THE KING v TEREAPII POKOINA [2024] SASCA 132

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE SOULIO) DCCRM-21-368 Appellant: THE KING Counsel: MR R WILLIAMS SC WITH MR P HILL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Respondent: TEREAPII POKOINA Counsel: MR M ANDERS WITH MR P DEEGAN - Solicitor: BRIAN DEEGAN LAWYERS Hearing Date/s: 14/10/2024 File No/s: SCCRM-24-010078 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v POKOINA [2024] SASCA 132 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice S Doyle and the Honourable Justice Stein) 21 November 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING COCAINE This is an application by the Commonwealth Director of Public Prosecutions for permission to appeal against sentence on the ground that the respondent’s sentence for the offence of importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code, was manifestly inadequate. The respondent pleaded guilty to this offence after his involvement in the importation of 14.3 kg of cocaine from Greece to Australia in August 2020. The quantity of cocaine was such that the applicable maximum penalty for the offence was imprisonment for life and/or a fine of $1.665 million. After appropriate reductions, the judge identified a sentence of imprisonment for six years, one month and 29 days and fixed a non-parole period of three years and two months. After credit of one month -- 1 of 17 -- and 15 days for time served, the judge imposed a sentence of imprisonment for six years and 14 days, with a non-parole period of three years and 15 days. Held, (per the Court), granting permission to appeal, allowing the appeal, setting aside the sentence imposed below and resentencing the respondent: 1. Having regard to the seriousness of the offending, the respondent’s personal circumstances and the primary sentencing objectives of general deterrence, punishment and denunciation for Commonwealth drug importation offences, the sentence imposed was manifestly inadequate; 2. After weighing the public policy reasons for appellate intervention against the principles of double jeopardy, this is an appropriate case in which to grant permission to appeal; and 3. From a starting point of 12 years, but after appropriate reductions, the respondent is resentenced to a term of imprisonment for eight years, 10 months and 15 days, with a non- parole period of four years, 10 months and 15 days, backdated to commence on 26 February 2024. Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth) sch 1, ss 11.2, 11.5(1), 307.1(1); Criminal Code Regulations 2019 (Cth), referred to. Adams v The Queen (2008) 234 CLR 143; AE v R [2023] NSWCCA 74; Barbaro v The Queen (2014) 253 CLR 58; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; R v Berry [2024] SASCA 116; R v Buttigieg [2020] SASCFC 38; R v Constant (2016) 126 SASR 1; R v Holland (2011) 205 A Crim R 429; R v Kelly [2023] SASCA 22; R v Kong (2013) 115 SASR 425; R v McIntyre (2020) 138 SASR 17; R v Nemer (2003) 87 SASR 168; R v Nguyen (2010) 205 A Crim R 106; R v Osenkowski (1982) 30 SASR 212; R v Pham (2015) 256 CLR 550; R v Robinson [2024] SASCA 118; R v Scott [2017] SASCFC 96; R v Singh [2024] SASCA 81; R v Yaroslavceff [2022] SASCA 123; R v Yavuz [2020] SASCFC 87; Saab v The Queen [2012] VSCA 165; Wong v The Queen (2001) 207 CLR 584, considered. -- 2 of 17 -- R v POKOINA [2024] SASCA 132 Court of Appeal – Criminal: Lovell and S Doyle JJA and Stein AJA 1 THE COURT: This is an application by the Commonwealth Director of Public Prosecutions for permission to appeal against sentence. 2 Following his plea of guilty, the respondent was sentenced for the offence of importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code.1 The quantity of cocaine (14.3 kg) was such that the applicable maximum penalty for the offence was imprisonment for life and/or a fine of $1.665 million. 3 After appropriate reductions, the judge identified a sentence of imprisonment for six years, one month and 29 days and fixed a non-parole period of three years and two months. After credit of one month and 15 days for time served, the judge imposed a sentence of imprisonment for six years and 14 days, with a non-parole period of three years and 15 days. 4 The prosecution seeks permission to appeal the sentence imposed. It seeks permission to do so on the ground that the sentence imposed is manifestly inadequate. It challenges the adequacy of both the head sentence and non-parole period. 5 For the reasons which follow, the sentence imposed was manifestly inadequate. It is appropriate to grant permission to appeal, allow the appeal and resentence the respondent in the terms set out at the conclusion of these reasons. Circumstances of the offending 6 The following is taken largely from the summary of facts provided to the sentencing judge by the prosecution, and is not in dispute. 7 On 27 August 2020, a consignment from Greece containing 14.3 kg of cocaine (within a substance weighing 17.97 kg, and with a purity of 79.6 per cent) was intercepted by the Australian Border Force at Air Menzies International, adjacent to the Adelaide Airport, and later seized by the Australian Federal Police. The cocaine was concealed within two welding machines. 8 The street value of 17.97 kg of cocaine substance was between about $5.2 million and $6.3 million. 9 The respondent was employed by an Adelaide termite management company. By early August 2020, the respondent had agreed with his co-accused (who are yet to be tried) to use his employer’s address for receipt of the 1 Criminal Code Act 1995 (Cth), sch 1. -- 3 of 17 -- [2024] SASCA 132 The Court 2 consignment. He obtained his manager’s consent to use a business email address for communications related to the consignment. 10 On 10 August 2020, the skipper of the consignment sent two emails to this address. The respondent then used his mobile phone to research the conversion of Euros to Australian dollars. 11 On 12 August 2020, the respondent received a payment of $8,000 into his bank account. He subsequently transferred $8,059 to the company responsible for shipping the consignment from Greece. 12 On 24 and 25 August 2020, the respondent confirmed with the import agency responsible for the consignment that he was the intended recipient, and provided his personal email address. 13 On 27 August 2020, the consignment arrived in Adelaide and was moved to a Bonded Customs approved warehouse at Air Menzies International. That evening, the respondent advised his supervisor that he would be resigning from his employment. It was agreed between the parties that he resigned out of embarrassment due to his involvement in the importation. 14 One of the co-accused, Mr M, was the director of a local logistics company, responsible for arranging the payment of fees and the subsequent delivery of the consignment. On 28 August 2020, the respondent provided details of the consignment to Mr M in order to facilitate the customs clearance on the delivery. On that same day, the respondent used an online business registration service to register a metal works business to his home address. 15 On 30 August 2020, Mr M’s logistics company issued an invoice to the respondent, in the name of his employer, which described Customs clearance and other fees, totalling $2,148.95 in relation to the consignment. 16 At 6.54 am on 31 August 2020, the respondent emailed Mr M advising that he would arrange transportation to collect the consignment once cleared. 17 At about 10.55 am that day, Australian Border Force conducted an examination of the consignment and identified nine packages of white power, secreted within the two welding machines. The consignment was seized by Australian Federal Police a short time later. 18 Following seizure, the respondent continued to engage in conduct designed to secure delivery of the consignment. He paid the customs fees of $2,148.95 referred to above. He also liaised with the import agency about collection of the consignment, and paid their additional fees of $341. He advised the import agency that he needed the welders for upcoming projects, and on their request, provided a ‘trading application form’ giving his home address and identifying himself as the owner of the business. -- 4 of 17 -- [2024] SASCA 132 The Court 3 19 The respondent attended Air Menzies International on 1 September 2020, seeking to collect the consignment, but was advised it had been seized. He re- attended on 2 September, querying why it had been seized, and then followed up with numerous emails to the import agency between 3 and 8 September requesting information about the consignment. 20 The respondent was arrested at his home on 8 September 2020. The respondent’s personal circumstances 21 The respondent is now 50 years of age. He was born in the Cook Islands and was raised by his paternal grandparents, following the separation of his parents when he was young. He has one son, now about 25 years of age, with whom he has a strong relationship. 22 The respondent moved to Australia at 19 years of age. Having performed well at school, he obtained a scholarship to study at the University of Adelaide. He commenced a Bachelor of Science, and later a Diploma of Tourism, but did not complete either course. At age 35, he returned to university and completed a Bachelor of Commerce. 23 The respondent has worked in numerous roles, including landscaping, security, loan processing and factory work. It was not disputed that he had a consistent work history and a good work ethic. 24 Since the relationship which produced his son, the respondent had been in a number of short-term relationships, before commencing his current relationship, which the respondent described as supportive and positive. 25 The respondent has a history of periodically abusing alcohol, and for a time used methamphetamine. He commenced using cocaine at the age of 37. It was not disputed that he was addicted to cocaine at the time of the offending, and that his involvement was in some part motivated by an impression that he would be cut off from his supply of cocaine if he did not assist with the importation. He stopped using cocaine following his arrest. 26 The respondent has prior convictions for cultivating more than the prescribed number of cannabis plants, possessing a prescription drug, possessing prescribed equipment and interfering with an electricity meter. These offences were dealt with by way of a fine in the Magistrates Court in February 2018. He also has a conviction for a common assault in 1995, and convictions for various road traffic offences. 27 The respondent was assessed by a psychologist, Mr Wong, who concluded that the respondent’s offending was a product of his normalisation of drug use, his poorly developed emotional regulation, his cocaine use and addiction, and his association with a drug dealer. Mr Wong diagnosed the respondent as having a stimulant use disorder, explaining that his preoccupation with obtaining cocaine -- 5 of 17 -- [2024] SASCA 132 The Court 4 had reduced his executive functioning abilities, including his consequential thinking, problem solving and inhibition. This was complicated by his overall delayed moral development and self-management as a result of his upbringing, which had led to him being naïve and vulnerable to manipulation such as appeared to have occurred in relation to the offending for which he was being sentenced. 28 Mr Wong reported that the respondent had displayed some insight into the factors that led to his offending, and was motivated to undertake therapy. He also reported that the respondent was remorseful, had demonstrated contrition, and was ashamed of the way in which his actions had affected his family’s reputation. 29 Mr Wong concluded that the respondent’s risk of re-offending was low. On the other hand, it is apparent that the respondent’s drug use had previously become problematic when he experienced stressful events, and that he did not have any relapse prevention strategies in place. The sentencing remarks 30 Having set out the basic circumstances of the offence for which the respondent had been convicted, the sentencing judge explained that it was common ground that the importation was arranged by other people, noting that four others had been charged in respect of the importation, including those who were at a higher level in the operation than the respondent. Consistently with the more detailed description above, the judge summarised the respondent’s role as follows: Your role was to provide details of a delivery address and make arrangements for receipt of the equipment. You arranged to provide your then employer’s name and address to be used as the consignee, and completed a bank transfer of just over $8,000 to the overseas shipper. You then engaged and paid fees to entities in Australia to facilitate the customs clearance with the aim of taking delivery. The consignment was instead seized by law enforcement authorities. 31 The sentencing judge said that the prosecution had accepted, and the respondent was to be sentenced on the basis, that he was ‘at the lowest level of the known hierarchy’, but that his ‘conduct was fundamental to the success of the importation’, and that without his involvement the drugs would not have made their way into Australia. 32 His Honour also noted the parties’ agreement, and was prepared to sentence the respondent on the basis, that the respondent would receive ‘a significant financial reward’ and between six and eight 8-balls of cocaine. This equated to between 21 and 28 grams of cocaine, with a street value of between $6,000 and $8,000, which the judge concluded would have been for the respondent’s own use. Whilst the quantum of the anticipated financial reward was unknown, it was accepted that the combined value of the drugs and financial reward the respondent was to receive in payment for his role was something less than the $40,000 that one of his co-offenders was to receive for his part in the importation. -- 6 of 17 -- [2024] SASCA 132 The Court 5 33 The respondent did not in fact receive any of the anticipated cocaine or financial reward. 34 The sentencing judge described the respondent’s personal background and circumstances in some detail, drawing upon a number of matters set out in the report provided by Mr Wong, as summarised above. 35 After mentioning that the respondent suffered the trauma of losing his grandmother in March 2020, the judge accepted that this had had a significant impact on the respondent’s mental health, and was in some ways inextricably linked with his descent into further drug use and his involvement in the offending. 36 The sentencing judge noted the respondent’s criminal history, but considered it to be ‘very limited’. Whilst it included drug related offending for which he was sentenced in February 2018, his Honour noted that it was dealt with by way of a fine, and described it as offending of a relatively minor nature. 37 His Honour described the respondent as a man ‘generally of otherwise good character’. His Honour mentioned the large number of references that had been provided by the respondent’s family, friends and work colleagues, all of whom spoke highly of the respondent. 38 The sentencing judge noted that the respondent had been remanded in custody for three weeks before being released upon home detention bail. He remained on home detention bail for four months, before being placed on supervised bail. The respondent had complied with his bail conditions, and had engaged appropriately with the supervision process. He had been tested for illicit drug use on six occasions, on each occasion testing negative. 39 Turning to the sentence to be imposed, the sentencing judge observed that principles of general deterrence and denunciation were the principal considerations in sentencing for an offence of importation of a border controlled drug. Such considerations tended to outweigh subjective considerations, with condign punishment required to achieve the requisite deterrent effect. 40 The sentencing judge explained that, whilst the respondent’s role was ‘at the lowest level of the known hierarchy’, he had taken a number of steps in furthering the process of importation. And whilst the respondent may not have known the precise amount or value of the cocaine being imported, he was clearly aware that it was cocaine and that it was a relatively significant importation. 41 The judge accepted that the respondent’s offending came about in circumstances where he was in a vulnerable state, in part because of his emotional condition, and in part because of his addiction to cocaine and his relationship with one of the principals in the offending. -- 7 of 17 -- [2024] SASCA 132 The Court 6 42 The judge also accepted that the respondent was entitled to some discount for his plea of guilty, which demonstrated genuine remorse and contrition, an acceptance of responsibility, and a willingness to facilitate the course of justice. 43 After referring to the schedule of sentences provided by the prosecution, and the sentencing principles for drug importation offences reflected in cases such as R v Pham2 and Wong v The Queen,3 the judge imposed the sentence mentioned at the outset of these reasons. Permission to appeal on the ground of manifest inadequacy 44 The Director seeks permission to appeal on the single ground that the sentence imposed is manifestly inadequate, both in terms of the head sentence and the non-parole period. 45 The principles governing a submission of manifest inadequacy in a sentence are not in dispute. As Lovell JA explained in R v Kelly:4 Manifest inadequacy is a conclusion. In determining whether a sentence is or is not plainly inadequate, an appellate court must essentially repeat the sentencing task undertaken by the sentencing judge and in doing so, determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.5 46 The principles governing permission to appeal in a prosecution appeal against sentence are also not in dispute. This Court recently summarised those principles, in the context of a proposed prosecution appeal complaining of manifest inadequacy, in R v Singh:6 The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.7 If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to 2 R v Pham (2015) 256 CLR 550. 3 Wong v The Queen (2001) 207 CLR 584. 4 R v Kelly [2023] SASCA 22 at [36] (Lovell JA); R v Berry [2024] SASCA 116; R v Robinson [2024] SASCA 118. 5 R v Buttigieg [2020] SASCFC 38; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123. 6 R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA). 7 R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. -- 8 of 17 -- [2024] SASCA 132 The Court 7 grant permission to appeal even though no general point of principle will be established by the case.8 47 It is appropriate to commence by considering the prosecution submission of manifest inadequacy before returning to the issue of permission to appeal. Manifest inadequacy 48 In considering a submission of manifest inadequacy in a sentence that has been imposed upon an offender, it is appropriate and necessary to have regard to the full range of considerations relevant to the sentencing exercise. This includes consideration of the maximum penalty, the relative seriousness of the offending and the personal circumstances of the offender, having regard to the detailed list of matters in s 16A(2) of the Crimes Act 1914 (Cth). It also includes consideration of any guidance that might be provided by comparable cases, as explained below. It requires consideration of these matters in the context of the objectives of the sentencing exercise. 49 When sentencing an offender for a Commonwealth drug importation offence, the primary sentencing objectives will ordinarily be general deterrence and, related to this, punishment and denunciation.9 Whilst circumstances personal to the offender will always be relevant, and often important, they cannot be permitted to overwhelm the sentencing exercise at the expense of achieving an appropriate level of general deterrence. 50 As explained in several decisions, the sentencing court must approach the sentencing exercise through the prism of the structured sentencing regime for importation offences in the Criminal Code. In particular, s 307 of the Criminal Code adopts what has been described as ‘a quantity-based penalty regime’ by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties.10 51 In determining the objective seriousness of the offending, the courts have identified a number of circumstances, focussing upon matters such as the quantity and value of the drug imported, the nature of the offender’s role in the importation, the extent of the offender’s knowledge of the relevant enterprise, and the offender’s motivation and anticipated reward. 11 8 R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ. 9 Wong v The Queen (2001) 207 CLR 584 at [64] (Gaudron, Gummow and Hayne JJ). 10 Adams v The Queen (2008) 234 CLR 143 at [2] (Gleeson CJ, Hayne, Crennan and Kiefel JJ); R v Nguyen (2010) 205 A Crim R 106 at [70]-[72] (Johnson J, Macfarlan JA and RA Hulme J agreeing); R v Constant (2016) 126 SASR 1 at [33] (Nicholson, Lovell and Hinton JJ); R v Scott [2017] SASCFC 96 at [43] (Lovell J, Stanley and Parker JJ agreeing). 11 Wong v The Queen (2001) 207 CLR 584 at [64] (Gaudron, Gummow and Hayne JJ); R v Constant (2016) 126 SASR 1 at [38] (Nicholson, Lovell and Hinton JJ); R v Scott [2017] SASCFC 96 at [45] (Lovell J, Stanley and Parker JJ agreeing). -- 9 of 17 -- [2024] SASCA 132 The Court 8 52 In a passage applied in this Court,12 the relevant circumstances and principles were conveniently summarised by Johnson J in R v Nguyen:13 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 … ; (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 …; (c) it is the criminality involved in the importation which must be identified …; (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 … ; (e) the statements by the High Court in Wong 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 …; (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 … ; (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 …; (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 …; (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 … ; (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 …; good character is not an unusual characteristic of persons involved in drug importation …; (k) where offenders are not young …, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions … ; (l) …; (m) …; (n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong 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) …; (o) … 12 R v Constant (2016) 126 SASR 1 at [33] (Nicholson, Lovell and Hinton JJ); R v Scott [2017] SASCFC 96 at [43] (Lovell J, Stanley and Parker JJ agreeing). 13 R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J, Macfarlan JA and RA Hulme J agreeing), omitting citations, and some circumstances not presently relevant. -- 10 of 17 -- [2024] SASCA 132 The Court 9 53 In determining an appropriate sentence, it is also appropriate to have regard to sentences that have been imposed in other (more or less) comparable cases, such as those contained in the schedule provided to the sentencing judge and this Court. For Commonwealth offences, the comparison exercise must reflect the need for consistency throughout the various states and territories of Australia, and hence include having regard to sentencing decisions of other intermediate appellate courts unless there is a compelling reason not to do so.14 54 However, the Court must do so both mindful of the limitations inherent in any exercise of comparison, given the inevitable differences between the facts and circumstances in other cases; and with an understanding that other cases can do no more than indicate a pattern or range of sentences which have been imposed, and provide a yardstick against which to examine a proposed sentence.15 The Court must also be mindful of the consideration that, whilst consistency in sentencing is important, the consistency that is sought is consistency in the sense of treating like cases alike and different cases differently; and in the application of the relevant legal principles. It is not a quest for numerical equivalence, or a task otherwise capable of mathematical expression.16 55 The maximum penalty for the respondent’s offending is life imprisonment and/or a fine of $1.665 million. This maximum is an indication of the seriousness with which Parliament regards the offending, and is an important yardstick guiding the sentencing exercise. In considering this maximum penalty, it is also important to do so in its context of the structured sentencing regime provided for in s 307 of the Criminal Code, and hence having regard to the scaled penalties in order to maintain some relativity in the spread of sentences both within, and between, the categories.17 In particular, the Criminal Code provided for the following offences, weight thresholds and maximum penalties of relevance in the present case:18 Offence Weight threshold Maximum Penalty Import a commercial quantity (s 307.1(1)) 2 kilograms Life imprisonment and/or $1.665 million Import a marketable quantity (s 307.2(1)) 2 grams 25 years imprisonment and/or $1.11 million Import (basic offence) (s 307.3(1)) No threshold 10 years imprisonment and/or $444,000 14 Hili v The Queen (2010) 242 CLR 520 at [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); R v Pham (2015) 256 CLR 550 at [18], [24], [28]-[29] (French CJ, Keane and Nettle JJ). 15 Hili v The Queen (2010) 242 CLR 520 at [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58 at [41] (French CJ, Hayne, Kiefel and Bell JJ). 16 Hili v The Queen (2010) 242 CLR 520 at [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58 at [40] (French CJ, Hayne, Kiefel and Bell JJ); R v Pham (2015) 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ); R v Constant (2016) 126 SASR 1 at [44] (Nicholson, Lovell and Hinton JJ). 17 R v Constant (2016) 126 SASR 1 at [34]-[36] (Nicholson, Lovell and Hinton JJ); R v Kong (2013) 115 SASR 425 at [86] (Kourakis CJ, Sulan and David JJ). 18 Criminal Code Regulations 2019 (Cth) reg 14, sch 2, cl 1. -- 11 of 17 -- [2024] SASCA 132 The Court 10 56 The quantity (14.3 kg) and value (between $5.2 million and $6.3 million) of the cocaine imported in the present case was very significant. It was more than seven times the threshold commercial quantity. The total substance (17.97 kg) was also of a relatively high level of purity (79.6 per cent). This quantity of cocaine had the potential to do significant harm in the community. Further, its significant value underscores the need for a very strong sentencing response in order to deter potential like offenders. 57 In addressing the respondent’s role in the importation, the sentencing judge acknowledged that the importation was arranged by others, including those who were at a higher level in the operation than the respondent. He described the respondent as ‘at the lowest level of the known hierarchy’. However, as the sentencing judge also acknowledged, the respondent’s conduct nevertheless involved taking several steps, over a period of at least a few weeks, in furthering the process of importation. The sentencing judge described his role as ‘fundamental to the success of the importation’. It involved more than a single or discrete task, such as might be undertaken by a ‘courier’. It involved him providing details of a delivery address, making arrangements for physical receipt of the equipment, providing his employer’s name and address to be used as consignee, completing a bank transfer of just over $8,000 to the overseas shipper, registering a business at his home address, and engaging and paying fees to entities in Australia to facilitate the customs clearance with the aim of taking delivery of the two welding machines containing the cocaine. In summary, and having had regard to all of the information and submissions available to this Court in relation to the respondent’s role in the importation, it is aptly described as low level, but nevertheless significant. 58 As to the respondent’s knowledge of the enterprise in which he involved himself, the sentencing judge accepted that he may not have known the precise amount or value of the cocaine being imported. However, he was clearly aware that it was cocaine and that it was a relatively significant importation. 59 As to the respondent’s motivation and anticipated reward, it is relevant that the respondent’s offending came about in circumstances where, the judge accepted, he was in a vulnerable state, in part because of his emotional condition, and in part because of his addiction to cocaine and his relationship with one of the principals in the offending. On the other hand, the respondent was plainly also motivated by the prospect of a reward in the form of cocaine to the value of between $6,000 and $8,000 for his own use, and some financial reward. Whilst the amount of that anticipated financial reward has not been revealed, it was accepted that the combined value of the cocaine and financial reward would have been less than the $40,000 that one of his co-offenders was to receive for his involvement in the importation. 60 As mentioned, the prosecution provided the sentencing judge and this Court with a schedule of comparator cases. On appeal, the prosecution focussed on what -- 12 of 17 -- [2024] SASCA 132 The Court 11 it submitted were the ‘generally comparable’ circumstances of the offending in R v Holland.19 61 In Holland, the defendant pleaded guilty to an offence, under ss 11.2 and 307.1 of the Criminal Code, of importing a commercial quantity of cocaine into Australia by aiding, abetting, counselling or procuring the commission of that offence by persons unknown. The maximum penalty was life imprisonment and/or a fine of $825,000. The defendant took steps to assist in arranging for the importation and delivery of an electric forklift truck which contained 14 packages of a cocaine substance weighing 9.98 kg (with purity levels of between 69.3 per cent and 74.2 per cent, and containing 7.24 kg of pure cocaine), with a street value of between $5.17 million and $6.25 million. The defendant had been unemployed for two years, was in financial difficulty, and was motivated in part by a desire to be able to pay off his debts. He received about $30,000 for his role. Whilst the respondent knew it was an illicit substance, he did not know what drug or quantity was to be imported. 62 The sentencing judge in Holland said the defendant’s role was ‘integral to the operation and involved a level of participation which was more sophisticated than the mere transportation of drugs’. However, her Honour accepted that the defendant was acting on instructions, was exposed to high risk (in a way which people high up in an organisation usually avoid), and was to receive comparatively little for his efforts. This led her Honour to describe his role as ‘at the lower end of the hierarchy’ involved in the importation. 63 From a starting point of imprisonment for 12 years, but after a 45 per cent reduction for the defendant’s guilty plea and co-operation with the authorities, the sentencing judge imposed a term of imprisonment of six years and eight months, with a non-parole period of four years. 64 On appeal, the prosecution contended that the sentence was manifestly inadequate, and fell outside the available range having regard to the sentences imposed in comparable matters. The New South Wales Court of Criminal Appeal dismissed the appeal, holding that the sentence was at the lower end of the available range, but was not manifestly inadequate.20 65 Whilst accepting that the circumstances in Holland were broadly comparable, the respondent sought to distinguish it on the basis that the defendant in that case had a greater role in the importation enterprise. It may be that the defendant in that case took a few more steps, and perhaps exercised a greater level of independence in the assistance he provided, than the respondent in the present case. However, the description of the steps taken by the defendant,21 and the acceptance that he was low in the hierarchy, suggest that he had a relatively similar 19 R v Holland (2011) 205 A Crim R 429. 20 R v Holland (2011) 205 A Crim R 429 at [2] (McClellan CJ at CL), [77] (Schmidt J, Buddin J agreeing). 21 R v Holland (2011) 205 A Crim R 429 at [13] (McClellan CJ at CL), [49], [70]-[74] (Schmidt J, Buddin J agreeing). -- 13 of 17 -- [2024] SASCA 132 The Court 12 role, and level of seniority, in the importation in that case to the role and seniority of the respondent in the present case. There is accordingly force in the prosecution submission as to the comparability of Holland with the circumstances of the respondent’s offending. 66 The prosecution also referred the Court to other decisions in its schedule, including Saab v R22 and AE v R.23 67 In Saab, the importation operation was very similar to the present case, involving a cocaine substance weighing about 21 kg, and containing 14.6 kg of pure cocaine. In sentencing the defendant, the sentencing judge started with a sentence of imprisonment for 15 years, with his co-accused having each been sentenced from a starting point of imprisonment for 9 years.24 In dismissing the defendant’s complaint on appeal of undue disparity, the Victorian Court of Appeal emphasised the defendant’s greater role than that of his co-accused.25 Whilst the role of the co-accused had been confined to arranging the collection of the equipment containing the cocaine, and the retrieval of the cocaine from that equipment, the defendant sat higher in the hierarchy. He was involved in liaising with the overseas organisers, and in supervising his co-accused. He stood to gain more than $100,000, whereas his co-accused stood to gain only a small fraction of this. The defendant was described as a ‘major figure in a large scale and highly organised drug importation’, whereas his co-accused were ‘very much subordinate’ to him. 68 In AE, the importation was again very similar, involving a cocaine substance weighing about 20 kg, and containing 15.4 kg of cocaine. Whilst the defendant was not a principal, it appears that he had a greater involvement in that importation than the respondent in the present case.26 He was involved in taking delivery of the granite tile blocks containing the cocaine, and retrieving the cocaine from the tiles. He was described as more than ‘a mere warehouse man’, with his role described as ‘essential’ and ‘fundamental’. But he did not have any role in financing the operation, or in the proposed distribution of the drug, and was ‘less than a principal’. He was sentenced on the basis that he knew only that more than two kilograms were to be imported, but that he was expecting to receive a ‘not insignificant’ financial reward. From an inferred starting point of imprisonment for 14 years, but after a reduction of 25 per cent for his plea of guilty, the defendant was sentenced to imprisonment for 10 years and six months. 69 On appeal, the New South Wales Court of Criminal Appeal held that the sentencing judge fell into error by not taking into account the hardship to the defendant’s family. However, their Honours nevertheless dismissed the appeal on the basis that, having regard to the seriousness of the offence, the penalty imposed 22 Saab v The Queen [2012] VSCA 165. 23 AE v R [2023] NSWCCA 74. 24 Saab v The Queen [2012] VSCA 165 at [2] (Buchanan, Weinberg and Mandie JJA). 25 Saab v The Queen [2012] VSCA 165 at [10]-[11], [65]-[67] (Buchanan, Weinberg and Mandie JJA). 26 AE v R [2023] NSWCCA 74 at [23] (Wilson J, Button and N Adams JJ agreeing). -- 14 of 17 -- [2024] SASCA 132 The Court 13 might be regarded as lenient, and the sentence they would impose would not be one which was less severe than that imposed at first instance.27 70 This Court was also referred to its decision in R v Yavuz.28 The defendant in that case pleaded guilty to one count of conspiring to import cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code. After a reduction of just over 20 per cent for his plea of guilty, the defendant received a head sentence of nine years and six months imprisonment. The defence and prosecution appeals against sentence were dismissed. Kourakis CJ expressed the view that the sentence was low by reference to comparable cases.29 However, his Honour declined to intervene on the bases that: there was uncertainty as to the amount of the cocaine that was to be imported, other than that it would exceed the commercial quantity of two kilograms; the defendant’s role was secondary to that of his co-offender; and the defendant was required to serve a substantial sentence before serving the sentence under appeal, thus detracting from the utility of allowing a prosecution appeal.30 71 In addition to the matters relevant to the seriousness of the respondent’s offending, it is of course necessary to have regard to his personal circumstances. These have been outlined earlier in these reasons, and are generally favourable. In particular, he has only limited antecedents and a commendable work history. He is well regarded by those who know him. He has expressed remorse and contrition. He has a history of substance abuse, but appears to have commenced his rehabilitation well by apparently abstaining from illicit drug use over the period since his arrest. According to Mr Wong, the respondent’s risk of re-offending is low, although, as noted earlier, there is perhaps some reason to be cautious given the risk of relapse in his substance abuse. 72 Having regard to all of the above, the sentence imposed was manifestly inadequate. Given the very significant scale of the importation, the low level but essential involvement reflected by the steps taken by the respondent, the not insignificant reward the respondent stood to make, and his generally unremarkable personal circumstances, the sentence imposed did not reflect the gravity of the respondent’s offending, and was not adequate to achieve the level of general deterrence which was required. Permission to appeal 73 As set out earlier, by reference to an extract from this Court’s reasons in R v Singh, a conclusion of manifest inadequacy in the sentence imposed is not a sufficient basis for a grant of permission to appeal. There will only be a grant of permission in the ‘rare and exceptional case’ where the principles of double jeopardy, and the hardship to the respondent associated with being twice vexed, are outweighed by the public policy reasons for intervening. 27 AE v R [2023] NSWCCA 74 at [1] (Button J), [51]-[55] (Wilson J), [56]-[60] (N Adams J). 28 R v Yavuz [2020] SASCFC 87. 29 R v Yavuz [2020] SASCFC 87 at [45] (Kourakis CJ, Peek and Livesey JJ agreeing). 30 R v Yavuz [2020] SASCFC 87 at [53] (Kourakis CJ, Peek and Livesey JJ agreeing). -- 15 of 17 -- [2024] SASCA 132 The Court 14 74 In contending that there is a sufficient public policy basis for intervening, the prosecution relies upon a combination of: (i) the need to maintain adequate standards of sentencing for federal drug importation offences; (ii) the identification of an error of principle in the sense of the imposition of a sentence which did not adequately reflect the level of general deterrence required in sentencing for such offences; and (iii) the sentence imposed being so low that leaving it to stand risks undermining public confidence in the administration of justice. 75 There is some force in each of these considerations. Their combined weight needs to be weighed against the hardship associated with vexing the respondent for a second time, and in particular exposing him to being resentenced on a basis that will result in a longer head sentence and non-parole period. Whilst that hardship is real, and significant, this is not a case in which the respondent has been released from custody, or is very soon to be released from custody. Nor has there been any relevant delay in the prosecution of the appeal. 76 All things considered, we are satisfied that this is an appropriate case in which to grant permission to appeal. However, before proceeding to the disposition of the appeal, we mention two further matters for the sake of completeness. 77 Whilst the respondent sought to highlight the limited assistance provided below, relative to the fairly detailed submissions sought to be advanced by the prosecution on appeal, particularly by reference to its schedule of cases and its reliance upon Holland, there is no proper basis for complaint. There has not been any relevant change in the prosecution attitude or approach on appeal. The prosecution provided the same schedule of cases to the sentencing judge. And the more detailed, and perhaps also more direct and specific, nature of the submissions made to this Court appropriately reflected the difference between first instance sentencing submissions and appeal submissions directed towards a complaint of manifest inadequacy in the sentence imposed. The approach taken by the prosecutor on appeal neither transgressed the boundary to be observed in light of the High Court’s decision in Barbaro v The Queen,31 nor provided any basis for declining to grant permission to appeal. 78 On the other hand, in granting permission to appeal, we have not attached any weight to the prosecution submission to the effect that a concern with parity vis-à-vis the respondent’s co-accused is a factor favouring a grant of permission to appeal. The prosecution is concerned to ensure that if the co-accused come to be sentenced, they not be in a position to advance an argument for parity which is based upon an erroneously low sentence. Whilst this concern is understandable, there are two responses to its contended relevance to the issue of leave to appeal. The first is that the different circumstances of the co-accused, particularly those higher in the hierarchy, may leave little scope for the parity principle to operate. The second is that even if this Court were to decline permission to appeal, it seems reasonable to expect that the reasons of this Court would nevertheless have some 31 Barbaro v The Queen (2014) 253 CLR 58. -- 16 of 17 -- [2024] SASCA 132 The Court 15 role in ensuring that the erroneously low sentence imposed upon the respondent is not given inappropriate significance when sentencing the co-accused. That said, in circumstances where we have decided that permission to appeal should be granted, it is not necessary to reach any definitive conclusion in relation to these concerns raised by the prosecution. Resentence 79 Having determined to grant permission to appeal, and that the sentence imposed is manifestly inadequate, the prosecution appeal must be allowed. To the extent there is any residual discretion, there would be no scope for its operation in the present case given that the concern to avoid double jeopardy has already been addressed through the prism of permission to appeal. 80 In resentencing the respondent, we take into account the principles and circumstances which have already been addressed at length in these reasons. 81 We commence with a notional head sentence of imprisonment for 12 years. There being no dispute about the reductions made by the sentencing judge, we reduce this to nine years imprisonment. 82 Bearing in mind the ability to attach some greater weight to circumstances personal to the respondent when fixing a non-parole period, and having regard to the favourable aspects of those circumstances mentioned above, including the respondent’s tentative steps towards rehabilitation, we fix a relatively lenient non- parole period of five years. 83 After allowing one month and 15 days for time served, we impose a head sentence of eight years, 10 months and 15 days imprisonment, with a non-parole period of four years, 10 months and 15 days. Orders 84 We grant permission to appeal, allow the appeal, set aside the sentence imposed below, and resentence the respondent to a sentence of imprisonment for a period of eight years, 10 months and 15 days, with a non-parole period of four years, 10 months and 15 days. The sentence and non-parole period are backdated to commence from the day the respondent was sentenced below, namely 26 February 2024. -- 17 of 17 --