of trust by a government official. It is appropriate when taking into account the principle of totality that there be a degree of accumulation and concurrency of the sentences to be imposed in respect of each of these offences, and the sentence to be imposed for the conspiracy offence.

Subjective Factors

119. The Remarks on Sentence, as earlier noted (at [31]), addressed the relevant subjective factors relating to the Applicant (AB 185-188).

Mitigating Factors

120. The sentencing judge proceeded to examine mitigating factors at AB 189-192. These related to the applicant’s guilty pleas entered in the Local Court on 22 January 2014, his contrition, and the issue of “Assistance to Authorities/Degree of Cooperation” at AB 191-192.

Hardship in Custody

121. In relation to the issue of hardship in custody, his Honour noted the restrictions and conditions that affected and would continue to apply to the applicant in custody given that he was housed in protection.

122. The details as to the restrictions on time out of his cell were set out in the Remarks: AB 195-6. As earlier noted (at [60]), his Honour concluded that the applicant would suffer hardship in custody that exceeded that experienced by prisoners in the general prison populations for reasons stated in the Remarks.

123. The sentencing judge then addressed the issue of parity: AB 197-201. Before examining his analysis on that issue, I note that no submission was made, nor in my opinion could have been made, to the effect that his Honour erred in his identification or analysis of the facts and circumstances relevant to the sentencing of the applicant.

(f) Parity

124. Hanley DCJ commenced his consideration of the parity principle and its application to the applicant’s case by stating at 61:

The difficulty [sic] issue in sentencing these offenders is whether the sentence received by other offenders, primarily another corrupt Customs officer Paul Lamella, is an appropriate consideration in determining the sentence, particularly of the offender Valsamakis.

125. His Honour then proceeded to identify relevant matters. These are summarised as follows:

1. The fact that Lamella has been sentenced in respect of “other offences”, that is he was sentenced in respect of the three importations conducted between June 2009 and June 2010. In that regard, his Honour considered whether the sentence Lamella received was a relevant consideration in applying the concept of parity in sentencing the three offenders (the applicant, D. Harb and Napoli).

2. On the basis that it was appropriate to take the sentence imposed on Lamella into account, his Honour noted that this Court dismissed the Crown appeal against sentence in Lamella’s case and found the overall sentence was within the legitimate discretion but found the non-parole period was “manifestly inadequate”.

3. That if it was appropriate to take into account Lamella’s sentence for the conspiracy offence and the offences for which the applicant and his co-offenders were to be sentenced then relevant points of distinction had to be taken into account. These included: (i) that different offences were committed; (ii) different quantities of precursor were involved; (iii) different roles were performed by the various offenders. Such matters bore upon the extent to which Lamella’s sentence was relevant when applying the principle of parity in the sentencing process.

4. Whilst both the applicant and Lamella had been charged with and pleaded guilty in respect of conspiracy to import offences the following additional matters were taken into account:

1. The methods of importation were different. The offender Lamella employed the first of the two importation methods referred to in [17]-[18] above. This involved Lamella supplying information, tutoring couriers, utilising his knowledge as a Customs officer and providing documentation to the couriers to subvert the procedures designed to expose such illegal importations. On the other hand, the applicant was involved in importations that involved the second method referred to in [19] above. This entailed the performance of activities by him and others which were designed to subvert specific detection procedures.

2. The rolled-up conspiracy offence committed by Lamella involved three importations using different couriers each involving 10 kg of tablets that converted to a total of 4.8 and 7.35 kg of pure pseudoephedrine. The applicant, as earlier noted, was party to a rolled-up conspiracy offence that involved five planned importations of cold and flu tablets containing a considerably greater total weight, namely 90.1 kg of pure pseudoephedrine.

126. In addition, the sentencing judge noted the following matters:

1. The offender, Lamella, knew the exact amounts of precursor that he and his co-offender were organising to import. Whilst the applicant was not aware of the exact amount planned to be imported he knew that the amounts must have been “substantial”.

2. In the hierarchy of offenders, as earlier noted, Lamella’s role was at a more senior level to the applicant in the conspiracy offence with which he was charged.

3. The differential charging of Lamella and the applicant meant that Lamella was not charged with and therefore was not sentenced on the basis of a conspiracy offence that involved the abovementioned five importations of 90.1 kg of pure pseudoephedrine with which the applicant had been charged.

127. The basis upon which his Honour proceeded was made clear at 64:

In relation to one above [a reference to issue 1 referred to at AB 197, namely, the fact that Lamella was sentenced “in respect of other offences”] the Crown submits that I have to look at issues of parity as best as I am able to (18 December 2014 at T42 line 4). I accept his submission. Accordingly, I am satisfied that when sentencing these offenders it is appropriate I have regard to the sentences imposed in relation to the offenders involved in the other conspiracy embraced by the “overarching criminal enterprise” as the Crown has characterised it. In particular the sentence imposed by Judge Sweeney upon Lamella on 6 February 2014 is relevant particularly in respect of the sentence to be imposed upon Valsamakis.

128. His Honour then proceeded to consider the issue as to how he could take Lamella’s sentence into account, having regard to this Court’s dismissal of the Crown appeal in Lamella’s case. He stated that he would take into account “the overall sentences relevant for the purposes of parity”: AB 201. (As noted above, whilst this Court in Lamella concluded that the non-parole period of 4 years was inadequate, in exercise of its residual discretion the Court decided not to intervene). His Honour observed at 65:

“In observing the principle of parity these offenders cannot receive a reduction in sentence by comparison to Lamella’s non-parole period that result in their respective sentences being ‘reduced to a level that would make it also patently inadequate’ (see Hoeben CJ at CL in Lau v R [2014] NSWCCA 179 citing Green v Queen [2011] HCA 49. See also Campbell JA in Jimmy v R [2010] NSWCCA 60, point 3 at [203].

129. As to the quantity of precursor, his Honour observed at 65-66:

For the purpose of applying the parity principle I am satisfied the difference in the quantity of the precursor imported is a factor that can distinguish the two conspiratorial offences, however both are substantial amounts and by reference to quantity each of these offences falls towards the upper end of seriousness.

130. His Honour then referred to the fact that the quantities of pseudoephedrine were relevant in determining the criminality but that caution was required in sentencing so as to avoid focusing too much on the quantities involved. The object of the conspiracy and the role played by respective participants in achieving it, his Honour observed, were factors by which the objective seriousness of the offending can be assessed: AB 202.

131. As to role and hierarchy, his Honour made findings as to the importance of the role played by Lamella and the participation of the applicant in the respective conspiracies with which each had been involved. As earlier noted, Lamella, he considered, played a more senior role in the hierarchy of offenders in the conspiracy to which he was a party. However he considered that the applicant played an important role in the conspiracy he participated in, but that his role was less serious on a comparison basis with Lamella’s role in the conspiracy for which he was sentenced.

Applicant’s Submissions on Parity

132. Mr Ramage, in his written submissions, submitted that the applicant had a justified sense of grievance in relation to the sentence imposed upon his client having regard to the sentences imposed on Lamella and Katralis. Mr Ramage submitted that Lamella had held the most senior position in an overarching conspiracy. It was contended that Hanley DCJ determined that the applicant, on the material before him, was below Lamella and C. Cranney in the overarching conspiracy (but above Katralis). It was observed in submissions that Hanley DCJ concluded that “Lamella was a principal who held a most senior position in the management of the overarching criminal enterprise…”: ROS at p 64. Further, his position in the two conspiracies was said to be pivotal. In these respects Hanley DCJ stated:

“… Although he has not been prosecuted and therefore not sentenced for his role in this conspiracy it is clear from the agreed facts that the offender Lamella was a principal, an instigator and pivotal in recruiting, dealing with, meeting and organising all of the other conspirators at some level during the commission of this offence. Although he was less senior in rank to Valsamakis within Customs he had a more senior position within the management and hierarchy of the conspirators.

The fact that Lamella has not been prosecuted for his significant criminal participation in these offences is irrelevant in this sentencing exercise except for the fact that it underlines his substantial role in the overarching criminal enterprise and reinforces the assessment of his role by her Honour Judge Sweeny in respect of the offences for which she sentenced him. This is relevant for comparison with the roles played by the respective conspirators in the principal offence before me.” (ROS at p 64)

133. Mr Ramage submitted:

1. That the sentencing judge in relation to the applicant was not taken to all the material which set out the extent of Lamella’s involvement and his role involving the applicant. It was submitted that this Court should do so in the present application.

2. The parity principle has application even if the comparison is not between co-offenders in the true sense and can extend to persons who are involved in the same criminal enterprise: Jimmy v R, supra, per Campbell JA.

3. The sentence imposed on Lamella was said to have “obviously ranked high in the consideration of the sentencing judge as to the appropriate sentence to be imposed…”: Applicant’s Written Submissions at [18].

Crown Submissions on Parity

134. The Crown noted at [19] of its Written Submissions that the sentencing judge had observed that, whilst the parity principle may apply to offenders who were not co‑accused in the strict sense, nevertheless there were limitations upon the extent to which the principle could be applied to the sentencing of the applicant. Reliance in this respect was placed upon the observations of the plurality (French CJ, Crennan and Kiefel JJ) in Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at [30].

135. The Crown additionally noted the observations of Campbell JA in Jimmy v R at [203] as to the existence of “significant limitations” on the reduction of a sentence that can operate where a co-offender has committed a different crime.

136. The Crown contended that in the application of the parity principle it was not open to Hanley DCJ, as suggested in the written submissions for the applicant, to substitute any conclusions or findings expressed or made by him as to the criminality of Lamella, for the findings made by Sweeney DCJ in respect of Lamella when sentencing him. This Court’s observations in R v Chandler; Chandler v R [2012] NSWCCA 135 at [80]-[81] were noted (discussed below).

137. The Crown emphasised that there were a number of differences between the offending by the applicant and that of Lamella. Such differences, it submitted, justified the approach of the sentencing judge, and when taken into account, the Crown contended, no objective justification for a sense of grievance existed.

138. The Crown noted that in the written submissions for the applicant in relation to Ground 1 (at [14]), reliance was placed, contrary to the principles stated in R v Chandler, supra, not upon findings made by the sentencing judge (her Honour Sweeney DCJ) in her Remarks on Sentence with respect to Lamella but upon comments that were made by Hanley DCJ in relation to Lamella when sentencing the applicant.

139. The Crown noted in its oral submissions, that there should be brought into account the fact that the entire investigation sequentially led to the charging of a number of Customs officers, including the applicant. A number of them pleaded guilty and provided assistance to the authorities in a staged way. The roles and activities of Lamella, it was submitted, were to be considered in the context of the first scheme referred in paras [17]-[18] above, whereas the applicant’s participation in the importations with which he was involved occurred in relation to the second scheme, which involved different importations to those that Lamella was charged.

140. In the assessment of the parity ground raised by the applicant, the Crown also distinguished the overall or wider criminal enterprise from the particular schemes or methodologies employed. It submitted that this is particularly so concerning Lamella in relation to whom the rolled-up conspiracy charge was confined to the three importations in 2009 and 2010 using different couriers and involving, as noted above, 10 kg of tablets that converted to between a total of 4.8 and 7.35 kg of pure pseudoephedrine. The rolled up conspiracy offence to which the applicant pleaded guilty in contrast involved 90.1 kg of pure pseudoephedrine committed using the second scheme.

141. The Crown observed that Hanley DCJ had regard to the overall wider enterprise; the different charges; the performance of different roles by Lamella and the applicant; the differential facts underpinning the criminality involved in the offending including the different methodologies employed by the relevant corrupt officers including D Harb, Lamella, the applicant and C. Cranney.

134. By the time the applicant was sentenced by Hanley DCJ the Crown noted that more information had been revealed by the investigations than had existed as at the time Sweeney DCJ sentenced Lamella.

135. The Crown submission accordingly was that Hanley DCJ took into account parity insofar as his Honour was able but his Honour was mindful of and took into account the difficulties that existed in attempting to apply the parity principle where the relevant persons, though involved in an overall enterprise, were charged with different offences with each performing different roles and each involving different objective criminality.

Consideration

144. The jurisprudential basis for the parity principle and the factors that influence its application are well established. The following propositions are derived from the relevant caselaw:

1. The parity principle gives effect to and expresses the notion of equal justice and is one that requires that like offenders should be treated in a like manner (Green (supra) at [28] per French CJ, Crennan and Kiefel JJ).

2. The principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances (Postiglione v The Queen [1997] 189 CLR 295 at 301 per Dawson and Gaudron JJ and Green at [28]).

3. The application of the principle is governed by considerations of substance rather than form – identity of charge against the offender whose sentences are compared is not a requisite condition for its application (Green at [30]).

4. There may nevertheless be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes:

The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co‑offender who has been charged with an offence that is less serious than that of the appellant.  The existence of those difficulties may be accepted.  So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions.  Those practical difficulties and limitations, however, do not exclude the operation of the parity principle.  The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged. (Green at [30])

5. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of the disparity (Green at [31]).

6. An appellate court will refuse to intervene where the disparity is justified between co-offenders based upon factors such as age, background criminal history, general character and the part each played in the relevant criminal conduct or enterprise (Green at [31]).

7. The qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders are matters an appellate court will take into account (Green at [32]).

8. Unjustified disparity is an infringement of the equal justice norm and constitutes appealable error although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight (Green at [32]).

145. In the present case the differences in the charges against Lamella and the applicant were such as to limit the capacity of the sentencing judge to compare directly the sentences imposed on each. The differences were significant.

146. Hanley DCJ discussed Lamella’s involvement in the importations occurring between June 2009 and June 2012, the three importations in 2009-2010 to which Lamella pleaded guilty and his alleged involvement in the five importations the subject of the charges against the applicant. As discussed above, he was only charged and sentenced in respect of his involvement in relation to the three importations between June 2009 and June 2010. He was not charged in relation to the five importations between December 2011 and June 2012.

147. Differential charging of two persons involved in a common enterprise may result in a difference in the sentences imposed on each of them. That result may be a function of prosecutorial discretion and where that is the case a limitation on the application of the parity principle exists. That is a matter of particular importance in the present case given, as earlier discussed, the differences between the conspiracy charges against the applicant and the charges relevant to Lamella and Katralis.

148. In Jimmy v R, supra, Campbell JA observed at [125]:

There are other limitations on a judge being able to compare directly the sentences of people charged with different offences. There will be occasions when one person involved in a criminal enterprise is charged with a lesser offence than another in what might be called a comparatively clear exercise of prosecutor’s discretion. Such an occasion arises when, even though on the available admissible evidence it would have been open to charge the first of those people with a more serious offence than was actually charged, the prosecutor decided not to do so, perhaps as part of a plea bargain, perhaps as a trade-off for the person charged providing assistance, perhaps because of matters personal to that person like youth, perhaps for other reasons. There will be other occasions when one person involved in the criminal enterprise is charged with a lesser offence than another in circumstances where the available admissible evidence is such that even the most assiduous prosecutor could not realistically have expected to prove a more serious offence against the first of those people. There will be other occasions that have some elements of both of these factual scenarios. It will often be impossible for a judge to know whether the charging of two people with different offences is truly, or wholly, a matter of discretion on the part of the prosecutor. In comparing the sentences of co-offenders courts are well able to factor out the effect on the sentences of differences that the court knows about in the objective circumstances of involvement of the respective co-offenders in the crime, and in the subjective circumstances of the offenders. But it would not be practicable for a court to try to apply an extended version of the parity principle by comparing the sentences of two people involved in the common enterprise and factoring out the extent to which the difference in the sentences is a function of prosecutorial discretion. It cannot carry out that task when it does not know to what extent it is truly a discretion, rather than something else, that is the reason for the difference in the charges. In the result, to the extent to which differences in sentence arise from differences in the charges brought against two people involved in the one common criminal enterprise, those differences cannot be corrected for by an application of the parity principle.

149. The submissions for the applicant in respect of the parity ground at least impliedly proceed upon the basis that a comparison between the sentences in respect of the rolled up conspiracy charges respectively against Lamella and the applicant may be readily made. However, as discussed above, and as recognised by the sentencing judge, by reason of the fact that such charges were in a number of respects materially different, the parity principle could have only very limited direct application. This was a matter to which the sentencing judge gave careful attention.

150. His Honour identified as a “difficult issue” whether the sentences received by other offenders, primarily Lamella, were appropriate for consideration in determining the sentence to be imposed upon the applicant: AB 197.

151. His Honour then proceeded, having identified all relevant similarities and differences in the applicant’s offending and that of the other offenders (including Lamella), upon the basis that he would have regard to the sentences imposed on them accepting that the sentence imposed on Lamella was “relevant for the purpose of parity”: AB 201.

152. No discrete error was identified in the submissions for the applicant in relation to his Honour’s approach or as to his analysis or identification of the relevant similarities and differences. The differences to which his Honour referred were, as I have indicated above, of significance. They clearly constituted limitations upon his capacity as the sentencing judge to directly use the sentence imposed upon Lamella as a basis of comparison, as his Honour expressly stated.

153. His Honour proceeded to articulate the appropriate approach to be followed: AB 197. That involved the determination of an appropriate sentence for each of the three offenders (including the applicant), taking into account all the relevant factors that he had identified as required by s 16A of the Crimes Act (Cth). Having done so his Honour said that he would then determine “whether any of the offenders’ sentences should be adjusted to take into account the principle of parity in sentence by reference to sentences imposed on other offenders including for offences committed within the “overarching criminal enterprise”.

154. As noted above, the majority in Green stated that the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. In a severity appeal, the Court will refuse to intervene where the disparity is justified by relevant differences. The fact that Lamella was not charged with the same criminal conduct as the applicant is an important objective factor to be taken into account. That this resulted from an exercise of prosecutorial discretion is a matter which is not open to this Court to examine: see French CJ, Crennan and Kiefel JJ in Green at [30].

155. The submissions for the applicant emphasised the observations of Hanley DCJ as to Lamella’s role in the overall conspiracy and they did not give due attention to the factual findings of Sweeney DCJ concerning the particular conspiracy offence with which Lamella was charged and upon which he was sentenced. Such an approach is contrary to the way in which the parity principle is to be applied. In R v Chandler; Chandler v R, supra, Hoeben JA, as his Honour then was, stated at [80]:

The sentence imposed by her Honour was based on those findings. In order to determine whether the parity principle applies, it is necessary to not only consider the factual background to the offences and the charges which were brought against the applicant and Ms Leota-Lu, but to also have regard to the findings made in each case by the sentencing judge. It does not involve a process by the later sentencing judge or this Court of going behind the findings to assess whether, and if so to what extent, those findings were available. (my emphasis)

156. Accordingly, in relation to the parity issue in this case, the findings of Sweeney DCJ in relation to Lamella are to be accepted and brought into account. Whilst the observations made by Hanley DCJ as to Lamella’s role, activities and involvement generally in the overarching conspiracy were considered by his Honour they were not available and could not be used to go behind the findings of Sweeney DCJ.

157. On the Crown appeal against sentence in Lamella, apart from the inadequacy of the non-parole period, this Court determined that on the findings made, the sentence imposed upon Lamella was a sentence of a severity that was appropriate in all the circumstances of his offending as charged.

158. In sentencing the applicant, Hanley DCJ recognised and considered the differences in the facts concerning the conspiracy to import charges against Lamella and the facts concerning the conspiracy offence with which the applicant was charged and his Honour did so for the purpose of assessing their significance to the application of the parity principle.

159. For the reasons stated above, I conclude that no sentencing error has been established in the application of the parity principle by reference to the sentencing of either Lamella or Katralis.

160. Ground 1 in my opinion is without merit and should also be dismissed.

Ground 1A: There was no parity with the sentence passed on Christopher Phillip Cranney on 20th November 2015

The Sentences Imposed upon Christopher Cranney

161. At the time of sentencing the applicant, Hanley DCJ was, of course, not concerned with the issue of parity raised by Ground 1A as C. Cranney had not been sentenced at that time. Accordingly, there was no ground for alleging error by his Honour based on considerations of parity arising from the sentencing of C. Cranney.

162. In circumstances where a subsequent sentence has been imposed on a co-accused such as to give rise to a justifiable sense of grievance on the part of the earlier sentenced co-accused, it has been accepted that a court of appeal may intervene to reduce the sentence: R v Henderson [2014] QCA 12 at [115] per Henry J.

163. In that case, Henry J observed at [116] that whether a lack of parity between sentences imposed warrants the intervention of this Court on an application for leave to appeal against sentence, does not, of course, merely involve a matter of the mathematical comparison of the sentences imposed but requires a consideration of the proportionality of the sentences imposed making due allowance for the different circumstances of the co-offenders in question and their different degrees of criminality (see: Postiglione, supra at 301-302).

164. In the Further or Amended Submissions on behalf of the Applicant filed on 29 February 2016 it was submitted that the applicant was entitled to hold a justifiable sense of grievance when his sentence in respect of the rolled‑up conspiracy offence, which had a starting point of a period of imprisonment of 16 years, is compared to the sentence imposed on C. Cranney after trial before Whitford DCJ on 20 November 2015, the latter sentence involving a head sentence of 14 years with a non-parole period of 8 years and 9 months.

165. Although C. Cranney received a longer sentence than the applicant (who had the advantage of the 50% combined discount on sentence as discussed above) it was submitted for the applicant:

“…on a true comparison with his situation, role and position and action as part of the overarching conspiracy and his denial … of any guilt, the applicant is entitled to feel that he has not been fairly treated.”: Further Amended Submissions at p 1.

166. C. Cranney was charged on indictment of having committed two offences of conspiring with others to import pseudoephedrine in a commercial quantity. The first conspiracy charged by Count 1 related to the failed importation in December 2011 with which the applicant had been involved: see [24(1)] above.

167. The conspiracy charged by Count 2 involved four importations occurring in March and June 2012 being the same importations with which the applicant was involved. He was additionally charged with three counts of dishonestly agreeing to receive or obtain a benefit for himself, namely money, with the intention that the exercise of his duties as a Commonwealth public official would be influenced. These were Counts 3, 4 and 5 on the indictment.

168. Following a trial, on 9 June 2015 the jury found C. Cranney not guilty of Counts 1 and 3 and guilty of Counts 2, 4 and 5.

169. On 20 November 2015, he and another co-offender, Huynh, appeared for sentence before Whitford DCJ in respect of the conspiracy offence, Count 2.

170. C. Cranney was also sentenced on that date in respect of the two counts of dishonestly agreeing to receive or obtain a benefit for himself.

171. His Honour noted that the Customs officers involved in the Count 2 combination included Lamella, the applicant, and C. Cranney. His Honour observed at [8]:

“…within Customs, Mr Cranney was the most senior of the three.”

172. It was also noted that by early 2010, C. Cranney had been working as a Customs officer for almost ten years. As noted in [14], he became the Team Leader of the ABS Team at the Airport. The applicant had been transferred into the ABS Team after C. Cranney became Team Leader.

173. In early 2012 C. Cranney, Lamella and the applicant met several times, both at the airport and elsewhere, to discuss the prospect of facilitating an importation or importations of pseudoephedrine before C. Cranney was due to leave the ABS Team in March 2012 and before the applicant was due to be transferred out of that team in August 2012: at [12].

174. In the course of his Remarks on Sentence, Whitford DCJ made a number of findings. They included the following:

1. Lamella was the “hub” around which the entire conspiracy revolved. He co-ordinated matters both with the Airport personnel (C. Cranney, the applicant and D Harb) and with external participants (Huynh and Napoli): at [19].

2. On 22 February 2012, the applicant and C. Cranney exchanged a series of coded text messages regarding the organisation of the importation. The latter informed the applicant of the need to stay “at arm’s length” from Lamella and others involved in the importation and that they should let others do the hard work and take the risks: at [23].

3. As both C. Cranney and the applicant were due to be transferred out of the ABS Team in the months following the March importation, it was decided that they would try to do another importation as soon as possible: at [43].

4. On the morning of 5 June 2012, the applicant and Lamella were again working in the ABS Team, C. Cranney was again working as supervisor in the Customs Arrivals Hall and D Harb was working as a baggage handler: at [57].

5. Lamella and the applicant were again both involved in monitoring the CCTV cameras in the ABS room from 6:00am to 8:00am during which period they kept the cameras directed away from the unloading of the relevant Thai Airways flight (that had arrived with a courier on board): at [58].

6. On 6 June 2012 at 5:05 am, C. Cranney sent both the applicant and Lamella a text message asking them to meet for coffee. When Lamella and the applicant met with C. Cranney, there was another Customs officer present who informed them about a Customs investigation that was underway in relation to two passengers who had not collected their luggage from a flight on 4 June, and a baggage handler who had been removing luggage from flights: at [62].

7. Later that morning, between 5:56am and 5:59am, C. Cranney and Lamella exchanged SMS messages about meeting up. The applicant recalled that about this time he and C. Cranney met outside the Customs Secure Work Area or in one of the corridors at the Airport. C. Cranney told him that he and Lamella needed to take care of the situation in “any shape or way possible”: at [64].

8. Both C. Cranney and Huynh, with their co-conspirators, performed vital roles in seeking to achieve the criminal objects of the combination and that each was to some degree responsible for the other’s actions in pursuing that object: at [83].

9. Lamella was obviously central to the conception and execution of the conspiracy in that he was the person with contacts within and outside the Airport. His role was critical to the success of the operation: at [84].

10. In relation to the roles of the applicant and C. Cranney, Whitford DCJ observed at [86]:

“It seems to me that the roles of Valsamakis and Mr Cranney were substantially indistinquishable and, save for one not insignificant distinction, their objective criminality was very similar in my view. The distinction lies in their respective positions within the hierarchy of the Customs service.”

Whitford DCJ referred to the observations of Hanley DCJ, when sentencing the applicant, noting that the offence occurred whilst he was employed as an ACBPS officer in dereliction of his public duties with him using knowledge and information that he had gained from his position as such. These were considered to be serious aggravating factors. His conduct, it was concluded, involved a gross breach of trust. Whitford DCJ then observed at [87]:

“Those remarks apply with even greater force in the case of Mr Cranney on account of his more senior rank within that service.”

11. Whitford DCJ further observed at [88]:

“I am satisfied that Mr Cranney was deliberately and enthusiastically involved in all four of the importations carried out in pursuit of the conspiracy. He acted together with his two colleagues to circumvent the screening and investigative systems in place at SIA [the Airport] to ensure, so far as possible, that the couriers were able to pass through the airport without being detected. In doing so, he participated in the active subversion of the screening and detection systems designed to prevent such importations.”

12. Whitford DCJ set out his findings in respect of the role of C. Cranney at [100]:

“Throughout the period of the conspiracy Mr Cranney occupied relatively senior, supervisory roles within the customs service that encompassed the supervision at different times of different areas of the airport including the ABS room, the control room and client services. His position gave him the capacity to monitor what was occurring in other areas of the airport and to allocate staff, in particular, on some of the days of the four importations. The fact that he might be described as being less ‘hands on’ than either Lamella or Valsamakis on the days of the importations does not reduce his criminal culpability. He had expressed a calculated intention to remain ‘at arm’s length’. Rather, the senior positions that he occupied permitted him to misuse his authority to facilitate the objects of the conspiracy. I am satisfied that he was standing by, ready to do anything within the scope of the capacity afforded him by his seniority to assist the successful execution of the importations. This misuse of his position, and his seniority, increases his criminal culpability in my assessment.”

13. Whitford DCJ further noted that throughout the period of the conspiracy C. Cranney at [103]:

“…blatantly abused his privileged position and access to sensitive information and he ignored his specific responsibilities, which included counteracting ‘threats to the border posed by illegal activity involving persons travelling through or employed in the environs of the airport’. This conduct was considered and pre-meditated, and was not committed in a sudden lapse of judgment.”

14. In relation to subjective circumstances, his Honour accepted the assessment of a psychologist that C. Cranney had good rehabilitation prospects and was at low risk of re-offending. However, his Honour noted that there were two matters that undermined that assessment: ROS at [127]. The first was that C. Cranney had apparently continued to dispute aspects of his involvement in the offending. Secondly, whilst he had expressed remorse in the sense of regret for the consequences on his family and of his present situation, he had expressed no remorse for, or insight into, the broader consequences of his conduct or the failings which it represented by his abuse of the trust and authority reposed in him.

175. In respect of the offence of conspiracy to import a commercial quantity of the border controlled precursor, as earlier noted, C. Cranney was convicted and was sentenced to a term of imprisonment of 14 years commencing 12 May 2014.

176. For the first offence of receiving a bribe, he was sentenced to a term of imprisonment of 4 years and 6 months commencing on 12 May 2014.

177. For the second offence of receiving a bribe, he was sentenced to a term of imprisonment of 5 years also commencing 12 May 2014.

178. His Honour fixed a non-parole period of 8 years and 9 months commencing 12 May 2014 and expiring on 11 February 2023. He recommended release to parole on that day. Accordingly there was to be a period of 5 years and 3 months on parole. The sentence was to expire on 11 May 2028.

Submissions for the Applicant

179. The written submissions noted several of the points referred to in [172] above. In addition, the following matters were included in the applicant’s submissions:

1. Although C. Cranney received a total of $140,000, no cash had been surrendered by him or seized. This was in contrast to the applicant who surrendered monies (as discussed at 31(h)above).

2. The sentencing judge identified the “worst features” of the offending which included the use by C. Cranney of his position as a senior Customs officer of 11 or more years standing to actively corrupt a central and frontline investigative unit.

3. The sentencing judge observed that it was a significant fact that C. Cranney held the most senior position in the ABS Team.

4. In contrast to C. Cranney, the applicant immediately commenced assisting police following his arrest which evidenced his contrition and desire to facilitate the interests of justice. He continued thereafter to assist police culminating in the guilty plea. This warranted a full discount on sentence of 25%. The applicant’s assistance resulted in pleas of guilty by two other offenders.

5. The applicant made positive statements to the Court evidencing his accepting responsibility for his actions both to the author of the pre-sentence report and directly in a letter to the Court. He appreciated the extent of the consequences of such action to his family and the damage to his former and honest work colleagues.

6. Unlike Lamella and C. Cranney, the applicant did not recruit others to join in the conspiracy.

180. In his oral submissions, Mr Ramage emphasised that C. Cranney was the most senior officer in the ABS Team. He also noted the fact that the applicant had provided significant assistance and given evidence in the trial of C. Cranney. Against that background it was submitted that C. Cranney had been dealt with on sentence much more leniently than the applicant: T 9:40-45. Mr Ramage observed that the non-parole period in the sentence imposed on C. Cranney represented 62.5% of the total sentence (14 years) and that the applicant’s non-parole period represented 66.66% of the total term of imprisonment imposed on him (with a starting point of 16 years): T 10:5-10.

Crown Submissions

181. The Crown observed that one distinguishing feature between C. Cranney and the applicant was that C. Cranney was found not guilty of involvement in the conspiracy charge in respect of the first (failed) importation. He was sentenced in respect of a rolled‑up conspiracy offence that involved four later importations.

182. The Crown noted that Whitford DCJ placed great weight upon both the seniority and the role played by C. Cranney, and that otherwise the respective criminality and roles of C. Cranney and the applicant, and what they did in the course of pursuing the conspiracy, were identical or indistinguishable. It was C. Cranney’s level of seniority that made his offending more serious: 1 March 2016 at T 16:20-25.

183. The Crown noted that Whitford DCJ placed emphasis upon the fact that although C. Cranney was not performing a hands-on role of the same kind the applicant performed, he nonetheless stood ready to do whatever may come up in the course of the conspiracy by the use of his position. The Crown noted that there was a counter‑balancing aspect:

“… The applicant himself occupied an Acting Team Leader role for at least one of the importations which occurred, which was the 9th of March importation, which in terms of the four that involved Mr Cranney, it was the first in time of those actual importations so there was 9 March and then there were successive importations on 4, 5 and 6 June.

On the 9 March date the applicant was the acting team leader of the ABS team and he was the one who was tasked with ensuring that the activities of that team were not monitoring the incoming flight and surveilling it with the CCTV cameras that were available at the airport. Mr Cranney was found guilty of his involvement in the conspiracy at that stage, but his actual role on that day he too was acting up in a higher role and wasn’t the acting team leader of the ABS team, he was elsewhere performing other duties.” (T 16:29-41)

184. The Crown relied upon these facts as demonstrating that it is not simply a case of the applicant always being in a position where he was subordinate or acting solely under the direction of other persons: T 16:40-50. In that way, the Crown submitted, Whitford DCJ whilst comparing the respective seniority or roles played by C. Cranney and the applicant, also made the finding that they were essentially equal in other respects.

185. The Crown noted:

“In terms of the overall starting points the submission the respondent makes is that it does not demonstrate that there has been a failure to apply the principle of parity or that there would be a justifiable sense of grievance by the applicant to look at the fact that Mr Cranney had a starting point of 14 years for his conspiracy where the applicant had a starting point of 16 years. Mr Cranney did not provide any assistance or cooperation, didn’t plead guilty, and therefore there was no need for the court to take into account the application of a discount and then to assess what the final sentence would be to determine whether that still remained a sentence of a severity appropriate in all the circumstances …” (T 16:49-T 17-8)

Consideration

186. This Court has observed that in some cases intervention has been sought on the basis of the parity principle, the Court has spoken of the need for “gross”, masked”, “glaring” or “manifest” disparity” parity to be established: England v R; Phanith [2009] NSWCCA 274 at [61] per Howie J (McClellan CJ at CL and Fullerton J agreeing).

187. In Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 at [7], Howie J referred to appeals to this Court on grounds of suggested disparity and observed:

The applicant’s counsel accepted before this Court that the sentence imposed upon his client was within range and that there was no error apparent in the sentencing remarks. A complaint of disparity accepts that the sentence imposed on the applicant cannot be challenged. It is the sentence imposed upon a co-offender that gives rise to a sense of injustice, not the sentence imposed upon the applicant. The applicant also accepts that the Court’s power to intervene to redress disparity is discretionary and that it will not necessarily act where the co-offender’s sentence is so inadequate that this Court should not take it into account.

188. In my opinion there is no proper basis for a conclusion of marked or manifest disparity between the sentences imposed upon the applicant in respect of the conspiracy offence and the sentence imposed upon C. Cranney in respect of the same offence. In this regard there are three matters to be noted:

1. The fact that the applicant entered a guilty plea to the conspiracy offence insofar as it included, inter alia, the first (failed) importation in December 2011. This stands in contrast to the jury’s verdict which as noted above was that C. Cranney was not guilty in relation to the count against him in respect of the failed importation (the subject of Count 1 in the trial of C. Cranney).

2. The findings made by Whitford DCJ on sentence in respect of the objective seriousness of the conspiracy offence (Count 2) of C. Cranney.

3. The assessment of the objective and subjective seriousness of the conspiracy offence by Hanley DCJ prior to the application of the combined discount for the applicant’s guilty plea and assistance.

189. I turn to each of the above matters.

(1) The Failed Importation December 2011

190. Both C. Cranney and the applicant were charged with the same offence of conspiracy to import involving the importations in March and June 2012. Whilst C. Cranney was found not guilty in respect of the first and failed importation of December 2011, the objective seriousness of the applicant’s criminality included the failed or aborted importation. On a question of alleged disparity in sentencing as the applicant asserts in these proceedings, that is a matter that weighs against the applicant when comparing his criminality with that of C Cranney.

191. In relation to the applicant’s participation in that failed importation, he was, of course, to be sentenced, inter alia, for the conspiracy offence, and not merely in respect of particular physical acts in furthering the conspiracy.

192. The jury’s verdict in the Cranney trial of not guilty in respect of Count 1 was not insignificant to the sentence of imprisonment of 14 years imposed on him. It is a matter that must be taken into account in any comparison with the starting point of 16 years applied by Hanley DCJ in respect of the applicant for the sentence to be imposed upon him for the conspiracy that involved the five importations in December 2011, March and June 2012.

193. (2) Sentencing Findings re C. Cranney

194. As has been noted, Whitford DCJ concluded that the roles of the applicant and C. Cranney were “substantially indistinguishable and save for one not insignificant distinction, their objective criminality was very similar…” (ROS at 86).

195. The distinction lay in their respective positions within the hierarchy of the Customs service. Hanley DCJ observed that the breaches by the applicant of the public duties entrusted to him, using information gained from his position as an ACBPS officer, constituted serious aggravating circumstances amounting to a gross breach of trust.

196. Whitford DCJ stated that these comments applied with even greater force in the case of C. Cranney on account of his more senior rank. As the Crown submitted, the applicant held the senior position of acting team leader of the ABS Team in relation to one of the four successful importations, the importation on 9 March 2012. That particular importation involved a considerable quantity of cold and flu tablets (32 to 40 kg (gross); 22.4 to 28.29 kg of pure pseudoephedrine).

197. I accept, as the Crown submitted, that in relation to the importations on 4, 5 and 6 June 2012, the applicant was not merely a subordinate performing directions given to him. He played a very active role in meetings, planning and assisting with the importations and in implementing the planned importations. These matters as well as that referred to in the preceding paragraph, amongst others, must be taken into account in ultimately determining whether there existed a marked disparity that provides a justifiable sense of grievance by the applicant.

(3) The Assessment of the Objective and Subjective Factors by the Sentencing Judge (Hanley DCJ)

198. Hanley DCJ in a detailed judgment considered all relevant factors as required by s 16A of the Crimes Act. As discussed at [154] above, having done so, his Honour then considered whether the sentence should be adjusted to take into account the principle of parity in sentence: AB 203. The combined discount for the plea and assistance was then applied.

199. The DPP, as earlier noted, appealed the sentences imposed upon Lamella. Price J (Garling and Bellew JJ agreeing) observed that the undiscounted starting point for J. Harb’s sentence of 16 years for the single importation was the same as the undiscounted starting point of Lamella’s sentence for the conspiracy offence: at [41]. His Honour then stated:

However, a matter of significant difference in their subjective cases was that the Judge accepted the respondent was genuinely remorseful and was unlikely to re-offend whereas Sorby DCJ, merely noted that Harb had expressed remorse to a psychiatrist, his family and friends. His Honour did not make a specific finding as to the degree of Harb's remorse or as to the unlikelihood of Harb's re-offending. The undiscounted starting point for Katralis' sentence for aiding and abetting the single importation (including the offence on the s 16BA schedule) was 14 years - two years less than the respondent's sentence for conspiracy. In my opinion, the undiscounted starting point of 16 years (including the offences on the s 16BA schedule) was within an appropriate exercise of the Judge's sentencing discretion although towards the lower end of an appropriate range. (my emphasis)

200. As discussed above, in a comparison of the sentences imposed on Lamella and the applicant, the criminality of the applicant’s conspiracy offence in relation to the five importations was different (and at a higher level) than the conspiracy charge involving the thee importations brought against Lamella. An important consideration is that as noted in the above extract from the judgment of Price J, when considering the undiscounted starting point of 16 years in respect of Lamella, his Honour considered that 16 years was within range although “…towards the lower end of an appropriate range”. A starting point of less than 16 years for the more serious offending of the applicant than that of Lamella in relation to the charges against him would, in my assessment, be entirely inappropriate and would fail to properly and adequately reflect the objective seriousness of the applicant’s offending.

201. Accordingly, this is not a case in which the sentence imposed upon C. Cranney in respect of Count 2, a term of imprisonment of 14 years, establishes a marked disparity in sentences. Whilst the senior position held by C Cranney was an important matter to be taken into account in determining the sentence of 14 years imprisonment, there are other matters, discussed above, which must be brought into account. Whilst minds may differ as to precisely where within the appropriate range of sentences the appropriate sentences for C. Cranney and the applicant might lie, I consider both fell within the same range and that there is being no marked disparity shown in respect of the sentences imposed.

202. For the reasons set out above, in my opinion, no proper basis has been established for the contention that a justified sense of grievance exists based upon the sentence imposed upon C. Cranney.

203. Ground 1A in my opinion is without merit and should be dismissed.

Orders

204. I propose the following orders:

1. Leave to appeal against sentence be granted.

2. The appeal be dismissed.

205. R A HULME J: I agree with the orders proposed by Hall J for the reasons his Honour has provided.

**********

Decision last updated: 05 August 2016