Mohr v R

1. [1]

   BELL CJ: On 6 March 2020, following a 20 day trial in the Supreme Court of New South Wales before Wilson J (the sentencing judge) and a jury, the Applicant, Darren Mohr, was found guilty of a single count of conspiring to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). That offence carried a maximum sentence of life imprisonment and/or a fine of 7,500 Commonwealth penalty units.

2. [2]

   On 3 July 2020, the Applicant was sentenced to a term of 32 years imprisonment commencing on 22 January 2019, with a non-parole period of 18 years, expiring on 21 January 2037: R (Cth) v Mohr [2020] NSWSC 871 (sentencing judgment or ROS).

3. [3]

   Although the Applicant’s Notice of Intention to Appeal was filed on 16 July 2020, his Notice of Appeal was filed more than 12 months later on 27 March 2024 which was 3 years and 8 months after his sentencing date. The Crown did not oppose the grant of an extension of time to appeal pursuant to the Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3) and 3.5(5) and the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act), s 10(1)(b). An extension of time was granted at the commencement of the hearing of the application for leave to appeal.

4. [4]

   The Crown case at trial was that, between about 1 May 2016 and 5 November 2016, the Applicant was one of six co-conspirators in a conspiracy known as the “Dalrymple 1 conspiracy”. A person identified in the evidence as “Gutterball” was the principal of the conspiracy from his base in Thailand. The conspiracy concerned the planned importation of 500kgs of cocaine from Chile to Australia by using a fishing vessel, the Dalrymple, to collect drugs from a Chilean ship in international waters off Fiji. Although the Dalrymple reached the designated rendezvous point and waited for the Chilean ship, it did not appear and the Dalrymple returned to Sydney empty.

5. [5]

   The Applicant was the only co-conspirator to plead not guilty and, following his conviction, was the last of the co-conspirators to be sentenced. Three of the co-conspirators gave evidence in the Applicant’s trial. The evidence of one of the co-conspirators, who, consistent with the sentencing judge’s approach, will be referred to as “Person A”, was central to the Crown case and his evidence was accepted and drawn upon heavily by the sentencing judge in making factual findings in relation to the Applicant’s role in the conspiracy.

6. [6]

   Person A had been charged with and pleaded guilty to three charges of conspiracy to import a commercial quantity of a border-controlled drug. The three charges concerned five conspiracies, including the Dalrymple 1 conspiracy. The Applicant was not involved in the other conspiracies to which Person A pleaded guilty.

7. [7]

   Person A was sentenced by Wilson J on 14 December 2018 and received an aggregate term of imprisonment of 22 years and 6 months, commencing on 25 December 2016, with a non-parole period of 14 years expiring on 24 December 2030: R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin [2018] NSWSC 1953 (R v Person A). Her Honour’s indicative sentence in relation to Person A’s involvement in the Dalrymple 1 conspiracy was, after allowing for discounts for an early plea and co-operation, 8 years imprisonment.

8. [8]

   Subsequent to the Applicant’s sentencing, Person A brought a successful appeal against his sentence: Decision restricted [2023] NSWCCA 257 (Person A v R). He was resentenced to an aggregate sentence of 19 years imprisonment, with a non-parole period of 12 years and 3 months, expiring on 24 March 2023. Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), given that an aggregate sentence was being imposed, the Court indicated that the sentence that would have been imposed in respect of Person A’s involvement in the Dalrymple 1 conspiracy was 7 years and 2 months. Again, given Person A’s early guilty plea and cooperation for which he obtained sentencing discounts, this indicative sentenced translated to an undiscounted sentence of 16 years in respect of the Dalrymple 1 conspiracy. This was half of the term of imprisonment of 32 years imposed on the Applicant.

9. [9]

   In sentencing the Applicant, the sentencing judge noted (at ROS [4]) that there was a “significant contest between the Crown and the offender as to the facts that should be found by the Court”. Her Honour added that the jury must have accepted the evidence of Person A, “at least as it was relevant to the elements of the offence, and rejected the account of events given by the offender”: at ROS [6].

10. [10]

    By way of his Notice of Appeal, the Applicant sought leave to appeal from his sentence on the basis of a number of asserted errors in the factual findings made by the sentencing judge and on the ground that the sentence imposed gave rise to a justifiable sense of grievance given the undiscounted indicative sentence in respect of Person A’s involvement in the Dalrymple 1 conspiracy (the parity ground).

11. [11]

    The Applicant’s first four grounds of appeal were ultimately directed to attacking a series of findings which contributed to the sentencing judge’s conclusion that the Applicant was senior to Person A in the hierarchy of responsibility in respect of the Dalrymple 1 conspiracy. But the parity ground was pressed even if those discrete challenges did not succeed.

12. [12]

    The Applicant’s attack on the sentence could thus be summarised as follows:

    1. (1)

       Person A was either more or equally “senior” to the Applicant in terms of their respective roles in the Dalrymple 1 conspiracy, and it was not open to the sentencing judge to conclude otherwise;

    2. (2)

       this was a material error in the sentencing process and, on the assumption that the error was corrected, the difference between Person A’s notional (indicative) sentence in respect of the Dalrymple 1 conspiracy and that of the Applicant was even more stark, even allowing for other factors affecting the sentencing of the two offenders;

    3. (3)

       on a resentencing, and fully allowing for the seriousness of the offending and the high degree of objective criminality, parity dictated a far lower sentence than that imposed by the sentencing judge; and

    4. (4)

       even if her Honour did not err in the factual conclusions the subject of attack in appeal grounds 1-4, and her Honour was correct to identify the Applicant as more senior than Person A in the Dalrymple 1 conspiracy, the sentence imposed on the Applicant, which was twice as long as that imposed on Person A, gave rise to a justifiable sense of grievance even allowing for other factors affecting the sentencing of the two offenders.

13. [13]

    It is convenient first to set out the relevant principles in relation to the important principle of parity in sentencing for it was to that principle that the thrust of the Applicant’s argument was directed.

The parity principle

1. [14]

   The parity principle of sentencing requires there should not be a disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance: Postiglione v The Queen (1997) 189 CLR 295 at 301, 309, 338; [1997] HCA 26 (Postiglione). In a passage of central importance, Dawson and Gaudron JJ observed (at 301) that:

2. [15]

   The disparity in question must be “marked” but need not be “gross” or “glaring” to attract appellate intervention: Miles v R [2017] NSWCCA 266 at [9]; Cameron v R [2017] NSWCCA 229 at [79]-[90]; Daw v R [2017] NSWCCA 327 at [19]; Fenech v R [2018] NSWCCA 160 at [30]; Borg v R [2019] NSWCCA 129 at [90]-[91]; Downes v R [2020] NSWCCA 167 at [40], [57]; Weiss v R [2020] NSWCCA 188 at [89]-[90] cf. Afu v R [2017] NSWCCA 246 (Afu) at [15]; Tuivaga v R [2015] NSWCCA 145 (Tuivaga) at [56]. More is required than mere “arguable” disparity and a degree of latitude is to be afforded to the decision of the sentencing judge, especially in light of the fact, recognised in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27], that “there is no single correct sentence.”

3. [16]

   Importantly, the parity principle is free standing and does not depend upon a conclusion that the sentence under appeal is otherwise excessive: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [32]. Conversely, the Court is not bound to intervene if the sentence imposed upon the co-offender is manifestly inadequate and intervention would “produce a sentence disproportionate to the objective and subjective criminality involved”: Youkhana v R [2011] NSWCCA 37 at [49] citing Regina v Pan [2005] NSWCCA 114 at [35] and Wilson v R [2008] NSWCCA 245 at [39]; Rosenberg v R [2022] NSWCCA 295 at [11].

4. [17]

   The parity principle is of cardinal importance not only for an offender with a sense of grievance that is justifiable, but for broader reasons concerning the interests of the administration of justice and public confidence in it. As Sir Anthony Mason pointed out in his dissenting but seminal decision in Lowe v The Queen (1984) 154 CLR 606 at 610-611; [1984] HCA 46 (Lowe):

5. [18]

   Systematic fairness is an element of the rule of law and the parity principle has been said to have its foundation in the norm of equality before the law: Green at [28]-[30].

6. [19]

   Perfect consistency is an elusive end for a variety of reasons: Postiglione at 336 (Kirby J). A comparison of like with like is not and can never be an exercise in precision but is one of necessarily imprecise approximation because of the inevitable variability of characteristics as between offenders such as age, backgrounds, antecedents and particular roles in the commission of the same offence. Yet, as Gleeson CJ observed in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6], although discretionary decision-making carries with it the probability of some degree of inconsistency, “there are limits beyond which … inconsistency itself constitutes a form of injustice.”

7. [20]

   In determining whether the parity principle has been observed, the different circumstances of co-offenders, including degrees of criminality, must be considered: Postiglione at 301-302. Thus, “the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances”: Green at [28].

8. [21]

   The parity principle does not and should not involve a mechanical or mere mathematical process of comparison: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49]. It is necessarily far more nuanced: see, for example, Adams v R [2018] NSWCCA 139 at [85], citing Tran v R [2017] VSCA 346 at [24]. Both logic and reality are at play: Lowe at 613; Green at [32]. More is involved than a simple comparison of head sentences: Postiglione at 302. A comparison of all relevant factors, including antecedents, may support a difference in terms of the sentences imposed, although it may not support the extent of the difference in the sentences under consideration.

9. [22]

   As expressed by this Court in DS v R [2014] NSWCCA 267 at [39]:

10. [23]

    In considering whether there is unjustified disparity, an appellate court “will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders”: Green at [32]. There may be cases, of which Postiglione was an example, where co-offenders have been sentenced by different judges.

11. [24]

    The fact that the sentencing of co-offenders has been undertaken by the same judge has been said to tend against appellate intervention: Tuivaga at [55]-[56]; Contos v R [2022] NSWCCA 92 at [86]; Huckstadt v R [2016] NSWCCA 22 (Huckstadt) at [90]. That is because the sentencing judge is “fully aware of the circumstances of the offending, as well as the respective subjective cases” (Afu at [15]) and is “in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way”: Huckstadt at [90]. These observations may need to be qualified to some extent, however, where the co-offenders have not all been sentenced at the same time and on the same body of evidence: as to the latter point, see Martellotta v R [2021] NSWCCA 168 at [58]. Moreover, the fact that the relevant sentences have both been imposed by the same judge does not relieve the Court from the responsibility of analysing the differences in criminality and subjective circumstances to determine whether the proportion between the sentences leaves the applicant with a justifiable sense of grievance: Cameron at [83]; Keen v R [2024] NSWCCA 157 at [146].

Facts relevant to sentencing of the Applicant

1. [25]

   In reaching her conclusion as to an appropriate sentence for the Applicant, the sentencing judge undertook a detailed examination of the facts of the offence, consistent with the verdict of the jury, noting that there was a “significant contest between the Crown and the offender as to the facts that should be found by the Court”: at ROS [3]-[4]. Her Honour went on to say (at ROS [5]-[7]):

2. [26]

   In Assam v R [2019] NSWCCA 12 at [133], Bathurst CJ observed that:

3. [27]

   The final sentence of this passage has its foundation in what the High Court said in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at [27], namely that the court “may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt” (emphasis in original).

4. [28]

   The sentencing judge accepted the evidence that had been given by Person A in the Applicant’s trial was honest, generally accurate and reliable: ROS [8]-[9]. This assessment was not challenged on appeal.

5. [29]

   The Applicant’s role in the conspiracy predated that of Person A, and involved two trips to Thailand where it was “reasonable to infer that [he] met or otherwise communicated with Gutterball” (at ROS [76]), a trip to Chile, meetings with Person A in Sydney, and trips from Queensland to Sydney where he had further dealings with Person A.

6. [30]

   The sentencing judge made the following findings in respect of the Applicant’s involvement in the conspiracy:

7. [31]

   The Crown pointed out that Person A’s evidence as to the Applicant’s account of his trip to Chile included that the Applicant had:

8. [32]

   There was also evidence that the Applicant had learnt whilst in Chile that the Chilean ship would have the benefit of a Chilean naval escort in leaving Chilean waters and reported to Person A that the people involved were “good operators and very serious people”.

9. [33]

   As to the objective gravity of the offence, the sentencing judge held that the conspiracy “represents criminality of a very high order”: at ROS [63]. Although her Honour considered that the amount of cocaine (500kgs with a value of between $106 and $150 million) from which the conspirators sought to profit was but one feature pointing towards the seriousness of the crime, she reasoned that it was “an indicator of the assets available to the international syndicate (for whom, I am satisfied, the offender was the Australian representative), of the sale and scope of the conspiracy, and of its highly developed nature”: at ROS [64]. Other features noted by the sentencing judge included the fact that the conspiracy involved a “diverse group of conspirators with specific roles to play” (at ROS [65]), was underpinned by “extensive and thorough” planning and preparation (at ROS [66]), was “highly organised”, spread across “three countries” and “to the detriment of the community” (at ROS [67]) and “did not fail to achieve its end through any want of planning or action by the conspirators”: at ROS [68].

10. [34]

    At ROS [69]-[83], the sentencing judge added as to the objective seriousness of the offending that:

11. [35]

    The sentencing judge acknowledged (at ROS [86]) that the Applicant had been “subjected to conditions of bail that amounted to house arrest” for a period of “a little less than eight months” and that that was a feature to be taken into account on sentence.

12. [36]

    At ROS [126], the sentencing judge held that the gravity of the crime was such that only a custodial sentence was available. Her Honour then held that the Applicant entered into the conspiracy “for no better reason than the lure of money, and the prestige and lifestyle that money could buy him”: at ROS [127]. Although the sentencing judge acknowledged that the Applicant’s health and associated psychological conditions (which her Honour held at ROS [89] were “devastating” and would have had “a profound psychological impact upon the [Applicant] and his sense of self”) were a relevant feature in that they would make his conditions in custody more onerous, her Honour found that they could not fully explain his role in the offending: at ROS [128], [148]-[150].

13. [37]

    As to parity, the sentencing judge again recorded her “conclusion that the offender’s role was senior to that of either of [Person A and another of the co-conspirators]” (at ROS [136]) and noted that there were “material differences in the objective gravity of the role played by each man in the conspiracy”: at ROS [137]. Her Honour added that:

14. [38]

    The sentencing judge next turned to consider the matters to which the Court must have regard in sentencing for a federal offence contained in s 16A of the Crimes Act 1914 (Cth) (Crimes Act).

15. [39]

    As to remorse, the sentencing judge was “not able to accept that [the Applicant’s] regret amounts to true remorse for the crime he committed”: at ROS [145]. However, her Honour accepted (at ROS [147]) that the offender regretted his actions, “even if principally because of the consequences to him” and that, “the beginnings of insight are to be found in that regret.” The sentencing judge additionally accepted that the Applicant’s prospects for the future were “reasonably positive”: at ROS [151].

16. [40]

    In relation to deterrence, the sentencing judge held that, although her finding as to the Applicant’s prospects of rehabilitation mitigated to some degree the need for a sentence with a strongly deterrent effect, the “need for the sentence to deter others by showing would-be offenders of what lies in store for drug offenders of this ilk remains, and must be given ‘chief weight’”: at ROS [157].

Factual challenges

1. [41]

   The power of this Court to interfere with findings of fact made by the sentencing judge is limited. The Applicant must either demonstrate that a particular finding was not open on the evidence or that there was error in the sense referred to in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (House v The King). However, the Court has no power to substitute its own findings for those of the sentencing judge: R v O’Donoghue (1988) 34 A Crim R 397 at 401; Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [8], [24]; Camm v R [2009] NSWCCA 141 at [68]-[70]; Cao v R [2010] NSWCCA 109 at [48].

2. [42]

   By Ground 1 of his appeal, the Applicant contended that the sentencing judge “erred in concluding that the applicant had made an offer to Person A to bring drugs into Australia from a location at sea and that that offer had been made without prior approval from Gutterball, when such a finding was not open”. This was an attack on ROS [71] which has been reproduced in [34] above. Particular focus was placed by Mr Walker AO SC, who appeared with Mr Lange for the Applicant, on the final sentence of ROS [71], namely:

3. [43]

   The Applicant submitted that there was no evidence that the Applicant made any offer at the 2 May 2016 meeting in Steyne Park for Person A to work on behalf of the syndicate, let alone one to collect drugs from sea. Moreover, it was put that the evidence did not permit the conclusion that the Applicant had authority to make any such offer without reference back to Gutterball.

4. [44]

   At ROS [12] and [14], the sentencing judge found that, following a meeting with another of the co-conspirators in which Person A was asked (but declined) to travel to Thailand to meet with Gutterball and discuss “an importation of drugs by sea”, a meeting was arranged between the Applicant and Person A at Steyne Park on 2 May 2016. Person A gave the following evidence as to the content of his conversation with the Applicant during that meeting:

5. [45]

   This passage of evidence certainly involved the Applicant asking Person A whether he was interested in doing some work “for us” and Person A undoubtedly understood the context of that question. Based upon this evidence (and the Crown pointed to no further relevant evidence), the Applicant’s interaction with Person A at this meeting was more in the nature of an initial inquiry as opposed to a precise or specific offer to join the syndicate. Person A’s evidence was that it was about the “possibility of doing some work for them”. Because it was not an offer of the kind described by her Honour, the significance of it being made “without Gutterball’s sanction” diminishes, even if the engagement with Person A in fact was without Gutterball’s sanction. On the evidence, the exchange was an initial sounding out which led to Person A being put in touch directly with Gutterball. As the following passage of transcript illustrates, no definite offer of the kind the sentencing judge found was made by the Applicant was in fact made. Person A gave evidence as to the content of messages he received from Gutterball a couple of days after the 2 May 2016 meeting with the Applicant:

6. [46]

   Person A then gave the following further evidence about those communications:

7. [47]

   He later elaborated as follows:

8. [48]

   The Steyne Park meeting in May 2016 was undoubtedly significant as an initial step in the recruitment of Person A and, as the sentencing judge held at ROS [71], the Applicant attended that meeting “as Gutterball’s representative”. This finding is in at least a degree of tension with her Honour’s conclusion that the Applicant offered Person A a senior role in the syndicate “without Gutterball’s sanction”. On the whole of the evidence, the “offer” was not concrete and more in the nature of a sounding out. Further, unless her Honour simply meant by the phrase “without Gutterball’s sanction” that the Applicant did not first revert to Gutterball with his impressions of Person A before suggesting that “his friend would make contact with” Person A, there was no basis in the evidence for concluding that the Steyne Park interaction and what the Applicant said on that occasion was “without Gutterball’s sanction”. It may or may not have been but it was, with respect, not open to her Honour to reach this conclusion beyond reasonable doubt.

9. [49]

   It was also a conclusion that was material, and an error made in the exercise of the sentencing discretion: House v The King at 504-505. ROS [71] appeared in the course of her Honour’s analysis of the Applicant’s role in the conspiracy, in support of her conclusion that the offender was second in the structure of power and authority to Gutterball, and the most senior of the Australian conspirators.

10. [50]

    Ground 1 of the appeal should therefore be upheld, and the Applicant must be resentenced in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]. That does not obviate the need to consider appeal grounds 2-4 which also allege errors in the sentencing judge’s fact finding, as the resentencing must proceed in accordance with the sentencing judge’s findings of fact. Resolution of challenges to those findings must necessarily precede resentencing.

11. [51]

    By ground 2 of his appeal, the Applicant submitted that the sentencing judge, at ROS [73], “erred in concluding that the applicant had sufficient authority to approve [Person A’s] proposal that he would hold a portion of the drugs until such time as he was paid for his involvement, when such a finding was not open.” ROS [73] is reproduced in [34] above.

12. [52]

    It was submitted that Person A’s evidence on this subject reflected “no more than the applicant’s musings about [Person A’s] demands and certainly [said] nothing about the applicant’s authority to act on behalf of Gutterball.”

13. [53]

    The Applicant pointed to the following passage of Person A’s evidence:

14. [54]

    Notwithstanding Person A’s statement that “He didn’t give a definite answer” (upon which the Applicant placed some emphasis), read as a whole, this passage of the evidence provided a basis for her Honour’s observations in ROS [73]. Her Honour’s conclusions in that paragraph were in my view open. The fact that Person A said later in his cross examination that, if he went to Thailand, he “would be telling them in person that we would have to hold some product until we got paid” does not detract from this conclusion. That evidence was not consistent with a lack of apparent agreement by the Applicant with what Person A had put to him but, rather, evidence that Person A would have emphasised a matter he had already raised with the Applicant without demur and apparent acceptance.

15. [55]

    I would reject Ground 2.

16. [56]

    Ground 3 was that it was not open to the sentencing judge to conclude that “the applicant’s role involved the international supervision of the operation to export cocaine from Chile and import it to Australia”. It is important to note precisely what was held in ROS [140], namely that:

17. [57]

    There is a subtle difference between the formulation of the ground of appeal and ROS [140]. The latter was to the effect that the Applicant had a role in the international supervision of the operation whereas the former was to the effect that the Applicant’s role was to supervise the whole operation.

18. [58]

    It was well open to the sentencing judge to conclude that the Applicant had a role in the international supervision of the operation. It is sufficient to refer to the unchallenged factual findings referred to in [30] and [34] above to support this conclusion. Those findings included that the Applicant was sent to Chile by Gutterball to “organise the logistics” and there met with those who were responsible for packaging and shipping the cocaine and reviewed their operation: ROS [24], [74]. It was also the Applicant who was on the ground in Sydney to inspect the Dalrymple and to oversee its crewing arrangements and its departure from Sydney for Fiji. His role continued when issues arose with the Dalrymple’s voyage: see [30] above.

19. [59]

    The Applicant’s submission that there “was simply no evidence that the applicant was involved in the arrangements for the preparation and dispatch of the drugs” must be rejected, as must Ground 3.

20. [60]

    By Ground 4, the Applicant argued that it was not open to the sentencing judge to find that the Applicant “was second in the structure of power and authority to Gutterball and his role was ‘senior’ to that of Person A”. This was at the heart of the factual dispute between the parties. In this context, it is important to recall the constraints on appellate review referred to in [41] above.

21. [61]

    It is certainly correct that the sentencing judge concluded that the Applicant was second in the structure of power and authority to Gutterball and that the Applicant’s role was senior to that of Person A: see [34] and [37] above.

22. [62]

    It was submitted that Person A was a free agent who joined the conspiracy, bringing his own skills and resources, as evidenced by his involvement in multiple other conspiracies each involving substantial quantities of border-controlled drugs and only one of which involved the Applicant.

23. [63]

    The Applicant placed reliance on the fact that, when sentencing Person A, in a finding not disturbed on his successful appeal, the sentencing judge had described his role in the conspiracy as “pivotal”. Her Honour said in R v Person A at [347]-[350]:

24. [64]

    It is to be recalled that Person A’s sentencing occurred in December 2018, some 15 months before the commencement of the Applicant’s trial. It was a sentence which was passed by reference to agreed facts, and the sentencing judge did not have the benefit of the extensive evidence which Person A gave in the course of the Applicant’s trial and upon which her Honour drew in sentencing the Applicant and, relevantly for present purposes, drawing her conclusions as to the Applicant’s role vis-à-vis Person A. Moreover, the focus of the agreed facts for the purposes of Person A’s sentencing was his role in the conspiracy. Although some reference was made to his interactions with the Applicant, as reproduced in Person A’s sentencing judgment, those references were far less detailed as to the Applicant’s involvement than what emerged in the course of the Applicant’s trial during which Person A was in the witness box for some seven days.

25. [65]

    When one has regard to the unchallenged findings of fact set out earlier in this judgment, allowing for the fact that ground 1 of the appeal has been upheld, her Honour’s overall conclusion as to the Applicant’s role in the conspiracy was, in my view, well open to her.

26. [66]

    The Applicant was Gutterball’s “trusted lieutenant”, as the sentencing judge held, and his representative in Australia: at ROS [69]. It was he who made the initial contact with Person A. It was he who relayed critical details to Person A after his visit to Chile. It was he who discussed payment arrangements with Person A. It was he who inspected the Dalrymple at the Fish Markets and gave directions as to who was not to be on board. It was he who acted as a go-between as between Gutterball and Person A when difficulties arose with the voyage. But his involvement went well beyond these matters, including, as has already been emphasised, his trip to Chile which was to deal with logistics and his two trips to Thailand where it could be reasonably inferred that he met with Gutterball.

27. [67]

    To conclude, as the sentencing judge did, and as was open to her, that the Applicant was “second in the structure of power and authority to Gutterball and his role was ‘senior’ to that of Person A” is not to hold that Person A’s role was not also extremely important in the conspiracy. The relativities of their respective roles will be relevant on the resentencing of the Applicant.

28. [68]

    Ground 4 should be rejected.

29. [69]

    In light of my conclusion in respect of ground 1, and the consequent necessity for resentence, it is not necessary to deal with this ground but the discussion of the parity principle at [14]-[24] above is of relevance for the purposes of resentencing, as any resentencing of the Applicant must have regard to the sentences imposed on co-offenders. Person A is the most relevant of those co-offenders.

Resentencing

1. [70]

   The obvious gravity of the crime is such that I am satisfied, having considered all other available sentences, that only a custodial sentence is appropriate: Crimes Act, s 17A(1).

2. [71]

   I have read, had regard to and incorporated into these reasons the sentencing judge’s summary of the evidence on sentence at ROS [84]-[123]. No further evidence was led on the appeal other than the tender of medical records which made reference to “Chronic Kidney Disease”, noting that there was ambiguity as to whether there was a family history of dialysis or renal impairment due to an inconsistency between a specialist report to a general practitioner dated 30 May 2024 and nursing notes made on 8 January 2024.

3. [72]

   The resentencing of the Applicant must be based upon the sentencing judge’s findings of fact other than the finding which was the subject of the successful challenge in ground 1 of the appeal.

4. [73]

   Critical findings include those as to the Applicant’s:

5. [74]

   In approaching the task of resentencing, the Court must have regard to such of the matters in s 16A(2) of the Crimes Act as are relevant and known to the Court.

6. [75]

   In this regard, I note that the offence did not form part of a course of conduct consisting of a series of criminal acts, and did not result in injury loss or damage or impact on any victims. Other matters which are required to be taken into account are informed by the sentencing judge’s findings and assessments set out at [73] above and to which I have had close regard.

7. [76]

   I adopt the sentencing judge’s assessment that the conspiracy constituted “offending of the highest order in which, of the known conspirators, the offender was second only to Gutterball” and that “his participation was critical to the success of the venture”: at ROS [83]. In doing so, I note the size of the proposed importation and the sophistication and planning associated with the operation.

8. [77]

   On the question of deterrence, I also adopt the following observations of the sentencing judge at ROS [153]-[156]:

9. [78]

   In resentencing the Applicant, I give significant weight to the need for both general and specific deterrence. This was an audacious (albeit ultimately unsuccessful) endeavour to secure the import of a huge quantity of drugs into Australia. It is vitally important to deter all attempted such imports, whether they be successful or not. Drugs such as those sought to be imported represent a scourge on our society. A lengthy sentence will also effect an important element of personal deterrence to the Applicant who put aside any consideration of the obvious and damaging consequences of such an attempted importation to his fellow citizens to pursue his own enrichment.

10. [79]

    Given that the offence for which the Applicant was convicted involved a conspiracy with a number of other offenders, Person A being the most relevant, it is also necessary to have regard to the principle of parity which I have considered at some length at [14]-[24] above.

11. [80]

    As set out at [8] above, following a successful appeal against sentence in the Court of Criminal Appeal, Person A received an undiscounted indicative sentence in respect of his involvement in the Dalrymple 1 conspiracy of 16 years imprisonment.

12. [81]

    The Applicant submitted that, given the sentencing judge’s finding that Person A’s “overall criminality [was] at the very highest level” and the lack of any significant differences in their respective subjective cases, there should be no substantial disparity between the sentences imposed on Person A and the Applicant for their involvement in the Dalrymple 1 conspiracy. I have already pointed out that the sentencing judge made her observations as to Person A’s overall criminality being “at the very highest level” some considerable time before she came to sentence the Applicant and by reference to a less extensive body of evidence: see [63] above.

13. [82]

    The Crown submitted that, contrary to what was put by the Applicant, there were material differences in the objective gravity of the roles played by the Applicant and Person A in the Dalrymple 1 conspiracy. In particular, the Crown pointed to the sentencing judge’s unchallenged findings at ROS [138] that although Person A had “virtually complete autonomy in all matters connected with the Dalrymple and the role it was to play”, unlike the Applicant who had a “role in the international supervision of the operation”, Person A “had no involvement … with the international aspects of the scheme”, “no knowledge or autonomy in the arrangements for the preparation and dispatch of the drugs”, “no knowledge of the overall structure of the syndicate responsible for the drugs” and “no knowledge of or role in the receipt of the cargo in Australia.”

14. [83]

    Notwithstanding the successful challenge to an aspect of the sentencing judge’s fact finding dealt with at [42]-[50] above, it remained the case that the Applicant was Gutterball’s “trusted lieutenant”, and his representative in Australia. His overall role was more senior to that of Person A and that is an important matter to take into account when considering an adequate punishment for the offence. That having been said, unlike other co-offenders, Person A’s undoubtedly senior role does bear some comparison with that of the offender.

15. [84]

    In the context of parity, the Crown also submitted, and I accept, that there were “significant differences” in the subjective cases of Person A and the Applicant. In this respect, the Crown pointed to the fact that the sentencing judge had found “powerful evidence of contrition and remorse” in respect of Person A, but did not accept that the Applicant’s regret amounted to true remorse.

16. [85]

    Consideration of parity requires these differences to be taken into account (this is the concept of “due allowance”), but their existence does not relieve a sentencing judge of the need to give effect to the parity principle as between co-offenders where their roles are sufficiently similar so as to bear meaningful comparison.

17. [86]

    Consistent with s 6(3) of the Criminal Appeal Act, I am satisfied that a different and lesser sentence was warranted than that imposed by the sentencing judge, and that that sentence should be quashed.

18. [87]

    Pursuant to s 16A(1) of the Crimes Act, a sentence must be imposed of a severity appropriate in all the circumstances of the offence.

19. [88]

    Taking into account the matters required to be taken into account by s 16A(2) of the Crimes Act, and having regard to the considerations identified above, including the sentence imposed on his co-offender Person A, for the offence of conspiring to import a commercial quantity of a border controlled drug, the offender is sentenced to a term of 22 years imprisonment to date from 22 January 2019, expiring on 21 January 2041, with a non-parole period of 13 years, expiring on 21 January 2032.

Orders

1. [89]

   I therefore propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed on Darren Mohr on 3 July 2020 and in lieu thereof, sentence Mr Mohr to a term of 22 years imprisonment to date from 22 January 2019, expiring on 21 January 2041, with a non-parole period of 13 years, expiring on 21 January 2032.

2. [90]

   DAVIES J: I agree with Bell CJ.

3. [91]

   WRIGHT J: I agree with Bell CJ.