R v Phelps; R v Zalapa

1. [1]

   BATHURST CJ: I agree with the orders proposed by Hoeben CJ at CL and with His Honour’s reasons.

2. [2]

   HOEBEN CJ at CL:

Nature of proceedings

1. [3]

   On 6 April 2018 his Honour sentenced the respondent Phelps for the commission of an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to s 11.1(1) and s 307.5(1) of the Criminal Code (Cth). His Honour imposed a sentence of 4 years and 6 months imprisonment, commencing 19 March 2018 and expiring 18 September 2022, and set a non-parole period of 2 years and 3 months. The respondent Phelps is eligible for release on parole on 18 June 2020.

2. [4]

   On 31 May 2018 his Honour sentenced the respondent Zalapa to imprisonment for 9 years, commencing 12 September 2016 and expiring 11 September 2025, with a non-parole period of 5 years and 3 months expiring 11 December 2021. The respondent Zalapa was sentenced for his commission of an offence of importing a commercial quantity of a border controlled drug, namely cocaine, contrary to s 307.1(1) of the Criminal Code and for dealing with money intending it to become an instrument of crime ($10,000) contrary to s 400.6(1) of the Criminal Code.

3. [5]

   In the Zalapa matter there was a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) before the Court as follows:

4. [6]

   His Honour set out the indicative sentences for the offences of the respondent Zalapa as follows:

5. [7]

   The CDPP contended that each of the sentences imposed by the sentencing judge was not a sentence of a severity appropriate in all the circumstances and was manifestly inadequate. The CDPP submitted that these appeals were brought to establish matters of principle for the governance and guidance of courts having the duty of sentencing for offences of this nature and to maintain adequate standards of punishment for offences of this kind by correcting the manifest inadequacy and inconsistency of the sentences imposed by his Honour.

6. [8]

   In the case of the respondent Phelps, the CDPP relied upon the following grounds of appeal:

Ground 2 – The learned sentencing judge erred in applying a discount of 10% for the respondent's assistance to authorities

1. [9]

   In the case of the respondent Zalapa, the CDPP relied upon a single ground of appeal:

FACTUAL BACKGROUND

1. [10]

   The same Agreed Statement of Facts was placed before his Honour in each matter.

2. [11]

   On 11 September 2016, a DHL air freight consignment arrived at Sydney. The consignment consisted of a cardboard box, purporting to contain a “food sausage stuffer”. The package had been sent from a consignor address in Los Angeles, California. The consignee was listed as “Caleb Parker of 14 Monitor Street, Adamstown Heights, NSW”.

3. [12]

   The consignment was intercepted and examined by Australian Border Force (ABF) officers. The cardboard box was found to contain 16 plastic wrapped and heat-seal bagged, compressed, kilogram bricks of cocaine. Subsequent analysis confirmed that the pure weight of the cocaine in the bricks was 11.99 kilograms. The wholesale value of the drugs was estimated to be $2.6 million and the street value to be $3.8 million.

4. [13]

   The Australian Federal Police (AFP) seized the consignment and replaced the cocaine with an inert substance in order to conduct a controlled delivery of the consignment.

5. [14]

   The intercepted consignment was similar in packaging and appearance to two earlier air freight consignments of concealed cocaine that had been sent to Australia from Los Angeles via DHL. Those two consignments had been intercepted and seized by the ABF on 3 August 2015 and 22 May 2016. The August 2015 consignment had contained 10 blocks of cocaine. The May 2016 consignment had contained 15 blocks of cocaine.

6. [15]

   The AFP had conducted controlled deliveries of these earlier consignments but neither was collected. AFP investigations revealed that each of these consignments had been tracked on the DHL website by a Sydney-based man named Bennett Schwartz.

7. [16]

   On 2 September 2016 Schwartz was arrested and charged for his involvement in the importation of the two earlier consignments. At the time of his arrest, he was in possession of a Phantom Secure encrypted Blackberry mobile phone (the Schwartz phone). Police seized the device and between 3 and 12 September 2016, as part of a controlled operation, used the Schwartz phone to send and receive messages to and from contacts stored on the Blackberry device concerning the importation, arrival and delivery of the September 2016 consignment.

8. [17]

   One of the contacts listed on the Schwartz phone was “Dr Octopuss 88”, which was a user profile for a Blackberry Phantom Secure encrypted device used by the respondent Zalapa.

9. [18]

   On 8 and 9 September 2016 the Schwartz phone received messages from Zalapa concerning the importation of the consignment. Zalapa advised that the consignment would be packed as a “sausage maker” and gave the consignor details and the DHL tracking number for the package.

10. [19]

    Between 3 and 11 September 2016 the AFP received and sent messages on the Schwartz phone from and to Zalapa about arrangements for a cash drop of $40,000 to be made at a shopping centre car park. The money was intended to be part payment to Schwartz for the “next run”, i.e. a future prospective drug importation.

11. [20]

    In accordance with the arrangements made with Zalapa, on 11 September 2016 police parked an unlocked car in the Eastgate Shopping Centre car park. Later that day, Zalapa placed a bag containing the $40,000 in cash behind the passenger seat of the car. Zalapa’s dealings with the cash formed the basis for his offence of dealing with money intended to become an instrument of crime.

12. [21]

    Early in the morning on 12 September 2016, the AFP received and sent messages on the Schwartz phone from and to Zalapa concerning the status and delivery of the consignment. On the same day, the AFP used the Schwartz phone to exchange messages with another contact on the Schwartz phone, listed as “Business Class 88”, to confirm that everything was “all good” for the delivery. The user of that profile was identified as Jonathan Fagan. Fagan was later arrested and charged by police for his involvement in numerous drug importations, including the earlier August 2015 consignment, that used the DHL air freight methodology.

13. [22]

    That morning the respondent Zalapa, purporting to be the consignee “Caleb” and using a false consignee telephone number, rang DHL twice to enquire about the status and delivery of the consignment. Zalapa was advised that the consignment had been forwarded for delivery to “eParcel”, the courier service of Australia Post. Following each call, Zalapa exchanged Blackberry messages with the Schwartz phone to discuss the consignment and to provide the information received from DHL. During these exchanges, Zalapa confirmed that they had a “guy sitting out front the house today and tomorrow to intercept it”.

14. [23]

    Later that day Zalapa used the false consignee telephone number to ring Australia Post about the delivery of the consignment. Following that call, Zalapa exchanged messages with the Schwartz phone to provide an update about his contact with Australia Post. During that exchange, Zalapa again confirmed “we literally have to pay a guy to sit there 3 days in a row at the address 7am–5pm” and advised that the consignee address was a house at the top of a hill where an old couple resided.

15. [24]

    At about 4.17pm that day, the AFP conducted a controlled delivery of the consignment at the purported consignee address. At that time, the respondent Phelps was waiting outside the premises and took delivery of the consignment, signing the name “Caleb William Parker” and producing a false driver’s licence, bearing his photograph, but containing the false consignee name and address.

16. [25]

    The respondent Phelps then placed the consignment into the boot of his car and drove from the consignee address. He was arrested a short time later by the AFP. Police searched his car and found an encrypted Blackberry device in a hidden compartment. Phelps refused to provide police with the password for the device. He was arrested and subsequently declined to be interviewed by police.

17. [26]

    Within a short period of time, Zalapa became aware of Phelps’ arrest. He then exchanged messages with the Schwartz phone in which he speculated as to whether there had been a “police controlled delivery”. He advised that the situation was “real bad” and “also Amps will be gone” and stated that he was going to “ditch burner”. Zalapa subsequently discarded a “burner” mobile phone and SIM card that he had been using. The reference to “Amps” was the code name given to a person understood by police to be a corrupt inside contact known to Schwartz. Zalapa was arrested by the AFP a short time later.

18. [27]

    Following his arrest, police searched Zalapa’s Potts Point residence where they seized a further four encrypted Blackberry Phantom Secure mobile phones, two iPhones and $34,685 in cash. Zalapa refused to provide the passwords for the mobile phones. These last matters gave rise to two offences on the s 16BA schedule.

19. [28]

    When Zalapa was arrested, he participated in a “no comment” interview with police.

The respondent Phelps

1. [29]

   The sentence proceedings in respect of the respondent Phelps were conducted before his Honour on 6 April 2018. The CDPP tendered an Agreed Statement of Facts which outlined the facts in respect of both respondents, the respondent Phelps’ criminal history, a Corrective Services Custodial History report and a confidential envelope containing a confidential affidavit and the CDPP submissions relating to Phelps’ co-operation with law enforcement authorities. The CDPP also provided general written submissions and a schedule of comparable sentencing decisions.

2. [30]

   On behalf of Phelps, there was tendered a report of a psychologist, Stephen Woods, Phelps’ resume, a report of Dr Arthur Belthikiotos, an offer of employment letter, a notice to him to stand down from the NSW Rural Fire Service, documents relating to his tertiary studies, numerous references from friends and family and a letter of apology from him. Further documents setting out the variations to his bail conditions over time were also tendered on his behalf.

3. [31]

   The respondent Phelps did not give evidence.

4. [32]

   When sentencing Phelps on 6 April 2018 his Honour made findings with respect to the nature and circumstances of the offence:

5. [33]

   In addition to those matters, his Honour noted the importance of general deterrence, which was directed towards deterring people from engaging in the activities which Phelps did.

6. [34]

   His Honour noted and took into account the following subjective features which related to the respondent Phelps.

The respondent Zalapa

1. [35]

   The sentence proceedings in respect of the respondent Zalapa were conducted before his Honour on 26 April and 31 May 2018.

2. [36]

   The CDPP tendered the same Agreed Statement of Facts as had been tendered in the case against the respondent Phelps and provided the court with a signed copy of the s 16BA Crimes Act schedule. The CDPP also provided written submissions and two schedules of comparable sentencing decisions.

3. [37]

   The respondent Zalapa tendered a report of a psychologist, Dr Jason Gallate, a bundle of Justice Health records produced under subpoena and a character reference from his cousin, Jacqueline Zalapa. Written submissions and supplementary written submissions were provided on his behalf.

4. [38]

   The respondent Zalapa gave evidence. In that evidence he affirmed the history which had been set out in the psychologist’s report and was cross-examined. Further evidence was given by a former employer, Roy Holmberg, his uncle Juan Zalapa, his mother Leanne Zalapa and by a relative by marriage, Gary Lung.

5. [39]

   In sentencing the respondent Zalapa his Honour noted the following circumstances and made the following findings:

6. [40]

   His Honour also noted and made the following findings:

7. [41]

   His Honour made the following findings in respect of Zalapa’s subjective case:

Ground 1 – The sentence imposed is manifestly inadequate

1. [42]

   The CDPP submitted that the length of the sentence imposed on Phelps was such that this Court would conclude that there had been a misapplication of principle and that his Honour must have necessarily erred in the exercise of his sentencing discretion. The CDPP noted that when one allowed for the 35 per cent reduction for the guilty plea and co-operation with law enforcement authorities, the starting point for the head sentence must have been 6 years and 9 months with a non-parole period in the order of 3 years and 5 months. The CDPP submitted that the sentence imposed on Phelps was not of a severity appropriate in all the circumstances of the offence and was explicable by the sentencing judge giving too much weight to Phelps’ subjective circumstances.

2. [43]

   The CDPP submitted that the offence was serious with a maximum penalty of imprisonment for life and that the quantity of cocaine equated to almost six times the commercial quantity threshold for that border controlled drug. The CDPP submitted that the value of the cocaine was relevant, even though there was no evidence that Phelps knew of the quantity or value of the drugs which he attempted to possess.

3. [44]

   The CDPP submitted that Phelps’ role was not simply fleeting or peripheral and that he was not simply a passive recipient of the package. There was some planning, given the presentation of the false driver's licence. The CDPP submitted that although Phelps may have carried out a limited number of physical acts in committing the offence, that did not mean that his moral culpability was limited. This is because Phelps was aware that there was a real risk that what he collected would be a substantial quantity of drugs. He was motivated to commit the offence by the expectation of financial reward.

4. [45]

   The CDPP submitted that general deterrence was a matter which should be given chief weight in the sentencing exercise because of the difficulty of detecting offences of this kind and the detrimental social consequences which may follow from the commission of such offences. It was submitted that any involvement in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence would not be served.

5. [46]

   It was submitted that the sentence imposed on the respondent failed to provide adequate punishment given the seriousness of the offending. This was particularly so when the non-parole period was inexplicably fixed at 50 per cent of the head sentence.

6. [47]

   The CDPP submitted that while matters personal to Phelps were relevant and should be taken into account in the sentencing exercise, it is well established that undue weight should not be given to those subjective circumstances if the result is disproportionate to the objective seriousness of the criminality. The CDPP submitted that although Phelps was a person of good character, such a consideration should be given less weight in offences of this kind which depend upon the offender being a person of otherwise good character.

7. [48]

   The CDPP relied upon the following cases, which were said to involve similar offending and which were a yardstick against which the asserted manifest inadequacy of the sentence imposed on Phelps could be examined. The CDPP submitted that the cases relied upon involved both commercial and marketable quantities of border controlled drugs. The CDPP submitted that while acknowledging that it is necessary to examine the factors and sentencing principles which led to the imposition of past sentences, the fact that similar or greater sentences have been imposed in similar circumstances upon offenders who have committed lesser offences involving lesser quantities of border controlled drugs demonstrated the manifest inadequacy of the sentence imposed upon the respondent Phelps.

8. [49]

   The CDPP relied upon the following cases, a summary of which was attached to the CDPP’s written submissions – Chan, Lo and Nguyen v R [2010] NSWCCA 153; Webber v R [2014] NSWCCA 111; Zhang v The Queen [2010] NSWCCA 105; R v Aaron Tran; Peter Tran; Hoang Nguyen [2013] NSWCCA 136; 233 A Crim R 167; DPP (Cth) v Thomas [2016] VSCA 237; 262 A Crim R 198; Dao v The Queen [2011] NSWCCA 183; Tsai v R [2016] NSWCCA 73; R v Onyebuchi; Ex parte Director of Public Prosecutions (Cth) [2016] QCA 143; R v Boimah [2017] QCA 50; R v Ostrowski; Ex parte Attorney General (Cth) [2018] QCA 62; R v Karan [2013] NSWCCA 53; Stemler v R [2017] NSWCCA 320; Alavy v R [2014] VSCA 25; Eriyo v R [2015] NSWCCA 16; R v Todoroski [2010] NSWCCA 75; 267 ALR 593; R v UE [2016] QCA 58; Ojielumhen v The Queen [2014] ACTCA 28; Manyathela v The Queen [2015] ACTCA 13; Omorogbe v R [2013] NSWCCA 201; 234 A Crim R 556.

Consideration

1. [50]

   The principles applicable to Crown appeals were summarised in R v Barker [2016] NSWCCA 193 at [52]-[55] (Hoeben CJ at CL (Bathurst CJ and Price J agreeing)):

2. [51]

   The above passages have been cited with approval in a number of recent cases: R v Merillo [2017] NSWCCA 173 at [75]; R v CTG [2017] NSWCCA 163 at [50]; R v Kijurina [2017] NSWCCA 117 at [63]; R v Nolan [2017] NSWCCA 91 at [57].

3. [52]

   Of course identification of error is only a threshold question in a Crown appeal. Before the Court moves to resentence a respondent, the Crown must establish that the discretion to do so ought be exercised – CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346.

4. [53]

   The principles which constrain a Crown appeal were succinctly summarised by Johnson J in R v Cahill [2015] NSWCCA 53 (Leeming JA and Schmidt J agreeing) at [91] where his Honour said:

5. [54]

   There is no issue that the offence committed by Phelps was serious. That is evident from the maximum penalty of life imprisonment prescribed by the legislature. That having been said, there is a broad spectrum of offending which comes within the ambit of that offence. In that regard, the CDPP focused upon the substantial quantity of the drug involved, i.e. almost 12kgs and therefore almost six times the commercial quantity threshold for cocaine. That consideration, however important it is, is not necessarily determinative of the sentence which should be imposed in this case.

6. [55]

   The respondent did not know the quantity of drugs involved, nor the type of drug, nor is there evidence that he was aware of the sophisticated nature of the syndicate which had employed him. The mental element in his offending was that he was reckless as to both the quantity and type of drugs involved. In that context, he candidly conceded that he did suspect that what he was asked to collect were drugs.

7. [56]

   The sentencing proceedings were conducted on the basis of an Agreed Statement of Facts. In the absence of further evidence, that document should not be used for the purpose of inviting either his Honour or this Court to infer facts adverse to Phelps which were not evident on the face of the document. Any such inference, of course, would have to meet the standard that it was beyond reasonable doubt. In particular, there was no evidence as to the length of time during which the respondent had knowledge of the enterprise nor of his involvement in it. All that could be said is that some preparation and planning was involved in that he was able to present a false licence. That of itself does not indicate that Phelps had been involved in the enterprise for a considerable time. Such a document would take little time to prepare.

8. [57]

   Ultimately it was necessary for the respondent to be sentenced for his actions on 12 September 2016. These were the only matters identified in the Agreed Statement of Facts. Accordingly, his Honour’s finding on the basis of the Agreed Facts that the respondent’s role was to be characterised as “peripheral” and “passive” was well open to him. His Honour’s finding to that effect has not been challenged, nor could it be.

9. [58]

   As was made clear in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [70] per Gaudron, Gummow and Hayne JJ one must have regard not only to the quantity of drugs involved but importantly, the offender’s role. “The mere quantity of drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. What is more important is the role of the offender and the level of his or her participation in the offence …” (R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44 at [33] per Wood CJ at CL; Sully and Dowd JJ agreeing).

10. [59]

    On the basis of the Agreed Facts, the factual finding made by his Honour as to the level of the respondent’s participation in the offending appropriately determined the respondent’s role:

11. [60]

    The fact that Phelps did not play any part in the importation of the drugs was a factor relevant to the assessment of his level of culpability. So too was the absence of any evidence or suggestion that he was to be involved in anything beyond the mere transportation of the drugs for others. As this Court noted in El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at [33] per Spigelman CJ (James and Simpson JJ agreeing):

12. [61]

    In that regard, the CDPP conceded in her written submissions (at [45]) that Phelps “carried out a limited number of physical acts”. Given his limited role, both in terms of length of time and the actions involved, Phelps’ moral culpability was modest and adequately assessed by his Honour.

13. [62]

    Moreover, the task of imposing a sentence of appropriate severity is not limited to an assessment only of the objective gravity. In Wong v The Queen Gaudron, Gummow and Hayne JJ said at [71]:

14. [63]

    As the CDPP accepted that the respondent had a significant subjective case, as a result of the material before the court, his Honour (as he was entitled to do) concluded “The evidence establishes a reasonable basis for finding that his prospects of rehabilitation are good and that his likelihood of reoffending is low” (Sentence Judgment [29]). His Honour also appropriately took into account Phelps’ prior good character. At Sentence judgment [11] his Honour said “… he was refreshingly candid when explaining that he was motivated by financial gain and that he accepted full responsibility for his actions”. His Honour also properly took into account the “onerous” bail conditions to which the respondent had been subject.

15. [64]

    The CDPP was critical of the fact that the non-parole period was assessed by his Honour at 50 percent of he head sentence. The criticism was that the non-parole period was unexplained. This criticism misunderstands the manner in which the non-parole is determined in Commonwealth offences. In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [44] the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

16. [65]

    There is no reason to think that his Honour did not apply faithfully this long line of authority exemplified by such cases as Power v The Queen [1974] HCA 26; 131 CLR 623, Deakin v The Queen [1984] HCA 31; 58 ALJR 367 and Bugmy v The Queen [1990] HCA 18; 169 CLR 525.

17. [66]

    Far from being unexplained, the non-parole period was set as it was because his Honour was satisfied that such a period was the minimum period of custody required before the respondent could become eligible for release to parole. Given the respondent’s limited role in the enterprise and his positive subjective case, both the head sentence and non-parole period were not manifestly inadequate in the sense of being unjust or unfair.

18. [67]

    This conclusion is not undermined by the table of cases put forward by the CDPP. An assessment of this table of cases must be approached with a degree of care. In Director of Public Prosecutions (Cth) v Blackman; Director of Public Prosecutions (Cth) v Jomaa [2014] NSWCCA 90 Bellew J (Beazley P and R A Hulme J agreeing) said at [65]:

19. [68]

    As was observed recently by Simpson JA (with whom Button and N Adams JJ agreed) in R v Nakash [2017] NSWCCA 196 at [10]:

20. [69]

    Not surprisingly, each of the cases conveniently included in the CDPP’s schedule, is distinguishable from the present case and substantially distinguishable from other cases in the schedule. That selection of cases cannot support the proposition that the sentence imposed in this case is manifestly inadequate. As Adamson J said in Vandeventer v R [2013] NSWCCA 33 at [45] (McClellan CJ at CL and Rothman J agreeing):

21. [70]

    In Dang v R [2014] NSWCCA 47 at [55] Adamson J (with whom Simpson and Davies JJ agreed) elaborated on her earlier comments as follows:

22. [71]

    A fair analysis of the remarks on sentence reveals that his Honour applied all relevant principles of law appropriately to the facts found by him. Significantly, the CDPP is unable to point to any portion of the remarks on sentence where it might even be suggested that undue weight has been given to the respondent’s subjective case nor has any finding of fact been challenged. This ground of appeal has not been made out.

Ground 2 – The learned sentencing judge erred in applying a discount of 10% for the respondent's assistance to authorities

1. [72]

   Little more needs to be said concerning the detail of Phelps’ assistance to the authorities other than it involved the surrender of four firearms to police. The detail is contained in confidential Exhibit B.

2. [73]

   The CDPP noted that the surrender of the firearms was unaccompanied by any further information that might assist the police in relation to the provenance or use of the firearms. Phelps did not claim that the firearms were his, nor did he provide any further information as to their source. There was no information or evidence before the sentencing judge that the firearms had been used, or were to be used, in the commission of any offence or that the possession of the firearms (by whomever had possession of them before they were handed over by the respondent) was unlawful. The provision of the firearms had not led to any arrests, nor to anyone being charged or prosecuted. The provision of the firearms was not related to any ongoing, or possible future, investigations.

3. [74]

   In those circumstances, the CDPP submitted that s 16A(2)(h) of the Crimes Act (Cth) had no application. That section relevantly provides:

4. [75]

   The CDPP submitted that the facts of the assistance did not engage any of the relevant requirements of subs 16A(2)(h). She submitted that it was in no way related to these offences or to another offence which was being investigated. The CDPP submitted that in those circumstances a further discount of 10 percent, beyond the 25 percent already allowed for the plea of guilty, was inappropriate and involved error on the part of the sentencing judge.

5. [76]

   In making that submission, the CDPP accepted that the assistance was a matter which could be properly taken into account by way of mitigation but that would be pursuant to s 16A(1) of the Crimes Act (Cth) which requires a court to have regard to “all the circumstances of the offence”. The CDPP submitted that any such discount would be purely nominal and certainly not as high as 10 percent. That was because nothing was known about the firearms, i.e. where they came from, whether they had been used, what their purpose was and who the owner was. All that had occurred was the voluntary surrender of some items which had a capacity to be used in criminal activity.

Consideration

1. [77]

   It seems clear for the reasons given by the CDPP that a discount of 10 per cent was excessive and did involve error on the part of the sentencing judge. Phelps’ assistance was not full and frank and was not of a kind that justified the rationales and public interest considerations upon which sentence discounts are awarded for co-operation with law enforcement authorities.

2. [78]

   Those purposes were usefully summarised by Garling J (with whom Hoeben JA and Latham J agreed) in Isaac v R [2012] NSWCCA 195 at [46] where his Honour said:

3. [79]

   That is not to say, as the CDPP properly conceded, that the surrender of the weapons could not be taken into account as a mitigating factor. It could and should have been. The better approach would have been for the sentencing judge to acknowledge the assistance and the fact that it was being taken into account as a matter in mitigation but without specifying a specific percentage. This is because the assistance did not come within the terms of s 16(2)(h).

4. [80]

   Although error has been found, I am mindful of the purposes of a Crown appeal. The simple identification of error, particularly error of the kind which occurred in this case, would not in my opinion justify setting aside the sentence and re-sentencing the respondent. This is particularly so when one has regard to the finding that the sentence was not manifestly inadequate. I am, of course, also mindful of the residual discretion. Nothing has been put by the CDPP which would persuade me that the Court should not exercise the residual discretion to dismiss the appeal.

5. [81]

   It follows from the above that although this ground of appeal has been made out, the appeal by the Crown against the sentence imposed on the respondent Phelps should be dismissed.

Ground 1 – The indicative sentences are manifestly inadequate and as a result the aggregate sentence and non-parole period imposed on the respondent are manifestly inadequate

1. [82]

   The CDPP submitted that the length of the aggregate sentence imposed was such that the Court would conclude that there had been a misapplication of principle and that the sentencing judge must necessarily have erred in the exercise of his sentencing discretion. The CDPP accepted that while it is the aggregate sentence which is the main focus of the appeal, it is appropriate to consider the individual indicated sentences. The CDPP submitted that although each of the indicative sentences was inadequate, it was the indicated sentence in respect of the principal drug importation offence that gave rise to error when his Honour calculated the aggregate sentence. No challenge is made to the notional accumulation of 1 year between the indicated sentences.

2. [83]

   The CDPP submitted that the manifestly inadequate aggregate sentence was explicable due to his Honour giving too much weight to the respondent Zalapa’s subjective circumstances and not enough weight to the objective nature and circumstances of the drug importation offence and the sentencing purposes of punishment, general deterrence and denunciation. In that regard, the CDPP relied upon the statements of principle, the authorities referred to and the arguments put, in relation to Ground 1 of the appeal concerning the respondent Phelps.

3. [84]

   The CDPP noted the following matters:

4. [85]

   The CDPP submitted that when one took those matters into account, a significantly greater aggregate sentence than 9 years imprisonment was required.

5. [86]

   The CDPP stressed the following matters in support of that proposition:

6. [87]

   The CDPP submitted that the nature and extent of the role of Zalapa in the importation offence called for a significant and stern sentence of imprisonment. The CDPP submitted that the sentence imposed by his Honour did not meet that requirement, failed to adequately punish Zalapa and did not adequately reflect the importance of general deterrence. In that regard, the CDPP noted that when sentencing Zalapa, his Honour did not refer to the principle of general deterrence in his sentence judgment. The CDPP submitted that the absence of any such reference strongly suggested that his Honour had failed to take that consideration into account.

7. [88]

   The CDPP submitted that the respondent’s subjective case, when balanced against the objective seriousness of the offending and his moral culpability, was not such as to significantly mitigate the sentence to be imposed. The CDPP submitted that his previous good character was of limited weight in an offence such as this which could only be committed by a person of previous good character. The CDPP noted that by his own admission Zalapa had been involved in transporting people carrying bags reckless as to whether they contained drugs and collecting and delivering money which he believed to be the proceeds of crime at the request of someone he believed was involved in something illegal “most likely drugs” (T 13.6-13.42).

8. [89]

   The CDPP accepted that Zalapa’s expressions of remorse and excellent prospects of rehabilitation were relevant factors to be taken into account by his Honour but those factors could not be given such weight as to produce an aggregate sentence that failed to comprehend the objective seriousness of the offending. The CDPP submitted that the length of the aggregate sentence was so patently low that it must be concluded that his Honour gave Zalapa’s subjective features undue weight.

9. [90]

   The CDPP also relied upon the same schedule of cases which had been placed before the Court in the Phelps matter (see [49] hereof). In submissions in this Court, counsel for the CDPP described the purpose of providing that schedule of cases to the Court as follows:

Consideration

1. [91]

   The principles applicable to Crown appeals have already been stated (at [50] hereof). In particular, a claim of manifest inadequacy requires the party advancing that complaint to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach – Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]; Hili v The Queen; Jones v The Queen at [58].

2. [92]

   A claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen at [6]. In Harris v R [2015] NSWCCA 81 Adamson J [at 46] (with whom Basten JA and R A Hulme J agreed) observed that where there is in substance only one ground of appeal, manifest inadequacy, identification of specific error is not required.

3. [93]

   Although his Honour did not specifically refer to the principle of general deterrence in the Zalapa sentence judgment, it is clear from his Honour’s approach and from his sentence judgment in respect of Phelps, that he was well aware of that principle and took it into account when imposing the aggregate sentence on Zalapa.

4. [94]

   It should also be noted that his Honour did make two relatively minor errors in his fact finding. His Honour characterised one of the SMS messages sent by Zalapa to the Schwartz phone as “instructions emanating from Zalapa to the effect of ‘pack as a sausage maker not as a juice press’. Be ultra careful checking the track” (Sentence judgment [6]). It is clear that the final part of that message came directly from Zalapa but not the earlier part dealing with the packaging of the drugs. In the Agreed Facts those words are expressed as a question. Moreover, there was no evidence that Zalapa had any connection with the packaging of the drug consignment which apparently occurred in the United States. Finally, the finding of fact disregards his Honour’s inability to determine to what extent the information conveyed to the Schwartz phone involved Zalapa simply passing on what he had been told by “X”.

5. [95]

   His Honour also found that Zalapa “communicated with other people involved in the importation and directed them to arrange for the physical collection of the consignment” (Sentence judgment [16]). Such a finding was not open on the evidence. There are no text messages capable of supporting an inference that Zalapa directed any person in relation to the collection of the consignment. Zalapa had never met or communicated with Phelps. It was never put to Zalapa in cross-examination that he had ever directed anyone to arrange for the physical collection of the consignment.

6. [96]

   When considering this ground of appeal, it also needs to be kept in mind that the CDPP is bound by the way in which the Crown conducted the sentence proceedings. In those proceedings, the Crown frequently referred to the sentence imposed on Schwartz, not as a co-offender but as a comparable case to which reference could be made when sentencing Zalapa (R v Schwartz [2018] NSWDC 118 (Berman SC, DCJ)).

7. [97]

   Schwartz was sentenced in respect of the two earlier importations of cocaine, which had been intercepted by the ABF and AFP. Schwartz received a sentence of imprisonment for 6 years with a non-parole period of 3½ years. In the sentence proceedings in relation to Zalapa, the Crown submitted to his Honour that Zalapa had a more important role in the syndicate than did Schwartz and should receive a longer sentence. Significantly, no appeal has been brought by the CDPP against the sentence imposed on Schwartz.

8. [98]

   The comparison with Schwartz and the sentence which he received is important. The totality of the messages exchanged between Zalapa and Schwartz established that Zalapa believed that Schwartz was the only person able to contact “Amp”. Even when members of the syndicate realised that law enforcement had become involved, they turned to Schwartz to try and contact “Amp”. Schwartz and Zalapa were involved in the same syndicate employing the exact same methods and the same compartmentalised structure to effect the importation. For both offenders the tracking of the package was the principal task that facilitated the importation. As indicated, the sentence imposed on Zalapa was more severe than that imposed on Schwartz which reflected the differences in their respective cases and the submission made by the Crown in the Zalapa sentence proceedings.

9. [99]

   Schwartz was sentenced for the two importations which preceded the one involving Zalapa and the sentence imposed on him reflected a discount of 40 per cent. Accordingly, the sentence imposed on Zalapa needed to be adjusted to accommodate that discount. Implicit in the position taken by the Crown in the sentence proceedings is that the sentence imposed upon Schwartz was an appropriate guidepost against which to compare Zalapa’s sentence. The Crown submitted that in the context of the Schwartz sentence, the Court in the respondent’s case needed to impose a sentence that reflected the additional proceeds of crime charge and the matters on the schedule.

10. [100]

    The Crown’s position was put in the sentencing proceedings as follows:

11. [101]

    The position advanced on behalf of Zalapa in the sentence proceedings was that the sentence imposed upon Schwartz was a better comparator in the instant case than unrelated sentences imposed in other cases, in particular, the cases relied upon by the Crown. At no point during the sentence proceedings did the Crown assert that the sentence imposed upon Schwartz was inadequate as a comparable case.

12. [102]

    It is apparent when one compares the two cases that his Honour accepted the appropriateness of those submissions, both by the Crown and Zalapa. The starting point for the sentence imposed upon Schwartz for each importation was 5 years 7 months imprisonment, as opposed to the starting point of 10 years for the respondent for this importation. The starting point for the partially accumulated sentences for Schwartz (for both importations) was approximately 8 years 4 months whilst for Zalapa, it was 11 years 3 months.

13. [103]

    The longer sentence imposed upon Zalapa appropriately reflected the additional tasks undertaken by him while recognising that the total quantity of cocaine relevant to his matter was half that involved in the combined Schwartz importation. That conformed with the Crown submissions during sentence proceedings. That his Honour had particular regard to the sentence imposed upon Schwartz is demonstrated by the fact that the parole/non-parole ratio imposed in both cases was exactly the same. Most particularly, Zalapa received a significantly more severe sentence than did Schwartz and the starting points were also demonstrably higher.

14. [104]

    When considering the adequacy of the sentence imposed on Zalapa, it also needs to be kept in mind that part of the sophistication of the drug importing syndicate was that the roles of various persons whom the police have been able to discover were confined because of the compartmentalised nature of the syndicate’s operation. None of the persons so far identified by the police has been able or prepared to describe the structure of the syndicate but only the particular person or persons that he was directly dealing with. Accordingly, although Zalapa had an important role in the syndicate, it had that limitation. Most particularly although Zalapa had been involved in the delivery of money on earlier occasions, this was the first time he was directly involved in a drug importation.

15. [105]

    Zalapa had a powerful subjective case. There was no issue that he suffered from significant mental health difficulties, including longstanding anxiety and panic disorders. His first contact with mental health practitioners occurred when he was very young. Dr Gallate opined that:

16. [106]

    Zalapa’s anxiety was assessed by Dr Gallate as “on the edge of in extremis” whilst he was in custody (Gallate report, p 8.7). Accordingly, Zalapa’s psychological condition was a matter that the court had to take into account particularly that he would find his time in custody more onerous as a result of his mental health difficulties.

17. [107]

    There was no challenge by the Crown to his Honour’s findings that Zalapa had excellent prospects of rehabilitation and that he was remorseful. The respondent had no criminal record, although his Honour did note his admissions of criminal conduct for some period of time leading up to the offences for which he was sentenced.

18. [108]

    Because of the way in which the Crown conducted its case in the sentence proceedings, with its references to and comparison with, the Schwartz sentence, the schedule of cases provided by the Crown in both this and the Phelps matter can be of only limited assistance. There are also the considerations identified at [69]-[70] hereof.

19. [109]

    Because the Crown adopted the sentence imposed upon Schwartz as an appropriate guidepost without criticism of the result, this case is an inapposite one in which to lay down any principle or guidance for judges dealing with drug importation cases). Given that consideration and Zalapa’s strong subjective case, I am not persuaded that either indicative sentence was demonstrably wrong or that the aggregate sentence was manifestly inadequate. This ground of appeal has not been made out.

20. [110]

    The orders which I propose are:

    1. (1)

       In the matter of Phelps, the Crown appeal is dismissed.

    2. (2)

       In the matter of Zalapa, the Crown appeal is dismissed.

21. [111]

    FAGAN J: I agree with Hoeben CJ at CL.