BAE, Kangmin v R

1. [1]

   HOEBEN CJ at CL: I agree with Hall J.

2. [2]

   HALL J:

Introduction

1. [3]

   The applicant, Kangmin Bae, presently aged 34 years, was indicted on five counts under the Criminal Code (Cth) arising out of the importation of various quantities of border controlled drugs into Australia.

2. [4]

   On 12 January 2012, he entered guilty pleas to four counts under s 307.1(1) of the Criminal Code (Cth) (counts No 1, 2, 4 and 5 on the indictment) in that he imported a commercial quantity of a substance, being a border controlled drug, he having aided, abetted, counselled or procured the commission of the offences by another or others. The prescribed maximum penalty for an offence under that provision is imprisonment for life and/or a fine of 7,500 penalty units.

3. [5]

   On the lastmentioned date the applicant also entered a guilty plea to count 3 on the indictment, being an offence under s 307.2(1) of the same Act, namely, an offence of importing a marketable quantity of a substance being a border controlled drug (heroin), he having aided, abetted, counselled or procured the commission of the offence by another or others. The maximum penalty for such an offence is imprisonment for 25 years and/or a fine of 5,000 penalty units.

4. [6]

   On 4 April 2013 the applicant was sentenced by Hock DCJ.

The Offences

1. [7]

   Particulars of the offences charged are as follows:

The Sentences

1. [8]

   The details of the sentences of imprisonment which were partially accumulated on the applicant for each of the five counts was summarised in the Crown’s Written Submissions at [7] as follows:

2. [9]

   The overall effective sentence, accordingly, was a term of imprisonment of 20 years. The sentences as noted above commenced on 19 April 2010 and are to expire on 18 April 2030, with an effective non-parole period of 12 years commencing on 19 April 2010 to expire on 18 April 2022.

Grounds of Appeal

1. [10]

   The applicant in seeking leave to appeal the sentences imposed upon him relied upon the following grounds of appeal:

Evidence on Sentencing

1. [11]

   The following documentary evidence was admitted at the sentencing hearing:

The Crown Case on Sentence

1. [12]

   The relevant factual matters, including in particular the events between 23 October 2009 and 8 April 2010, were set out in considerable detail in the Statement of Facts (Exhibit A) which was cross-referenced to a Table, (Table 1) being the “Summary of DHL Consignments and Associated Evidence” (Exhibit B).

2. [13]

   The Statement of Facts noted that the applicant was the holder of a Korean passport. He had no record of criminal convictions in Australia or in South Korea.

3. [14]

   The Statement of Facts recorded that in the period 23 October 2009 to 8 April 2010, 64 cardboard boxes were consigned by DHL Express courier at Toronto, Canada, to 10 different addresses in Sydney. In total, 45 boxes were recovered by police at various locations. Eighteen boxes contained border controlled drugs. Details of the consignments were set out in the Statement of Facts at [44].

4. [15]

   In para [7] of the Statement of Facts it was stated:

5. [16]

   There was evidence linking the applicant, directly or indirectly, to each of the consignee addresses: Statement of Facts at [5].

6. [17]

   The applicant entered Australia at Sydney on 11 December 2009 on a flight from Toronto. The Crown contended:

   1. (1)

      That he did so in furtherance of a scheme to import border controlled drugs from Canada, namely, heroin, cocaine, methamphetamine and possibly other drugs by means of the boxes shipped by DHL.

   2. (2)

      His role was specifically to coordinate the receipt and the collection of the boxes, their safe storage and the subsequent transfer of the narcotics for distribution and sale.

   3. (3)

      The narcotics were contained in “Foodsaver” brand heat sealed plastic bags concealed between the surfaces of the two inner cardboard flaps that constituted the base of each box: Statement of Facts at [11].

7. [18]

   Facts relating to the consignment of drugs and associated investigations were conveniently summarised in the Crown’s Written Submissions dated 15 April 2015 at [13]-[17] which I reproduce below:

The Sentencing Hearing

1. [19]

   The applicant did not give evidence at the sentencing hearing. The report of Mr Tim Watson-Munro, psychologist, dated 14 February 2013 was as earlier noted, tendered on behalf of the applicant and the affidavit of Martin Ricci affirmed 15 February 2013 was also read. Mr Ricci was the applicant’s solicitor. His affidavit provided evidence as to the circumstances and events that elapsed prior to the applicant entering his pleas of guilty to the counts in the indictment.

2. [20]

   The sentencing judge, her Honour Judge Hock, set out in significant detail relevant factual matters concerning the offences. Her Honour’s sentencing remarks set out, inter alia, the facts referred to in the Crown’s Written Submissions at [14] and [15].

3. [21]

   Her Honour incorporated into the Remarks on Sentence a table which summarised quantitative and qualitative details and other information concerning the drugs seized by police (ROS at p 12). That table is reproduced below:

4. [22]

   The Statement of Agreed Facts recorded the following:

5. [23]

   In the Remarks on Sentence her Honour stated:

6. [24]

   Her Honour then proceeded to deal with the matters that were relevant to the applicant’s subjective case. It was noted that he was an intelligent man, an attribute he employed in committing what the sentencing judge referred to as very serious offences: ROS 16. Her Honour noted that the applicant had expressed remorse and shame to the psychologist and that his pleas were taken as indicating an acceptance of responsibility and a willingness to facilitate the course of justice: ROS 16.

7. [25]

   Her Honour further observed that whilst the applicant was to be sentenced for each individual count, there had to be some accumulation of the sentences “… to reflect his overall criminality and of course to reflect that each offence was not isolated”: ROS 16.

Applicant’s Submissions

1. [26]

   Mr Nash of counsel who appeared on behalf of the applicant in this Court provided detailed written submissions dated 12 November 2014. These were supplemented by oral submissions at the hearing.

2. [27]

   Mr Nash extracted relevant submissions and exchanges made during the course of submissions before the sentencing judge bearing upon this ground at [15]-[17] of his written submissions.

3. [28]

   In relation to Ground 1 – “use of innocent agents” – it was submitted that the extracted passages indicated that the sentencing judge took into account a matter that was considered to have increased the seriousness of the applicant’s offending, namely the use by the applicant of “innocent agents”.

4. [29]

   The submission for the applicant was that there was no direct or explicit evidence admitted in the sentencing proceedings that established that the applicant had solicited the addresses of completely innocent people, or otherwise used such people, to facilitate the importations in relation to which he was charged.

5. [30]

   At most, any evidence on this question was said to have been “equivocal and very limited”: Written Submissions on Behalf of the Applicant at [37].

6. [31]

   It was further submitted that the evidence did not identify which individuals, if any, the applicant dealt with to arrange the use of specified premises, or what the dealings with the agents were, or what the background of any individual he was said to have dealt with might have been.

7. [32]

   It was submitted that the objective seriousness of the offences should have been assessed without regard to the applicant’s claimed use of innocent agents to aid the importation of the drugs.

8. [33]

   In relation to Ground 2 it was submitted, in effect, that the degree of the accumulation of the sentences and the sentencing judge’s findings relevant to the issue of accumulation ought to be viewed in the context of the Crown’s submissions at the sentencing hearing on that issue: Written Submissions on Behalf of the Applicant at [37]. Passages from the transcript were set out in that paragraph of the submissions.

9. [34]

   It was noted in this respect that the Crown’s submissions referred to the fact that the five offences committed by the applicant were “separate and distinct offences”, and that this was then followed by another Crown submission that they “formed part of a course of conduct consisting of a series of the same criminality” and that this was contradictory.

10. [35]

    The submission for the applicant was that a proper construction of the temporal context in which the offences were committed supported a greater degree of concurrency. It was submitted in this respect:

11. [36]

    It was also submitted that the sentencing judge had had regard to the fact that the offences were “not isolated” in the assessment of both objective seriousness as well as when deciding the degree of accumulation between the sentences imposed for each. To do so was said to involve “double counting”: Written Submissions on behalf of the Applicant at [40].

12. [37]

    Finally, in relation to this ground, reference was made to the sentencing judge’s observation that there had to be accumulation to reflect “… his overall criminality and of course to reflect that each offence was not isolated” (ROS 16)

13. [38]

    It was also submitted that it was not appropriate to take into account the “overall criminality” by reference to multiple allegations that related to uncharged matters. It was contended that her Honour fell into error by doing so.

14. [39]

    It was noted that taking into account the discount of 15% for the applicant’s guilty plea, the starting point for the individual sentences for the s 307.1(1) offences was just over 11 years 9 months. For the sentence imposed in relation to the offence the subject of Count 3 the starting point was said to be just under 5 years and 11 months: Written Submissions on Behalf of the Applicant at [46].

15. [40]

    The written submissions for the applicant in relation to Ground 3 acknowledged, in a general way, the limitations on a comparative analysis of sentencing cases for the purpose of demonstrating manifest excess in relation to a particular sentence.

16. [41]

    By reference to categories or groups of cases referred to in DPP v De La Rosa (2010) 79 NSWLR 1, it was submitted:

17. [42]

    The submissions for the applicant accordingly centred upon an analysis which was to a large extent based upon the grouping of cases concerned with the importation of commercial quantities of narcotics as discussed in DPP v De La Rosa (2010) 79 NSWLR 1 at [207]-[215] and the decision of this Court in R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429. Further reference to these cases is made below.

18. [43]

    It was submitted for the applicant:

19. [44]

    In addition based on an analysis in the submissions of recent cases which were said to provide a comparative analysis of sentences, the sentences in them were relied upon to support the submission that the applicant’s sentence was manifestly excessive.

20. [45]

    It was accordingly submitted for the applicant that this Court should conclude that the sentences were affected by appellable error and that other sentences were warranted in law: s 6(3) Criminal Appeal Act 1912.

21. [46]

    In respect of Grounds 1 and 2, if either ground was upheld, it was noted that the Court would receive any additional material in the exercise of the sentencing discretion afresh: Kentwell v The Queen [2014] HCA 37 at [42]-[43].

22. [47]

    If Ground 2 was upheld, then, it was submitted, the Court would proceed to resentence so as to reduce the sentence: Written Submissions on Behalf of the Applicant at [62].

Ground 1

1. [48]

   The Crown noted that in accordance with s 16A(2) of the Crimes Act 1914 (Cth) the sentencing judge was required to take into account a number of matters as are relevant and known to the court including:

2. [49]

   In relation to this ground it was contended that her Honour was required to take into account, as a part of the nature and circumstances of the offences, that an aspect of the offending concerned the applicant having approached completely innocent people to provide their addresses for the receipt of the boxes containing the prohibited drugs.

3. [50]

   It was noted that her Honour did not quantify the extent to which this aspect was taken into account nor, it was contended, was her Honour obliged to do so: Crown Written Submissions at [22].

4. [51]

   Generally speaking, the Crown submitted, offending conduct that involves the use of innocent and unwitting third parties stands in a different context to offending conduct involving only the offender. In this respect it was argued that, amongst other matters, the use of innocent persons suggested a determination of one who is prepared to compromise and prejudice the interests of third parties in exercising the criminal scheme and it demonstrates the extent of planning involved in the offending conduct: Crown Written Submissions at [23].

5. [52]

   The Crown further submitted that it was not correct to say that there was no direct or indirect evidence on this issue, referring in this regard to the analysis in the Agreed Statement of Facts and the table of consignments, Exhibit B.

6. [53]

   Whilst the Crown sought to support its submissions primarily by reference to the person, Ow, who the applicant procured to receive boxes, the Crown also argued that it was implicit in the Agreed Facts that the applicant utilised the Pitt Street premises of a specified student agency.

7. [54]

   Accordingly, the Crown submitted no error had been demonstrated in the finding of fact as to “innocent agents” nor any error as to the weight that the sentencing judge gave to that matter.

Ground 2

1. [55]

   The Crown in its submissions relied upon the well-established principle that questions of the degree of accumulation and concurrency are matters for sentencing discretion. Reference was made to the recent decision in Sabongi v R [2015] NSWCCA 25 (Hamill J at [43], Hoeben CJ at CL and Johnson J agreeing).

2. [56]

   The Crown submission was, in essence, that in the absence of any identifiable error of principle in the sentencing judgment in this case, this Court would not intervene.

3. [57]

   In relation to the question of structuring of sentences for multiple offences the Crown relied upon the decisions of this Court in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 per Howie J at [27]; R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52] and Sabra v R [2015] NSWCCA 38 at [59], [62] in relation to the relevant principles to be applied.

4. [58]

   The Crown contended that the sentences imposed by the sentencing judge, taking into account the extent of the accumulation of sentences, were consistent with the principles as discussed and enunciated in those authorities.

5. [59]

   The five offences for which the applicant was sentenced, the Crown contended, while falling within the one overall enterprise, were nonetheless distinct in a number of respects. These included the timing of the offences, the substances to which they related and the locations where the substances were found: Crown Written Submissions at [33].

6. [60]

   The Crown submitted that case law authority established that the fact that distinct offences fall within one larger overall criminal enterprise does not preclude some accumulation of sentences for the individual offences: Crown Written Submissions at [34].

7. [61]

   In respect of the submission as to the “uncharged” criminal conduct, the Crown observed that the sentencing judge in stating that the effective overall sentence was “of course to reflect that each offence was not isolated” (ROS at 16), was not referring to uncharged criminal conduct. The Crown submission on that point was:

8. [62]

   The Crown further submitted that the fixing of a single non-parole period of 12 years was consistent with what was said to be a carefully applied and principled approach: Crown Written Submissions at [37].

9. [63]

   The Crown identified the following matters as relevant to the objective seriousness of the offences:

10. [64]

    The Crown submissions also identified the subjective features which the sentencing judge took account of in sentencing the applicant at [19] of the Crown’s Written Submissions as follows:

Ground 3

1. [65]

   The Crown referred to well-established principles according to which an appellate court may interfere with a discretionary judgment of a sentencing judge: Crown Submissions at [39]-[40]; Lowndes v The Queen (1999) 195 CLR 665 at [15].

2. [66]

   The limitations upon a comparative analysis of cases for the purpose of demonstrating manifest excess in a particular sentence were emphasised: Crown Submissions at [44]-[46]. It was observed, in particular, that the applicant’s submissions based upon the extensive analysis of categories of cases as discussed in De La Rosa were of limited assistance.

3. [67]

   The Crown submitted that the appellant had failed to demonstrate any specific error or defect on the part of the sentencing judge in sentencing the applicant. Nor, it was contended, had the applicant demonstrated that the sentence imposed was outside the applicable range of sentences indicated by the table of comparative sentence decisions relied upon at the sentencing hearing.

4. [68]

   The Crown submitted that the sentence imposed on the applicant could not be viewed as manifestly excessive.

Ground 1

1. [69]

   In relation to the first ground of appeal (asserted error by taking into account, in assessing the applicant’s role, his use of “innocent agents”) I do not consider, with respect, that there is any substance to this ground.

2. [70]

   Initial reference to the matter of “innocent agents” appears to have arisen in the course of oral submissions by counsel then appearing for the applicant at the sentence hearing. In the transcript of the sentencing hearing, 15 February 2013 at p 16, reference was there made by Counsel for the applicant to “ten different addresses” following which counsel stated that the sentencing judge, having presided at the trials in relation to the applicant’s co-offenders, would have a higher level of knowledge “… in relation to the innocent agents”: T 16:20-25.

3. [71]

   Reference to the concept of “innocent agent or agents” was also made in the course of the Crown’s submissions to the sentencing judge at T 20:15-50. Counsel appearing for the Crown referred to the Table (a reference to Exhibit B) which recorded the destinations of the boxes of drugs imported. Counsel stated in this respect:

4. [72]

   It is relevant to note for the purposes of Ground 1, that Exhibit B identified five separate deliveries of boxes to the premises of the student agency in Pitt Street, being deliveries made on 23 October 2009, 5 November 2009, 4 March and 31 March 2010 and on 7 April 2010.

5. [73]

   Even confining the sentencing judge’s reference to “innocent agents” to those five deliveries, the facts as to those deliveries provided a sound evidentiary basis for the sentencing judge’s finding that the applicant’s role included “… approaching completely innocent people to provide their addresses for receipt of the boxes”: ROS 14. It was open to her Honour to find that the applicant used the occupiers of the student agency premises in Pitt Street as “innocent agents” for the purpose of effecting delivery of the boxes containing the prohibited drugs in the course of his role in the importation scheme.

6. [74]

   Finally, it is to be noted that her Honour’s finding in relation to the applicant’s use of innocent people in the manner referred to was but one aspect of the applicant’s role, a role that in fact had several aspects to it, as described by her Honour in the course of her Remarks on Sentence.

7. [75]

   Ground 1, in my opinion, should be dismissed.

Ground 2

1. [76]

   In relation to Ground 2 which asserts error in the sentencing judge accumulating individual sentences to the degree to which she did, the specific facts concerning the importations and the applicant’s role in relation to those facts established that his offending was critical in relation to separate and serious offences. The Remarks on Sentence referred to those facts in considerable detail, including in particular, the facts as to the specific DHL consignments, the number of boxes and their contents following seizure by police: ROS 10-14.

2. [77]

   In relation to the five seizures made by police on 13 April 2010, 16 April 2010, including the three separate seizures on 19 April 2010, her Honour set out details as to the nature of the drugs seized, their bulk weight and pure weight, the purity levels and the location referable to each of the counts 1, 2, 3, 4 and 5 on the indictment.

3. [78]

   Her Honour had regard to the total pure weight of the drugs seized (cocaine, methylamphetamine and heroin) was 12.893 kilograms (almost 13 kilograms).

4. [79]

   The evidence established (in particular, Table 1 in Exhibit B) that a large number of DHL consignments were involved in all 24 consignments comprising 64 boxes.

5. [80]

   As identified in the Remarks on Sentence, the applicant acted in a trusted position to coordinate the arrival and receipt of the various consignments of drugs in Sydney. As her Honour stated, his part in the operation required a considerable degree of planning and preparation. Her Honour accurately stated that the counts on the indictment were not isolated but were instances of a well-organised scheme for importation of three different illegal substances into Australia: ROS 14.

6. [81]

   Whilst each of the offences in Counts 1 to 5 were committed within a period of months as part of one scheme or enterprise, they each involved separate acts of aiding/abetting the prohibited importation of significant quantities of prohibited drugs. Each involved its own deliberate planned contravention of the Crimes Act. In my opinion, the fact that they took place in the course of a single enterprise does not mean that they may be properly characterised as merely involving a single course of conduct.

7. [82]

   The mere temporal relationship between the series of offences, does not, of course, mean that by virtue of that fact the criminality of one importation can or does encompass the criminality of another or other offences. Each, on the evidence, involved a deliberate and very serious contravention of the provisions of s 307.1(1) (Counts 1, 2, 4 and 5) and s 307.2(1) (Count 3) of the Criminal Code.

8. [83]

   The principles that apply to questions of the degree of accumulation and concurrency are well-established: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7]; R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52] and Sabongi v R [2015] NSWCCA 25 at [43].

9. [84]

   The proper exercise of the judicial discretion on sentence does not, in my assessment, support the proposition advanced for the applicant with respect to the facts of the present case, that matters such as “temporal context”, commission of the offences “in the context of a single enterprise” or that the fact that the offences “had features in common” or arose “in the course of one episode” point to an erroneous exercise of the discretion by the sentencing judge resulting in insufficient concurrency of sentences imposed upon the applicant.

10. [85]

    In Cahyadi, Howie J observed:

11. [86]

    The present case did not involve “a single episode of criminality with common features”. Rather it involved a scheme or enterprise pursuant to which there was undertaken a number of discrete and independent criminal acts, each, as earlier stated involving deliberate and very serious contraventions of the Criminal Code.

12. [87]

    The structure of the sentences imposed upon the applicant, in my opinion, reflects a fair and balanced exercise of judicial discretion.

13. [88]

    I have earlier referred to the fact that in the applicant’s Written Submissions it was argued that it was apparent from passages in the sentencing remarks, extracted into the submissions for the applicant, that her Honour had regard to the fact that the offences were “not isolated” in her assessment of, firstly, the objective seriousness of the offences and, secondly, in determining the degree of accumulation between the sentences imposed for each. It was submitted that this would involve “double counting” that aspect of the criminality and that this amounted to an error.

14. [89]

    For convenience, I again set out below the relevant extracts in the Remarks on Sentence. At p 14 her Honour observed:

15. [90]

    When dealing with the issue of accumulation, her Honour observed:

16. [91]

    I do not consider there was any double counting involved. I accept the Crown submission that the references by her Honour to “not isolated” in each of the above extracts, were not directed to the same object. When first used, in context, the phrase was referring to the proposition that the offences in Counts 1 to 5 were not isolated given the fact that there was considerable evidence of uncharged conduct by the applicant. This was indicated by the evidence established that there had been 64 boxes containing drugs, some of which were located and some of which were not.

17. [92]

    The second reference to “not isolated” arose in a context of the remarks that was directed to a different issue, namely, the accumulation of sentences relevant to the issue of totality. I accordingly reject the submission made on behalf of the applicant on this aspect.

18. [93]

    Finally, there is no basis for the submission that her Honour determined the degree of accumulation by taking into account uncharged acts on the issue of “overall criminality of the offences charged”. I accept the Crown’s submission that her Honour, in stating that the overall sentence was “of course to reflect that each offence was not isolated”, was not referring to uncharged criminal conduct but that those words were a reference to the five offences for which the applicant was being sentenced in the context of an overarching scheme. I accept that no double counting or impermissible considerations entered into the exercise of her Honour’s discretion.

19. [94]

    The determination, in particular, of the overall or effective non-parole period of 12 years represented, in my opinion, a proper exercise of the discretion.

20. [95]

    There is no merit in Ground 2. The ground should be dismissed.

Ground 3

1. [96]

   As earlier indicated, when discussing the submissions made on behalf of the applicant, considerable reliance was placed in relation to this ground upon the decisions of this Court in De La Rosa and Holland.

2. [97]

   Those submissions, as earlier indicated, placed heavy emphasis upon the sentencing analysis, based on other cases, undertaken by McClellan CJ at CL in De La Rosa in which his Honour categorised or grouped cases concerned with the importation of commercial quantities of narcotics into four groups, in particular, at [207]-[215] of his Honour’s judgment.

3. [98]

   Firstly, it is to be noted that his Honour subsequently in Holland, supra, at [3] referred to his judgment in De La Rosa and observed that some of his remarks “… may have been misunderstood”. In addition, McClellan CJ at CL there observed:

4. [99]

   However, with respect, the approach taken in the submissions for the applicant sought to establish that the aggregate sentence was manifestly excessive by reference to the characteristics referred to by McClellan CJ at CL in De La Rosa including those in group 2. The submission was that the applicant’s case should be categorised as below the “second group”. McClellan CJ at CL in De La Rosa stated that the head sentences in the decisions in his Honour’s second group ranged from 18 to 24.5 years and the non-parole periods were between 10 and 16 years.

5. [100]

   His Honour’s fourth category involved head sentences ranging from 8 years to 15 years with a non-parole period starting at 4 years and ending at 11 years: at [211]-[213].

6. [101]

   As the Crown observed in its written submissions at [42], the judgment of McClellan CJ at CL in De La Rosa itself stated that it was not a guideline judgment.

7. [102]

   In Thuong Nguyen v R [2012] NSWCCA 184, Davies J (with whom Allsop P and Latham J agreed) observed at [38]:

8. [103]

   It is, in addition, to be noted that whether or not the applicant could be categorised as being in or below group 2 in the groups referred to in De La Rosa is doubtful. McClellan CJ at CL in respect of that group referred to the fact that the majority of the offenders had played roles described as “essential” or “vital” but which were not principal roles. Accepting that the sentencing judge found that the applicant in the present case was not the overall principal of the operation, his role was nonetheless significant as he was a person trusted to coordinate the arrival and receipt of the drugs in Sydney: Remarks on Sentence at p 14.

9. [104]

   I am of the opinion that descriptions such as “essential” or “vital” though relevant to this case assist only to a limited extent in identifying the applicant’s criminality. Rather it is necessary to undertake, as the sentencing judge did, an analysis of the facts concerning the nature of the operations with which he was involved, the extent of planning, the overall scheme of which the subject importations were but part, the nature of the prohibited drugs, their amounts, the organisational role and other roles undertaken by the applicant.

10. [105]

    I do not consider that the decision of this Court in Holland, supra, provides the applicant with support in his contention that the sentence was manifestly excessive. In Holland the respondent in a Crown appeal was also a Canadian national but who resided in the Philippines. He was aged 57 years. He had engaged accountants to assist in the establishment of an apparently legitimate business, received monies to assist him and maintained contact with his Canadian associates.

11. [106]

    In that case the respondent had communicated with the customs brokerage firm as to the landing and delivery of a container. Examination of a forklift within the container revealed that hidden inside its batteries were 14 packages of white powder weighing in total 9,984.1 grams. On examination the packages were found to contain cocaine.

12. [107]

    The Court had regard, of course, to the particular subjective circumstances associated with the respondent who was given the benefit of a 45% reduction in his sentence for assistance and his guilty plea. The result was that from a starting point of 12 years, a term of imprisonment of 6 years and 8 months with a non-parole period of 4 years was imposed. The non-parole period represented 60% of the overall term.

13. [108]

    The applicant also relied upon a table of comparative sentence decisions which was referred to at the sentence hearing entitled “Drugs – Cocaine – Import Commercial Quantity” downloaded from the Public Defender’s Office.

14. [109]

    I do not consider that a comparison based on the sentences in the above material relied upon by the applicant establishes that the sentences imposed by the sentencing judge in the present case was outside what might be considered to be an applicable range of sentences. The sentencing judge, with respect, made appropriate findings as to the objective seriousness of the offences, took into account the subjective factors, addressed the issue of totality and made provision for an appropriate accumulation of sentences to reflect the applicant’s overall criminality.

15. [110]

    Her Honour having addressed and taken into account all relevant factors and circumstances, imposed sentences that in my opinion were appropriate and not manifestly excessive.

16. [111]

    I am of the opinion that this ground of appeal should be dismissed.

17. [112]

    I have accordingly concluded that the following orders should be made:

    1. (1)

       The application for leave to appeal be granted.

    2. (2)

       The appeal be dismissed.

18. [113]

    WILSON J: I agree with Hall J.