Kahler v R (Cth)

HOEBEN CJ at CL:

The offences were:

The maximum penalty for each offence and the sentences imposed by her Honour are set out in the following table:

The applicant’s non-parole period expires on 31 August 2022. An offence of knowingly participate in a criminal group, contrary to s 93T(1) of the Crimes Act 1900 (NSW) was taken into account on a Form 1.

The applicant relies upon two grounds of appeal:

In November 2015, a Strike Force was established by the Organised Crime Squad, State Command to investigate a money laundering syndicate. As a result of that investigation, Mr David Redshaw was identified as laundering cash through the syndicate. Ongoing investigations established that Mr Redshaw was associated with a group of men, including Mr Fullagar and Mr Musgrove, involved in the importation of the prohibited drug cocaine into Sydney from Thailand using “drug mules”. The investigation monitored the activities of the group between June 2016 to March 2017.

In July 2016, investigators became aware that the applicant was an associate of Mr Fullagar and Mr Musgrove. On 19 July 2016, the applicant arrived in Sydney from Thailand and checked into the Ibis Hotel at Mascot.

On 8 August 2016, the applicant arrived in Sydney from Thailand again checking into the Ibis Hotel at Mascot. Electronic surveillance of his hotel room established that the applicant was, after showering, throwing small cylindrical objects into his bathroom sink. Those objects contained cocaine that the applicant had ingested.

On 9 August 2016, the applicant was picked up in a car by Mr Redshaw in Mascot and dropped off about 10 minutes later. During that time, the applicant supplied Mr Redshaw with the pellets containing cocaine. It was agreed that the amount was less than 1kg.

On 11 August 2016, the applicant met with Mr Fullagar. At that time he was paid a large amount of cash for supplying drugs to the criminal group.

On 1 September 2016, the applicant arrived at Sydney International Airport from Thailand. Before boarding the flight, he had swallowed 111 sealed capsules that contained 1,198g of a white powder. That powder was analysed and contained 808.6g of pure cocaine and had a purity of 67.5 per cent.

On arrival, the applicant presented his incoming passenger card that denied bringing prohibited substances into the country. The applicant was selected for examination by Australian Border Force officers and body scan images identified anomalies. The applicant subsequently made admissions to officers to the effect that he had internally concealed items and that it would take six to eight hours to pass these. Over three days, while hospitalised, the applicant passed 111 hard cylindrical shaped pellets. The applicant refused to participate in a record of interview.

Travel records showed that the applicant, who resided in Thailand, had travelled between Thailand and Australia on 22 occasions between July 2014 and September 2016.

The applicant’s sentence proceedings were heard together with the sentence proceedings for three co-offenders, Messrs Redshaw, Fullagar and Musgrove. The applicant and his co-offenders were charged with a number of different offences. The sentence proceedings were conducted over three days. On the supply charge, the State Crown tendered an Agreed Facts on Sentence document as part of the Crown bundle on sentence. That bundle also included the applicant’s criminal history.

On the importation charge, the Commonwealth Crown tendered an Agreed Statement of Facts as part of the Crown bundle. It also tendered two pre-sentence reports and the applicant’s criminal history. A table of comparable cases was provided to the sentencing judge.

The applicant did not give evidence. A psychological report, seven character references and a record of attendance at remand addiction sessions were tendered on his behalf.

On the basis that these were joint sentence proceedings, the sentencing judge summarised the facts of the matter, expressly noting that there were agreed facts relevant to each offender. Her Honour also noted that no direct parity issues arose between the four co-offenders, given the different offences and the combination of offences with which they were charged.

Her Honour dealt first with the co-offender, Mr Redshaw, then Mr Musgrove, before sentencing the applicant and finally Mr Fullagar. This order was not based on any hierarchical arrangement between the offenders.

In relation to the applicant, her Honour dealt separately with the supply charge and the importation charge. In the course of her Honour’s sentence judgment, her Honour noted and took into account matters relevant to the objective seriousness and nature and circumstances of both charges.

Her Honour assessed the objective seriousness and nature and circumstances of the supply offence, which included that:

The sentencing judge took into account the following subjective features relating to the applicant, relying primarily on the psychological report from Dr Jonathon Adams:

In relation to the supply charge, her Honour found that the applicant's strong subjective case was the basis of a finding of special circumstances.

Her Honour noted and took into account the following matters relevant to the objective seriousness and nature and circumstances of the applicant's importation charge:

Her Honour found the following subjective circumstances associated with the importation offence:

It was common ground that the applicant’s criminal history showed no record of convictions in NSW and a previous drive while intoxicated charge committed in Queensland in 1986.

The Crown (Cth) set out in the Agreed Statement of Facts that “the offender has no relevant criminal history”. The Crown (State) set out in its submissions that the applicant “has no criminal history that could be considered relevant to his sentence for this offence”.

The applicant submitted that her Honour had erred in failing to take into account properly or at all as a mitigating factor, his lack of prior relevant criminal conduct and his previous good character.

In support of that proposition, the applicant submitted that when sentencing the other three co-offenders, her Honour did variously note a lack of criminal antecedents (in relation to Messrs Redshaw and Fullagar) and the presence of such criminal antecedents in the case of Mr Musgrove. The applicant submitted that in so treating the co-offenders, her Honour’s failure to note the applicant’s lack of previous convictions and prior good character can only be seen as indicating a failure on the part of the sentencing judge to take into account this mitigating factor.

It is accepted that the sentencing judge made no express reference to the applicant’s lack of prior convictions nor specifically stated that the applicant’s good character was taken into account in the course of sentencing. It is not clear, however, that her Honour’s failure to refer to the applicant’s prior good character and absence of prior criminal conduct should lead to a conclusion that these factors were not given any weight. In that regard, the circumstances of this case and the content of her Honour’s reasons, need to be more closely examined.

Importantly, there are a number of individual references in the sentence proceedings, that combined with her Honour’s ultimate finding as to the strength of the applicant’s subjective case, indicate that her Honour more likely than not, did have regard to these factors.

In relation to the supply offence, her Honour:

In relation to the importation offence her Honour:

In those circumstances, there is no compelling basis to conclude that the judge did not have regard to the lack of criminal convictions and prior good character of the applicant. It can be inferred that the sentencing judge, when concluding that the applicant’s subjective case formed the basis for the finding of special circumstances for the supply offence, took into account both the lack of prior criminal convictions and his good character at the time of that offence.

It follows that it is open to conclude that the sentencing judge was also conscious of these factors and took them into account when she was sentencing for the Commonwealth offence.

Given the extremely comprehensive nature of the judgment, involving as it did four co-offenders, and that in the case of three of them specific reference was made to good character and the presence or absence of a criminal record, it should not necessarily be concluded that these matters were ignored in the case of the applicant.

In that regard, what was said by Howie J (with whom Levine and Hidden JJ agreed) in R v Carr (2002) 135 A Crim R 171; [2002] NSWCCA 434 remains apposite:

As noted by the applicant, her Honour specifically had regard to the lack of any criminal convictions on the part of Messrs Redshaw and Fullagar, stating that the fact that they had no previous convictions was a mitigating factor. When her Honour came to sentence Mr Musgrove, who did have a criminal record, it was expressly noted that his criminal record consisted mainly of matters which were irrelevant to the sentence proceedings. It follows, therefore, that the absence to any reference to a criminal record as regards the applicant, cannot be relied upon to establish that her Honour did not have regard to the applicant’s lack of a criminal record and his good character.

The strong likelihood is that her Honour did have regard to those matters but omitted to refer to it in the course of what was a complex sentencing exercise involving four co-offenders.

It is also necessary to keep in mind that the absence of an express reference to the applicant’s lack of a criminal record and prior good character took place in relation to offending in circumstances where the fact of prior good character is of less weight in the sentencing exercise i.e., supply and importation offences. The Commonwealth Crown in its written submissions on sentence specifically noted this fact (AB 232-233).

It follows that this ground of appeal has not been made out.

The applicant did not assert that the sentence for the supply offence was manifestly excessive. Nor did he submit that the extent of the accumulation of the import charge on the supply charge was such as to give rise to manifest excess. The thrust of the applicant’s submission was that the individual sentence imposed for the importation offence was itself manifestly excessive in circumstances where there was:

The applicant submitted that by way of reliance on comparable cases, the decision in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 reviewed a large number of cases when setting out the principles which were relevant to the applicant’s mental condition and were indicative of why the sentence for the importation charge was manifestly excessive.

The relevant principles applicable to a ground of appeal raising manifest excess were comprehensively set out by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 where his Honour said:

As set out in the above extract, there is no single correct sentence and sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]). As Hayne J stated in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128]:

As has been explained by this Court on many occasions, the assessment of the objective seriousness of offences is an evaluative task which is classically within the discretion of a sentencing judge. This Court is very slow to intervene and determine such matters for itself (Mulato v Regina [2006] NSWCCA 282 at [37]). Here, the sentencing judge concluded that the objective seriousness of the importation offence gave rise to a significant breach of s 307.2(1), even taking into account the mental state of the applicant at the time. This finding reflected the Crown’s written submissions that specifically characterised the applicant’s conduct as involving a significant offence. Her Honour set out her specific findings as to objective seriousness which led to her sentence for the importation offence at [23] hereof.

In the course of oral submissions, the Crown emphasised the relevance of the weight of the drug, in circumstances where the applicant knew the amount that he was ingesting, which was over 1kg gross. The Crown stressed that the amount of cocaine imported, was 400 times the marketable quantity. Her Honour took into account that the conduct was not impulsive and had been repeated. Accordingly, a finding of significant breach of s 307.2(1) was well open to the sentencing judge. The applicant’s strong subjective case was clearly taken into account by her Honour in the instinctive synthesis process.

As already indicated, the lack of criminal convictions prior to the supply charge was implicitly taken into account. What was also taken into account was that in an offence of this nature, prior good character was generally of less weight as a mitigating factor. It should be noted that at the time the import offence was committed, the applicant had already committed the supply offence.

In relation to comparable cases, and in particular the principles set out in Director of Public Prosecutions (Cth) v De La Rosa, the observations of Simpson J (with whom Adams and McCallum JJ agreed) in Aslan v R [2014] NSWCCA 114 need to be kept in mind. There, her Honour said:

In relation to comparable cases generally, Ierace J (with whom Bathurst CJ and Price J agreed) stated in Wright v R [2019] NSWCCA 134:

In Vandeventer v R [2013] NSWCCA 33 Adamson J said:

Recent comments by this Court in Moodie v R [2020] NSWCCA 160 (in particular at [83]) and Smith v R [2020] NSWCCA 181 at [78] and [90]-[91] are to similar effect.

The High Court and this Court have warned on a number of occasions against using labels to determine the role or importance of the actions of an offender in relation to drug supply and drug importation. In this case, the part played by the applicant was significant. The amount of the cocaine imported was substantial and well in excess of the marketable quantity threshold. Further, as her Honour found, the applicant was well aware of the amount. This was not an impulsive or isolated offence on the part of the applicant but had been repeated on earlier occasions. This of itself distinguished this matter from many of the cases considered in Director of Public Prosecutions (Cth) v De La Rosa. Importantly, the part played by the applicant was fundamental to the importation. Without his physical actions to bring the drugs into Australia, there would be no importation or subsequent distribution.

While the sentence for the importation is stern, it is not of a level that would suggest a misapplication of principle. A sentence of 7 years and 9 months imprisonment with a non-parole period of 5 years was well within a sound exercise of the sentencing discretion in this case and has not been shown to be manifestly excessive. It follows that the applicant has failed to discharge the onus which he carried to establish that the sentence imposed by her Honour was unreasonable or plainly unjust.

Ground of Appeal 2 has not been made out.

Rule 3B(2) of the Criminal Appeal Rules (NSW) confers a discretion upon the Court to extend the three month period for an appeal against sentence. Whether such an extension should be granted is to be determined by a consideration of the interests of justice of the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Relevant to the determination of the interests of justice is the prospect of success should the extension be granted: Kentwell v The Queen at [33]. The consideration of the merits must be assessed by reference to s 6(3) of the Criminal Appeal Act: Kentwell v The Queen at [34]. Ordinarily, it will be necessary to consider the nature of and reasons for any delay, the prospects of the proposed appeal and the significance to the parties of the granting or refusing of the application for an extension of time: Crump v R [2016] NSWCCA 2.

This appeal is in respect of the sentence imposed by the sentencing judge and reasons for the sentence which was imposed and pronounced on 3 May 2019. The application for extension of time was filed on 8 September 2020, some 1 year and 4 months after the applicant was sentenced. The reasons provided in that notice state that the applicant has been at all times desirous of pursuing a sentence appeal. However, counsel was not briefed until May 2020. No explanation has been provided for the delay in briefing counsel, other than by reference to the COVID-19 pandemic which only explains a small portion of the delay.

Finally, the appeal has been fully argued and the applicant has failed to establish the grounds of appeal relied upon. It follows that the interests of justice do not require an extension of time. Accordingly, I propose the following orders:

BELLEW J: I have had the advantage of reading in draft the judgment of Hoeben CJ at CL. I wish to add the following observations.

In the course of oral submissions in relation to ground 1, counsel for each party made reference to the decision of this Court in BG v R [2020] NSWCCA 295. In that case, the sentencing judge found that the applicant was a person of otherwise good character, but did not address the weight that he ascribed to that finding. I concluded (with the concurrence of Simpson AJA) that the sentencing judge had overlooked the observations of McHugh J in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [23] and following regarding the necessity to determine, if an offender is found to be of good character, what weight is to be given to that fact.

I am satisfied that the sentencing judge in the present case took into account the fact that the applicant was a person of prior good character, even though her Honour did not state such a finding in express terms. It was specifically submitted by the Crown who appeared on sentence that such a finding, if made, was one which was deserving of limited weight. Again, although not expressly stated, I am satisfied that her Honour accepted that submission and approached the matter accordingly. In my view, on a reading of her Honour’s reasons as a whole, this was not a case in which the question of what weight was to be given to the applicant’s good character was overlooked. In that respect, the circumstances of the present case are distinguishable from those in BG in which error was found.

In terms of ground 2, the Crown who appeared in the court below made the following submission to the sentencing judge (AB 61):

In terms of the role, it's not contended by the Crown that the offender was anything above a bare courier.

Couched in those terms, such a submission was unhelpful. Characterising an offender by reference to labels such as “courier" or a “principal" must not obscure the assessment of what the offender did: The Queen v Olbrich (1999) 199 CLR 270 279; [1999] HCA 54 at [19].

What the applicant did in the present case was import into Australia a significant quantity of a prohibited drug. In doing so, he helped to facilitate and promote large-scale international drug trafficking. Even if it is accepted that his place in a notional hierarchy was low, that does not mean that his role was insignificant. Without the applicant performing the role that he did, the importation could not have been effected: Gwardys v R [2019] NSWCCA 62 at [43]; Klomfar v R [2019] NSWCCA 61 at [40].

I agree with the orders proposed by Hoeben CJ at CL.

WRIGHT J: I agree with Hoeben CJ at CL and with the additional observations of Bellew J.