See full judgment: Austlii.
The offenders were sentenced following pleas of guilty to 1 count of attempting to import a commercial quantity of a border controlled drug contrary to ss 11.1(1) and 307.1(1) of the Commonwealth Criminal Code. Offending related to between 1,521.66 and 1,552.6 kilograms of pure cocaine. Original sentenced imposed 17 years of imprisonment with a non-parole period of 10 years. Offenders appealed on the grounds that the sentencing judge erred in failing to take into account offenders’ willingness to facilitate the course of justice, erred in the assessment of the objective seriousness of the offence, and that offenders have a justifiable sense of grievance in light of the sentence imposed upon the co-offender, Man Wah Chan.
Cooperation: The utilitarian value of a plea of guilty and the willingness of an offender to facilitate the course of justice, are conceptually different. The former is an objective factor that should be quantified. The latter is a subjective factor that does not require quantification but may operate to mitigate the sentence as part of the process of instinctive synthesis. Although an offender’s willingness to facilitate the course of justice is closely related to the concepts of remorse and contrition, there will be cases where it will be necessary for a sentencing judge to address each consideration. In this case, the absence of any reference to the applicants’ facilitation of the course of justice, in circumstances where that factor was discreetly addressed and conceded by the Crown at first instance, and where the same sentencing judge alluded to it in sentencing Mr Chan, constitutes error.
Nature and Circumstances: The sentencing judge assessed offenders’ roles as falling ‘at an intermediate level in this enterprise’. There was, however, very little, if anything, known about the criminal enterprise or the individuals responsible for the importation. It was open to their Honour to reject the submission that offenders fulfilled low level roles in the enterprise. Having regard to the acts each undertook over a period of about three months, it was open to find that the applicants’ criminality sat above that of Mr Chan, who was sentenced on the basis that he became involved in the enterprise on 7 or 8 August 2020. However, without knowing the role of those who sat at the higher and lower levels of the enterprise, it was not open to find that the applicants fulfilled ‘intermediate’ roles.
Parity: It may be accepted that the subjective cases of each offender were relevantly identical. It follows that any disparity must be justified by reference to differences in the objective cases. Offenders engaged in preparatory acts over a period of three months prior to the particularised offence. There was, however, nothing to distinguish between the roles that each offender played during the two-day voyage. Even accepting that offenders’ criminality sat above that of Mr Chan, the differences in roles did not justify such a marked disparity in the sentences. The differences in sentences imposed on offenders, compared to Mr Chan, are disproportionate to the relevant distinctions in the role played by each offender in the commission of the offence, such as to warrant appellate intervention.
Appeal to leave granted. Appeal allowed. Offenders resentenced to 13 years and 6 months of imprisonment with a non-parole period of 8 years.