Wang v R

[2010] NSWCCA 319

New South Wales
Court of Criminal Appeal

CITATION:	Wang v R [2010] NSWCCA 319
HEARING DATE(S):	5 November 2010
JUDGMENT DATE:	17 December 2010
JUDGMENT OF:	Simpson J at 1; Schmidt J at 2; Howie AJ at 70
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - leave to appeal against sentence - whether error in assessment of the role of the applicant in this offence - no error established - whether there was failure to give an appropriate discount for assistance to authorities and the plea of guilty - no error established - whether sentence imposed for Count 1 was too severe - not established - leave to appeal granted - appeal dismissed
LEGISLATION CITED:	Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 Chan, Lo and Nguyen v R [2010] NSWCCA 153 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Everett v The Queen [1990] HCA 49; (1994) 181 CLR 295 FS v R [2009] NSWCCA 301 Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 Jimmy v R [2010] NSWCCA 60; [2010] 269 ALR 115 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 R v Bateman [2000] NSWSC 915 R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 R v Cartwright (1989) 17 NSWLR 243 R v El Hani [2004] NSWCCA 162 R v Nguyen and Ors [2005] NSWCCA 362; 157 A Crim R 80 R v Nguyen; R v Pham [2010] NSWCCA 238 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1 R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121 R v Tran [2007] QCA 221; 172 A Crim R 436 Wong v The Queen [2001] HCA 64; 207 CLR 584 Yenice v R (1994) 72 A Crim R 234
PARTIES:	Dan Ning Wang - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2009/3749
COUNSEL:	Applicant - Mr Bruce Stratton QC Respondent - Ms S McNaughton
SOLICITORS:	Applicant - George Sten & Co Respondent - Commonwealth Director of Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/11/0145
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ
LOWER COURT DATE OF DECISION:	26 August 2008

- 27 -

IN THE COURT OF
CRIMINAL APPEAL


2009/3749

SIMPSON J
SCHMIDT J
HOWIE AJ

FRIDAY, 17 DECEMBER 2010

WANG v R

JUDGMENT

1 SIMPSON J: I agree with Schmidt J.

2 SCHMIDT J: The applicant pleaded guilty to a charge brought under ss 11.1 and 307.5(1) of the Criminal Code Act 1995 (Cth), of attempting to possess an unlawfully imported commercial quantity of a border controlled drug, cocaine. The applicant seeks leave to appeal from the sentence imposed by Blackmore DCJ for this offence.

3 The maximum penalty for the offence was life imprisonment and/or a fine of $825,000. The applicant was sentenced to 18 years imprisonment, with a non-parole period of 11 years and 6 months, commencing 11 March 2008. The applicant received a discount of 35% for the guilty plea and assistance, of which 15% related to future assistance.

4 The applicant was arrested and charged with the co-accused Yue Ma, who also pleaded guilty to the same offence. Blackmore DCJ imposed a sentence of 15 years imprisonment with a non-parole period of 9 years upon Ms Ma. She, too, received a total 35% discount, of which 6% was for future assistance. Ms Ma has also appealed her sentence.

The grounds of appeal

5 The grounds advanced were:

"1. His Honour erred in assessment of the role of the applicant in this offence;

2. His Honour failed to give the applicant an appropriate discount for her assistance to authorities and the plea of guilty.

3. The sentence imposed for Count 1 was too severe in all the circumstances of the offence."


The evidence

6 The agreed statement of facts referred to a police investigation into a company, Australia/China International Exchange Centre Pty Limited and its director, Frank Hu Yang. $AUD17,192,315.50 remittances were made to various bank accounts in China between November 2006 and February 2008. Police became aware of the company’s impending importation of a shipping container from China, said to contain furniture and handicraft work. On 10 February 2008, the applicant arrived in Sydney from Hong Kong, shortly before her ex husband, Yu Diao. On 2 March, the container arrived in Australia.

7 On examination by the Australian Customs Service the container was found to contain 10 boxes each containing 23-27 vacuum-sealed foil packets, purporting to be Chinese tea. The packets were found to contain cocaine. The cocaine was substituted with an inert substance. The pure weight of the cocaine was found to be 201.2465 kg, with purity ranging from 72.3% to 88.2%, a wholesale value estimated to range between $32.5 million and $45 million and a street value ranging between $50 million and $112.5 million.

8 The applicant contacted Mr Hu before the container arrived in Sydney. They remained in contact and discussed its arrival and unloading and they also met. The applicant arranged for removalists to take the drugs from the container, after it was delivered to premises at Auburn. They were transported to her flat in Rockdale. Ms Ma and the applicant then unpacked them at the flat and discussed their further delivery.

9 The applicant, Ms Ma and Mr Hu were all arrested on 11 March 2008. Mr Yu left the country and has not been apprehended. Nine boxes of the inert substance and part of the tenth box were found at the applicant’s flat, as well as scales and seal bags.

10 The applicant was twice interviewed after her arrest, the second time on 28 April 2009, after she had entered a plea and been committed for sentence. While initially she had denied her involvement, in April 2009 she admitted various involvement, including placing a newspaper advertisement in the Chinese Daily newspaper about unloading the container and taking a sample of the powder for testing, which she gave to her ex-husband.

11 The applicant also gave evidence. She denied having promised to pay Ms Ma $400,000 for her assistance. The applicant claimed that she herself had not been promised any particular payment, but expected to receive more than $100,000.

Ground 1 – His honour erred in the assessment of the role of the applicant in the offence

12 This ground of the appeal was addressed to remarks on sentence that:

"Clearly Ms Wang was a long way further up the chain of command to the position occupied by Ms Ma. She was involved in the operation from the time that she was in China. She was a trusted member of this group, having been formerly married to Mr Diao. She recruited Ms Ma to assist her. Ms Wang was a vital component of the scheme, whereas Ms Ma was merely an accessory ..... (page 7) In my view Ms Wang played a significantly greater role than that played by the offender Ma. Equally her role was a subordinate one to that of Mr Hu, and also that of her former husband Diao."

13 It was argued that these conclusions were erroneous and beyond the scope of the indictment, the applicant not having been charged nor involved with the actual importation of the cocaine, in which she had no active role. It was submitted that while she may have been asked to become involved in the operation while she was in China, the applicant’s involvement did not begin until she was in Australia and that was reflected in the dates contained in the indictment. Her offence was confined to attempting to posses an unlawful import in Australia.

14 It was also argued that his Honour overstated the applicant’s role vis a vis to that of Ms Ma. The involvement of the two offenders was similar. Ms Ma was approached because she had a car and the applicant wanted support from a friend. Ms Ma was not merely an accessory, given her evidence, accepted as truthful, that she was to receive $400,000 for her involvement. The evidence showed that there was little to differentiate between their respective involvement. There was no evidence that Ms Wang was a trusted member of the group who imported the drug. Both she and Ms Ma were at the lower end of the hierarchy of persons involved, taking the greatest risk as the possessors or minders of the drugs. Those higher in the drug organisation had successfully directed the applicant from a distance, in order to avoid detection and prosecution for their offences.

15 The applicant also argued that the view that the offence ranked towards the upper end, while relevant for the importation of the total amount of the drug, was not directly attributable to the applicant’s involvement in the operation. The matters to which reference was made by his Honour were not matters within the applicant’s knowledge at the time of the offence. The result was a failure to appropriately assess the applicant’s role in determining sentence. It was further argued to be relevant that there was no sophistication in this case, there being no attempt to conceal or secrete the boxes of drugs, which were simply placed at the back of the container. Such sophistication would have increased the objective criminality of the offence.

16 In my view this ground of appeal was not made out. There was ample evidence on which it could be concluded that the applicant was an active participant in the operation with Mr Hu and her ex-husband, and no mere accessory.

17 In R v Nguyen; R v Pham [2010] NSWCCA 238, a similar drug offence to that here in question was before the Court, although the quantity and value of the drugs involved was lower, Johnson J, with whom MacFarlane and RA Hulme JJ agreed, observed at [72] and [82]:

"72 The following general propositions emerge from the authorities:

(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];
(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];
(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];
(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24];

(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];

(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];

(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen ; Leung v The Queen at 607-608 [64];

(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];

(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];

(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];

(k) where offenders are not young (Mr Nguyen was 42 years’ old and Ms Pham was 32 years’ old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];

(l) where an offender (such as Ms Pham) is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37];

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;

(n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s.16G Crimes Act 1914 (Cth) : R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at 438 [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40];

(o) insofar as each Respondent asked the sentencing Judge to take into account on sentence offences under s.16BA Crimes Act 1914 (Cth) , it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Attorney General’s Application Under Section 37 Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146: R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 at 550 [28]; Assafari v R [2007] NSWCCA 159 at [9].
82 Although Ms Pham was to be sentenced for attempted possession of a commercial quantity of cocaine (with a similar offence concerning methamphetamine on a s.16BA schedule) it is necessary to consider her involvement in the overall drug smuggling enterprise to determine the degree of moral culpability attaching to the attempted possession offence: El-Ghourani v R at [33]-[37] (see [72](l) above). Of course, the attempted possession offence carries the same maximum penalty as importation of a commercial quantity of a drug, namely life imprisonment."

18 These observations are relevant in this case. The complaint that Blackmore DCJ took account of the applicant’s involvement in the overall drug importation scheme in a way which went beyond the indictment and which was irrelevant to an assessment of the sentence to be imposed, may not be accepted. The matters to which his Honour referred were put before him in the agreed statement of facts and through the evidence which the applicant herself gave. They were undoubtedly relevant on sentence. They provided the foundation for the view which his Honour reached as to the seriousness of the applicant’s offence, committed in Australia as the direct result of her involvement in the overall criminal enterprise, as it commenced in Hong Kong.

19 On the evidence that involvement was not of the kind for which the applicant contended on appeal. The submissions advanced at the sentencing hearing may not be overlooked, nor may the matters identified in the agreed statement of facts and about which the applicant gave evidence, which provided a basis for those submissions. As to the applicant’s role, it was submitted that she could not be described as a main player:

"But certainly she’s well below the main players. She is again clearly above Miss Ma in her complicity in the matter."

20 That submission reflected the evidence that the applicant’s involvement began when she agreed to participate in the scheme, when approached by her ex-husband in China. On the applicant’s own evidence, when recruited she knew that this was a significant drug operation. It was from Hong Kong that she first contacted Ms Ma, in order to gain her assistance in Australia, over her ex-husband’s initial objection.

21 Ms Ma’s role was to drive the applicant around and to accompany and assist her, with the applicant being responsible for paying Ms Ma for her work. Despite the applicant’s denial, his Honour accepted Ms Ma’s evidence that the applicant promised to pay Ms Ma $400,000 for her assistance. Ms Ma also gave evidence that she was to receive $100,000 for her defence, if caught.

22 It was the applicant who communicated with Mr Hu about the arrival of the drugs and organised delivery to her apartment. She spoke with Mr Hu in code. She obtained mobile phones to be used in the enterprise and placed a newspaper advertisement in relation to the drug’s arrival. She stored the drugs at her home. The applicant directed Ms Ma, who assisted her in unpacking the substance substituted for the drugs. The applicant provided some of this substance for testing and discussed with Ms Ma making the drugs ready for delivery. His Honour observed:

"Clearly Ms Wang was a long way further up the chain of command to the position occupied by Ms Ma. She was involved in the operation from the time that she was in China. She was a trusted member of this group, having formerly been married to Mr Diao. She recruited Ms Ma to assist her. Ms Wang was a vital component of the scheme, whereas Ms Ma was merely an accessory.".

23 The trial judge’s conclusions were clearly open. The evidence showed that the applicant agreed to undertake a substantial role in the Australian end of the operation.

24 As to the sophistication of the enterprise, it must be remembered that the packets of cocaine were disguised as Chinese tea and shipped in a container being used to transport various legitimate items. Those involved in the enterprise used mobile phones and pay phones in order to minimise their links with the shipment. A fake advertisement was placed by the applicant in a newspaper to facilitate contact with Mr Hu. They spoke to each other in code. On that evidence, the applicant’s characterisation of this operation may not be accepted.

25 For reasons which his Honour explained, he preferred Ms Ma’s evidence on the question of what payment she had been promised, but concluded that '[o]n balance it does not really affect an assessment of the roles of the various participants in a manner that will significantly impact on their sentences'.

26 On the evidence, I cannot see that his Honour’s conclusions on the question of the applicant’s role in this operation was not fairly open. His Honour took the view that:

"The seriousness of the offence places it objectively towards the upper end, if not at the top of the range for this offence. That is based on the sophistication of the scheme involved, the amount of money paid for the drugs, the quantity, and the quality of those drugs, and the amount of money that could be expected for the sale of drugs. As previously noted, it is it is important to assess the offender's role in the offence. In my view Ms Wang played a significantly greater role than that played by the offender Ma. Equally her role was a subordinate one to that of Mr Hu, and also that of her former husband Diao."

27 His Honour had earlier observed:

"The estimated wholesale value of the drugs is between thirty-two and a half to forty-five million Australian dollars. Obviously the potential street value is astronomical, reaching well over $100 million. There is no suggestion that this offender was aware of the value of the drugs, and the only reason in referring to the value is to identify the objective seriousness of the offence."

28 In making that observation his Honour does appear to have overlooked that the agreed statement of facts revealed that the applicant had told Ms Ma that each packet of the drugs was valued at over $150,000. There were 251 packets. Having concluded that the applicant had herself promised to pay Ms Ma $400,000 for her assistance, that the applicant had an understanding of the astronomical value of the drugs involved in this operation cannot seriously be doubted.

29 The respective sentences finally imposed on the applicant, 18 years imprisonment, and that imposed on Ms Ma, 15 years, reflected the conclusions reached as to the relationship between their respective roles in this enterprise and the seriousness of their respective offences, given the various aggravating and mitigating matters which arose for consideration in each case.

30 I cannot see, in the face of the agreed facts and the evidence given by Ms Wang and Ms Ma, that his Honour fell into error in the conclusions which he reached as to the applicant’s role in this enterprise.

Ground 2 - His Honour failed to give the applicant an appropriate discount for her plea and assistance to the authorities.

31 The applicant was given a combined discount of 35% for the plea of guilty and assistance, of which 15% was for future assistance. Ms Ma also received a combined discount of 35%, 6% of which was for future assistance.

32 Given the importance of the applicant’s assistance, past and present, it was argued for the applicant that a total discount of 50% should have been applied. Reference was made to various authorities, including R v El Hani [2004] NSWCCA 162, where a total discount of 25% was allowed for plea and past assistance, where the value of the assistance given was reduced by the offender’s denial of his own involvement; and R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1, where a 50% discount had been given for plea and assistance, with the discount for assistance alone being 35%.

33 Here, it was submitted, the practical value of the future assistance which the applicant had agreed to provide and had provided was high, with the result that a 15% discount for such assistance was inadequate. The threat which flows from assistance would flow naturally from the nature of the involvement in the prosecution of others. That this case was recognised as having been the fourth largest importation of cocaine ever detected, was also a factor which ought to have resulted in higher discount. The value of assistance, it was argued, should increase with the seriousness of the crimes in respect of which assistance is being given. The applicant’s decision not to spend the duration of her imprisonment in protection should not disentitle the applicant to a discount.

34 There is no question that the value of the assistance given was an important consideration in his Honour’s assessment of the quantum of the discount which the applicant was to receive (see Yenice v R (1994) 72 A Crim R 234). In considering this ground of appeal, the observations of Kirby J, with whom Beazley JA and Johnson J agreed in Chan, Lo and Nguyenv R [2010] NSWCCA 153, are apt to consider. His Honour observed:

"65 Dealing with these submissions, the suggestion by the applicant Chan that insufficient weight had been given to the assistance which he had provided, inevitably encounters the difficulties described by Latham CJ in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 (reaffirmed in Mallet v Mallet [1984] HCA 21; 156 CLR 605 at 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 330). Latham CJ in Lovell said this: (at 519)

“... The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield [1891] AC 173 at 179) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.’ "

35 Here his Honour found as to the applicant’s assistance:

"Diao is no longer in Australia, and is not to be prosecuted at this time. On the other hand the man Hu Yang is in Australia and will shortly face trial. Ms Wang is due to give evidence in that trial. In my view her evidence could be significant and powerful. The fact that she is providing that assistance is itself a matter for assessment. The police have assessed her assistance at a level of only low to medium. I form the view that it is higher than that. In my view the assistance is at a medium level. The only deficit in her assistance might be her credibility as a witness. I found that she was not as impressive a witness as Ms Ma. Despite that she is giving evidence, much of which will be supported by other objective evidence, such as listening device evidence, and when taken together that evidence is quite likely to assist, or greatly assist the Crown case.

It has been suggested that she takes a risk by giving such evidence. That is difficult to assess without more information. It might be presumed whenever you give evidence against someone much higher up in a drug organisation there is some risk. Having said that I also note that the offender has elected not to serve her sentence in protection.

The offender has pleaded guilty, although it was not an early plea. It occurred in the District Court and only after Ms Ma pleaded guilty and offered to give evidence against this offender. It still facilitates justice but not nearly to the same extent as the plea entered by the co-offender Ms Ma which was entered in the Local Court. This offender's level of assistance, in my view, is of a higher order than that of the co-offender Ma, essentially because her evidence in the case against Mr Hu is likely to be more important. If Mr Diao returns then her evidence in that case could be vital. Her past assistance is not as significant. I will allow a total discount for the plea and assistance of 35 per cent, of which 15 per cent is for future assistance. "

36 The factors to be taken into account in assessing the value of assistance were discussed in R v Cartwright (1989) 17 NSWLR 243 at 252-255:

"It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co- operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co- operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself. Information which turns out to be significant, but which is neither comprehended nor intended as such by the offender, has not been given in the spirit of willingness which the discount is designed to achieve. The circumstance that objectively the information subsequently turned out to be effective may perhaps demonstrate that the information possessed such a potential if it is not otherwise obvious upon the face of the information itself, but such effectiveness is not a requirement. As we have already pointed out, the offender will not lose the discount because in fact (unknown to him) the authorities are already in possession of that information. Nor should he lose it if the authorities do not in the end act upon his information, because (for example) they subsequently receive or they have already received more cogent information from another source — or if the offender does not in the end give evidence as promised, because (for example) the person who is the subject of his information has pleaded guilty.

All of these matters should be dealt with in a broad and general way and without descending into minute detail. It would entirely subvert the benefit otherwise afforded to the public interest if, in cases where information has been given to the authorities, it became necessary for the sentencing judge to inquire into the investigative and prosecuting procedures in order to ascertain the extent objectively to which that information was in fact effective.

...

Once it is determined that a discount should be given in return for the assistance supplied, the judge must consider not only the extent and the willingness of that assistance but also the consequences to the prisoner of it having been given to the authorities. He will have to take into account any threat to the prisoner's safety and both the conditions under which he will have to serve his sentence in order to avoid reprisals and the steps which will need to be taken to protect him once he is released. Evidence should normally be led as to the existence and extent of such a threat, but to a large degree the judge is entitled to rely upon his own awareness of the severe hardships of protective custody in gaol. If there is any particular facility provided for the prisoner beyond the normal protection system, the judge should be given that information. It should not normally be a matter about which formal evidence is needed or about which there should be any real dispute. If there is any specific loss to the prisoner as a consequence of the conditions of his incarceration, it obviously should be raised expressly. In the present case, for example, it is asserted that the applicant has been denied the benefit of camp remissions. Just for what period before his release a prisoner with a thirteen year minimum term would have enjoyed the advantages of being sent to a camp is anything but clear, but such a loss of remissions (if applicable) is the sort of matter which should be raised expressly. It should also be made clear to the judge as to whether it is thought that some form of protection will continue to be necessary after the prisoner's release from custody, both for the prisoner himself and for his family."

37 It seems to me that his Honour did not err in his assessment of the discount to which the applicant was entitled. This was a Commonwealth offence and so there was no entitlement to a specified discount to reflect the utilitarian value of the plea. The decision as to the amount of the discount to be given was a discretionary one. The time and circumstances in which the plea was entered had to be considered, as did the value of the assistance already provided and the value of assistance likely to be provided in future. That a comparison was drawn with Ms Ma was appropriate, given that they were co-offenders. It was Ms Ma who first entered a plea, followed by the applicant's subsequent plea. His Honour was entitled to take this into account. He was also entitled to have regard to his rejection of the applicant’s evidence in relation to what she had promised to pay Ms Ma. Clearly his Honour took the view that the applicant had not been as frank as she could have been in the evidence which she gave. He concluded that the applicant should receive a total 20% for her plea and past assistance, and Ms Ma 29%.

38 His Honour took the view that the applicant’s future assistance would be of greater significance than that of Ms Ma, even though he took into account that the applicant’s evidence would be supported by other objective evidence obtained during the police investigation. He also accepted that if her ex-husband were ever apprehended, the applicant’s evidence could be vital.

39 The case advanced for the applicant below was that a 15% discount was appropriate for the plea, although a discount as low as 10% was available. It was also submitted that while a discount of 50 - 60% was available as a maximum for the combined plea and assistance given, in this case the applicant warranted ‘something in the order of 25%, with the result that 40% was appropriate.’

40 In considering this ground of appeal, these submissions may not be overlooked, nor may the view taken by this Court that a discount of more than 40% for a guilty plea and assistance, will not readily be available. A greater discount will require evidence that the offender is going to serve the sentence in a more difficult or harsher environment as a result of assistance given, will be required (see R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [55], Jimmy v R [2010] NSWCCA 60; [2010] 269 ALR 115 at [250] and FS v R [2009] NSWCCA 301 at [21]). There was no such evidence in this case.

41 When all of these matters are considered, I cannot see that his Honour overlooked any relevant consideration, or took into account any irrelevant matter in reaching his conclusion as to the value of the plea and discount. That higher discounts have been awarded in other cases involving differing circumstances, does not lead to the conclusion that a 35% discount in this case involved an error in the exercise of the discretion. Nor does the conclusion that Ms Ma should also receive a 35% discount, given her early plea, past assistance, but more limited future assistance, reveal error.

42 Given the nature of the evidence which the applicant gave at trial, the evidence which she could give at future trials, his Honour’s reservations as to her credibility and his view of the strength of the Crown case generally, that there was error in assessing the value of future assistance at 15% is not apparent. A total discount for the plea and past assistance of 20%, making a total of 35% was also clearly open, given the time at which the plea was entered, some 12 months after being charged, and the nature of the assistance then given.

43 Having in mind all of these matters, I cannot see that this Honour’s conclusion that a total 35% discount should be granted involved error.

Ground 3 - The sentence imposed was too severe in all of the circumstances.

44 The applicant’s case was that absent the discount, her sentence would have been in the vicinity of 27 years, 8 months, a manifestly excessive sentence in the case of a plea to an offence of attempting to possess an import, notwithstanding the quantity of drugs involved, especially given that her role was at the lower end of this drug hierarchy.

45 This submission was sought to be made good by reference to other decided cases. In written submissions reference was made to R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121, where conviction in relation to importation of 34.8 kgs of methyl-amphetamine resulted on appeal in a sentence of 25 years, with a minimum term of 15 years imposed upon an offender described for the applicant as an ‘enthusiastic supporter of the enterprise who played the principal role in Australia and whose sole motivation was financial gain’. It was argued that the applicant's role in this case was less and that Mr Hu was higher up the chain of command than she was. It followed that while the quantity and type of drug involved in this case differed, the applicant’s sentence, by comparison to that imposed upon To was too severe.

46 Reference was also made to Sukkar, where a sentence with a starting point of 21 years and a final sentence of 14 years, with a non-parole period of 9 years, was argued to share many points of comparison with this case. There consideration was given to the destruction of the offender’s career as a lawyer. Here consideration would be given to the effect of the sentence, which with release at age 40 would be likely to prevent the applicant from having children.

47 In Bartle, where 383 kg of pure cocaine was imported, the largest importation in history, a number of participants received sentences which had a starting point of 36 years and a final sentence of 24 years. It was argued that by comparison, the 27 years, 8 months sentence imposed on the applicant as a starting point, given that she was not responsible for importing the narcotic, but rather possessing and moving the drug in Australia, was difficult to reconcile.

48 In oral submissions reference was also made to R v Bateman [2000] NSWSC 915, an importation offence involving some 383 kilograms of cocaine worth some $62.5 million. The offence was committed after the offender had escaped from custody, having been convicted and sentenced to a term of 5 years imprisonment for cultivation of cannabis. Bateman admitted his guilt on the day of his arrest and entered a plea at the first opportunity. He received a discount for the utilitarian value of the plea and his contrition, as well as for assistance, which included cooperation acknowledged to have been instrumental in the arrest of the Australian principal of the criminal organisation involved in the importation. He had provided other assistance and was in protective custody and was found to have been a willing participant, who was to obtain approximately $1 million for his involvement. The starting point for his sentence was close to a life sentence, substantially greater than 30 years, with a discount of 50% for assistance and the plea, with a one third reduction required by s 16G, resulting in a sentence of 13 years.

49 In FS, there was 28.399 kg of pure cocaine involved and the sentence commenced with 20 years, with a 40% combined discount for an early plea and assistance. On appeal there was no interference with the 20 year starting point.

50 In Chan, Lo and Nguyen, a case concerned with 15.10 kg of methylamphetamine, the sentences imposed were 12 years and 6 months for Chan, a discount from 17 years and 10 months; 7 years and 6 months for Lo, a discount from 10 years; and 10 years for Nguyen, a discount from 11 years and 2 months. These sentences were argued to be considerable different to that imposed on the applicant, so revealing that her sentence was manifestly excessive.

51 Despite the comparisons sought to be drawn with these other cases, in my view this ground of appeal was not made out.

52 The importance of consistency in sentencing is frequently discussed, yet there are always difficulties with comparisons of this kind, particularly when they are not concerned with co-offenders (see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 326 - 327; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 538; Everett v The Queen [1990] HCA 49; (1994) 181 CLR 295 at 306; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340).

53 The sentence imposed must reflect the criminality involved in the particular offence, having in mind the maximum penalty for the offence, the various objective and subjective factors which the evidence reveals, together with the application of principles such as general and specific deterrence and totality, if there is more than one charge being dealt with. (See for example the discussion in Chan, Lo and Nguyen at [117].)

54 It follows that if comparisons with other cases are to be of any assistance, they have to be drawn at the starting point of the sentencing exercise. Thus the comparison between the starting point of 27 years, 8 months in this case and the end result in Bartle, a sentence of 24 years, throws no real light on whether the sentence here imposed, 18 years, was too severe. Nor does the comparison of the starting point in Bateman, of ‘close to a life sentence and exceeding substantially a sentence in the order of thirty years’ resulting in a figure of 39 years, with a starting point in this case of 27 years, lead to the conclusion that the sentence imposed in this case was manifestly excessive.

55 There are other obvious contrasts to be drawn between this case and those relied on for the applicant. For example, the charge in To related to 34.8 kgs of methyl-amphetamine and that in Sukkar to 34.4 kg of ecstasy. This offence concerned some 201.2465 kg of cocaine. Bartle involved 383.434 kg of cocaine, Bateman 383.434 kg and FS 28.399 kg and yet a starting sentence of 20 years was not disturbed on appeal. The weight and value of the drugs in question in each case are undoubtedly important factors to be considered in sentencing, but they alone do not govern the sentence and the range into which it might fall (see Wong v The Queen [2001] HCA 64; 207 CLR 584; R v Nguyen and Ors [2005] NSWCCA 362; 157 A Crim R 80 at [110] and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194). There are many other factors which result in the sentence finally imposed, which makes comparisons of this kind problematic.

56 Also necessary to be born in mind when considering Bartle and Batemen is that s 16G of the Crimes Act 1914 (Cth) was in operation at the time those sentences were imposed. In R v Tran [2007] QCA 221; 172 A Crim R 436 it was explained by Keane JA that:

"34 The apparent disparity in sentencing in the various States and Territories was in part attributable to s 16G of the Crimes Act which was introduced in 1990 by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). Section 16G provided:

“ 16G Federal sentence to be adjusted if no State or Territory remissions laws apply
If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.’

35 Section 16G reflected the fact that some States and Territories provided for the remission of sentences to be served and others did not. It was intended that the result of the sentences imposed should be similar by taking into account the effect on lengthening sentences where States had abolished an entitlement to remission. The States and Territories in which remissions had been abolished were New South Wales and the ACT in 1989, Victoria in 1991, South Australia in 1994 and the Northern Territory in 1996. Remissions were abolished in Queensland for offences committed after 1 July 2001. Section 16G was repealed by the Crimes Legislation Amendment Act 2002 (Cth) with effect from 17 January 2003. Thus when comparing sentences imposed for like offences in the various States and Territories prior to 17 January 2003, the effect of s 16G must be considered. However since that date, it has had no relevant effect on a comparison between sentences imposed in different jurisdictions."

57 In R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1, Howie J described the history and effect of ss 16G and 19AG of the Crimes Act 1914 in New South Wales at [37] - [45], observing at [43]:

"43 To give effect to the sections, the courts in this State proceeded to sentence a Federal offender by determining the appropriate head sentence and non-parole period by the application of normal sentencing principles and the relevant provisions of the Crimes Act (Cth) and then, before pronouncing the sentence, reduced it by a period of about a third. Although Hunt J in Paull suggested that a set formula should be applied to determine the appropriate discount to be applied by reason of s 16G, that approach was disapproved in Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370. It was held that a discretion should be exercised in determining the effect of s 16G on the otherwise appropriate sentence and that, although a discount of a third was a “legitimate starting point”, in an appropriate case a sentencing judge could “moderate” the discount. The seriousness of the particular offence committed was identified as one reason why a court might depart from the normal discount; R v Chan (2002) 128 A Crim R 119. It was unnecessary for the judge to specify the actual discount that was applied; R v Budiman (1998) 102 A Crim R 411, or the reason for departing from the normal discount unless that departure was substantial; R v Bradley (1997) 137 FLR 314. However, it was an error for the sentencing judge to fail to indicate that the section was being taken into account in determining the sentence that was imposed; R v O’Connor [2002] NSWCCA 156."

58 The result was that the sentences imposed in Bartle and Bateman, were substantially reduced by the trial judge, to give effect to s 16G. (See at [349] in Bartle for example, where reference was made to sentencing remarks which refer to a reduction in sentence by one third on this account). The appeal on sentence was dismissed in that case.

59 In my view, none of the decisions relied on support the conclusion that a starting point of 27 years, 8 months in this case was too high for the criminality involved in the applicant’s offence. In the face of the maximum penalty of life imprisonment and the evidence as to the applicant’s involvement in this very serious offence, that was a starting point which falls within the available range. The result of the 35% discount which his Honour applied, a term of imprisonment of 18 years, has not been shown to be manifestly excessive.

60 It seems to me that the approach urged for the applicant also overlooks the fact that the maximum sentences for this offence and that of importation are the same, namely life imprisonment. The legislature has not taken the view that the importation offence is necessarily more serious than the offence with which the applicant was charged, as was urged for the applicant.

61 I have earlier dealt with his Honour’s conclusions as to the applicant’s role in this criminal enterprise. His Honour did not err in the conclusion reached on that matter. His Honour was also criticised for concluding that the subjective cases of Ms Ma and the applicant were very similar. That conclusion was said not to be available in light of evidence that it was likely that the applicant was vulnerable to her ex-husband and that her judgment may have been impaired, because of her depressed state in the aftermath of the collapse of her marriage, when her trauma led to an inadvertent overdose of sleeping pills.

62 It was thus argued that his Honour had failed to take account important findings which affected the applicant’s motivation and role in the offence. While greed was expressly found to be one motivating factor, his Honour also found that a desire to reconcile with her ex-husband was another. This should have led to the conclusion that her involvement stemmed from her vulnerability.

63 In my view the evidence and his Honour’s remarks on sentence do not reveal such error.

64 The psychologist's report in evidence was that while the applicant was not suffering from clinical depression:

"The history provided by Ms. Wang is that she was raised in a reasonably stable early home environment until she was 16 years of age when she and her father joined her mother in Australia. Her mother had come to Australia 6 years earlier and had sponsored them. Following their arrival in Australia however her parents began to argue a great deal and separated when she was about 18 years old.

She presented as being a person of at least average intellectual ability. This is consistent with her statement that she had been an average student and in Australia managed to complete Year 10.

The history she provided suggest that she has led a reasonably stable lifestyle and had not experienced any difficulties in her functioning until her marriage broke down when she was about 26 years of age. She became depressed and for a week had abused alcohol as well as taking an overdose of medications. She then returned to China and has not had a problem with alcohol or drugs since that time. However, she stated that she had continued to have difficulties in coming to terms with the breakdown of her marriage and had been feeling depressed. She also reported that she has not previously been convicted of any criminal offence.

The results of psychometric tests administered to her indicate that she has stable personality functioning. She does not have antisocial characteristics in her personality adjustment. Although she said that she has been feeling depressed since being in jail the results indicate that she is not suffering from clinical depression. However she has rather low self-esteem and has some symptoms of reactive depression because of her currently legal situation.

In examining Ms. Wang's offending behaviour there are a couple of factors which are likely to have contributed to it. Firstly she stated that she had been feeling depressed since the breakdown her marriage. Thus it is likely that she was somewhat vulnerable when her ex-husband had asked her to assist him by telephoning Hu when she returned to Australia. Because of her depressed state her judgement may have been to some extent impaired at the time. An indication that this may have occurred is seen in her test results in that she is pro-social in her attitudes and does not appear to identify with antisocial values or attitudes. Her behaviour in committing the offence is inconsistent with these findings. She also learned that she was to obtain some payment for having committed the offence and she said that she was very worried about the size of the mortgage on her unit. She had hoped that her financial worries would be eased by committing the offence. She said that her mother's business had closed and that her mother was not able to assist her financially.

She expressed regret for her offending behaviour. She also did not attempt to deflect any blame for her offence and appears to taken responsibility for it.

The results of actuarial analyses indicate that she has a low risk of recidivism. The factors which had been included in the actuarial analyses are outlined in the explanatory notes in appendix B. This result is consistent with her not having previously been convicted of any criminal offence. No high risk factors were revealed by this assessment. Having considered her history and the results of psychometric tests administered to her, along with the results of the actuarial analyses, is my opinion that she does have a low risk of re-offending and that she has good prospects for rehabilitation."

65 His Honour clearly had regard to and took into account the relevant evidence. It did not suggest that the applicant was suffering from any mental condition of a kind which could have been dealt with as a disability under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999, nor was such a submission advanced. The case advanced on sentencing was that given the applicant’s two motives for involvement in this operation:

"Now, that doesn’t mean that she can avoid general deterrent rather than a specific deterrent about these sort of offences but it does mean that she’s not seeking to make a huge profit, which is often the case in importations of this size."

66 That submission was clearly not open in the face of his Honour’s conclusions as to what the applicant had promised to pay Ms Ma and what she was herself likely to obtain from her involvement in this operation. Nevertheless, the need for deterrence to play a role in the sentence imposed was accepted, as it had to be.

67 Given the evidence of the applicant’s role and what she is likely to have achieved by way of reward for her participation and having in mind the evidence which his Honour accepted, that she had recruited Ms Ma on a promise of paying her $400,000 for her assistance and the type, amount and value of the drugs involved, that his Honour came to the view which he did, that a relatively high penalty had to be imposed on the applicant, does not seem to me to involve error. That is so notwithstanding the subjective matters relied on, including the applicant’s vulnerability to exploitation by her husband. This was a matter which his Honour plainly took into account, albeit that the evidence about it was of a relatively limited compass and could not be given very substantial weight as a mitigating factor, particularly when considered with the other matters which had to be taken into account in determining sentence.

68 In that context, I cannot see that his Honour erred in the conclusion reached on the evidence and the case advanced. He has not been shown to have taken into account irrelevant matters, or to have ignored relevant considerations. In my view, the sentence imposed was not manifestly excessive, given what fell to be assessed in determining sentence in this case.

Orders

69 For these reasons, I would order that leave to appeal be granted, but the appeal be dismissed.

: I agree with Schmidt J.

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