R v Bui

1. [1]

   LEEMING JA: I agree with N Adams J that the sentence imposed by the District Court was manifestly inadequate, that this Court should intervene on the bases of each of grounds 1 and 2, and with the sentence her Honour imposes.

2. [2]

   Whether or not the respondent was at the “same level” of the “hierarchy” or “slightly above” or “slightly below” the level of his co-offender on one of the seven offences for which sentence was imposed is immaterial to the sentence imposed by this Court. Nothing turns on ground 1A, for which reason save for what follows I would prefer to express no view upon it. I otherwise agree with the reasons of N Adams J.

3. [3]

   There was no argument in this Court concerning the circumstances when error may be found in a ground of appeal challenging a finding of fact, such as Ground 1A, and thus there is no occasion to revisit the conflict on this point between what was said in AB v R [2014] NSWCCA 339 at [44]-[61], disapproving what had been said in Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19 and Aoun v R [2011] NSWCCA 284, but which was reiterated (albeit without submissions on the point) in Clarke v R [2015] NSWCCA 232; 254 A Crim R 150 (“Clarke”) and Hordern v R [2019] NSWCCA 138; 278 A Crim R 353 (“Hordern”), but thereafter again disapproved (again, without submissions on the point) in Azzopardi v R [2019] NSWCCA 306 at [34]-[40] and Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18; 278 A Crim R 564 at [125].

4. [4]

   There will come a time when the point will be argued and determined. There would be much to be said in favour of sitting an enlarged bench when that occasion arises. That is because the question is a basal one, and there are respectable arguments available to both sides. And, despite the forcefulness with which some of the reasons have been expressed, there is a deal of common ground. So far as I can see, no one disputes that before this Court can intervene under s 5(1)(c) of the Criminal Appeal Act, there must first be “error”. The issue is whether those errors are limited in the ways enunciated by Hunt J refusing leave to appeal in O’Donoghue v R (1988) 34 A Crim R 397 (“O’Donoghue”). That was an ex tempore decision of this Court which relied upon two earlier decisions where it had been said that it was not open to the appellate court to depart from a finding that a confession was voluntary (Merritt & Roso v R (1985) 19 A Crim R 360 and Kyriakou, D’Agosto & Lombardo v R (1987) 29 A Crim R 50). In both of those cases the issue was whether the primary judge erred in finding that a confession was given voluntarily where both the police officers and the accused had given evidence about it. O’Donoghue was significant because the reasoning treated the limitations applicable to appellate review where there had been testimonial evidence at first instance to all cases. It is not, to say the least, self-apparent that the same level of deference applies where the judge at first instance does not enjoy the advantage of seeing testimonial evidence.

5. [5]

   What was there said in O’Donoghue about the limitations upon making factual findings which bear upon evidentiary rulings may also need to be reconciled with more recent decisions on evidentiary rulings. In particular on one view the generality of what was said in O’Donoghue may sit uneasily with the application of what has come to be known as the “correctness standard” in its application to the evidentiary ruling in Steven Moore (a pseudonym) v The King [2024] HCA 30; 308 A Crim R 592. Error is not mentioned in s 5(1)(c), but the preceding paragraph makes it clear that appeals against conviction extend to “any ground of appeal which involves a question of fact alone, or question of mixed law and fact”, which is general in its wording.

6. [6]

   On the other hand, there is the fact that many, many sentence appeals challenging findings of fact have proceeded on the more limited basis stated in O’Donoghue, which in turn engages the considerations in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [52]; see also State of New South Wales v Culhana [2025] NSWCA 157 at [86]-[89].

7. [7]

   Nothing turns on the point in the present appeal, because irrespective of whether the sentencing judge was right or wrong as to where precisely the applicant was in the hierarchy does not materially affect the sentence which must be imposed by this Court. It may well be that in many cases nothing will turn on the precise scope of this Court’s appellate function. But in some cases it will matter, and the preceding paragraphs may assist the preparation of submissions on the point when that occasion arises.

8. [8]

   FREE JA: I agree with N Adams J. I also agree with the additional observations of Leeming JA as to the desirability of resolving the conflict in the authorities about the test to be applied in a sentencing appeal when determining a ground of appeal challenging a finding of fact.

9. [9]

   N ADAMS J: By notice of appeal filed on 31 March 2025, the Director of Public Prosecutions (NSW) appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentences imposed upon the respondent by his Honour Judge Hanley SC at the Sydney District Court on 25 February 2025.

10. [10]

    The respondent was involved in a drug syndicate which imported commercial quantities of methylamphetamine (“ice”) and marketable quantities of cocaine on numerous occasions in 2022. After the illicit drugs were imported to Sydney, they were then transported to Brisbane and Perth by concealment in toolboxes that were tracked using Apple AirTags. The respondent’s role was to track the importations and then arrange for them to be transported out of New South Wales. The respondent was also charged with the supply of a large commercial quantity of 1,4-butanediol.

11. [11]

    The respondent was initially charged with eight serious offences, four of which carried a maximum penalty of life imprisonment. Five of those charges were placed on schedules under the relevant State and Commonwealth legislation which meant that the respondent only stood to be sentenced for three of those eight offences; two under Commonwealth law and one under NSW law.

12. [12]

    The first Commonwealth offence for which the respondent was sentenced was:

13. [13]

    The two matters taken into account under s 16BA of the Crimes Act 1914 (Cth) when sentencing for Sequence 1 also carried a maximum penalty of life imprisonment. They were:

14. [14]

    The second Commonwealth offence for which the respondent was sentenced was:

15. [15]

    The two matters taken into account under s 16BA of the Crimes Act 1914 (Cth) when sentencing for Sequence 13 also carried a maximum penalty of 25 years imprisonment. They were:

16. [16]

    The State offence to which the respondent pleaded guilty was:

17. [17]

    A further State offence was taken into account when sentencing for Sequence 4 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”):

18. [18]

    The sentencing judge imposed an aggregate sentence for the two Commonwealth offences of 5 years imprisonment. He imposed a sentence of 3 years imprisonment for the State offence. He allowed for two years’ concurrence and one year of accumulation resulting in an overall effective sentence of imprisonment for 6 years with a non-parole period of 3 years and 4 months commencing on 21 September 2022. The non-parole period expires on 20 January 2026.

19. [19]

    The indicative sentence for Sequence 1, taking into account the two additional matters (after a discount of 25% for the early plea of guilty), was 4 years imprisonment. The indicative sentence for Sequence 13, taking into account the two additional matters (after a discount of 25% for the early plea of guilty), was 2 years and 6 months imprisonment.

20. [20]

    At the time of the commission of the offences, the respondent was 35 to 36 years old. He had previously received a sentence of imprisonment of three and a half years for drug offending. By the time of his sentence, he had been recently sentenced to imprisonment, to be served by way of an Intensive Corrections Order (“ICO”), for dishonestly obtaining property by deception. The respondent was born in Vietnam and had had a difficult childhood. He was a drug user at the time of the offending and committed the offences to obtain money and drugs. By the time of sentence, he was remorseful and showing positive signs of rehabilitation.

Grounds of appeal

1. [21]

   In the Director’s Notice of Appeal filed on 31 March 2025, the appellant relied on the following grounds of appeal:

2. [22]

   Ground 3 was pressed as a particular of the other grounds. It was contended that the modest degree of accumulation between the Commonwealth and State sentences compounded their inadequacy. The appellant did not otherwise press Ground 3 as a standalone ground.

3. [23]

   Further, the appellant sought leave to add Ground 1A to challenge a finding of fact relevant to the indicative sentence for Sequence 1. Leave to do so was opposed by the respondent. Proposed Ground 1A is in these terms:

4. [24]

   Again, the Crown submitted that the determination of the appeal did not depend on Ground 1A being upheld; rather, it was contended that if this Court upheld any of the other grounds, the respondent should be re-sentenced for Sequence 1 on a “correct factual basis”.

Co-offenders/Parity

1. [25]

   Detailed Agreed Facts were placed before the sentencing court. The primary evidence of the respondent’s involvement in the criminal syndicate came from conversations he had with his co-offenders on encrypted messaging applications including “Threema” and “Signal”. The respondent used the handles “Suspect 888” and “Suspect 168”. As the sentencing judge observed, this indicates the respondent understood that what he was doing was illegal.

2. [26]

   Although the names of some of the co-offenders are known, the Agreed Facts describe others simply by the handle they used in the encrypted messaging. Of the co-offenders, it was common ground that the two of them who were of particular relevance in the respondent’s sentencing were Sutthichai Torthitithan (relevant to hierarchy) and Joshua Campbell (relevant to hierarchy and parity).

3. [27]

   It was common ground that Sutthichai Torthitithan was higher in the hierarchy than the respondent. He had attended high school with the respondent. They had not seen each other since school but met up shortly prior to the offending at a time when the respondent needed money. Mr Torthitithan offered him work in the syndicate in exchange for money and drugs. Mr Torthitithan communicated directly with the respondent in connection with his role in the syndicate.

4. [28]

   Joshua Campbell was sentenced by Neilson DCJ on 16 August 2024 in relation to four offences, only one of which was common to the charges the respondent stood to be sentenced on:

   1. (1)

      Count 1 was that between 12 September and 21 September 2022, he aided the importation of a commercial quantity of methamphetamine contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). This charge was the equivalent charge to Sequence 1 in the respondent’s case (and the only charge directly relevant to parity).

   2. (2)

      Count 2 was that between 12 September and 22 September 2022, he aided trafficking of a marketable quantity of cocaine contrary to s 302.3(1) of the Criminal Code Act 1995 (Cth). This charge was equivalent to the respondent’s Sequence 11 (taken into account on a schedule under s 16BA).

   3. (3)

      Count 3 and Count 4 were State firearm offences not common to the respondent. There was also a related offence on a s 166 certificate of possessing equipment and material capable of being used to make fraudulent identification information.

5. [29]

   For Count 1 (Sequence 1), Mr Campbell was sentenced to a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years (after a discount of 25% for his early plea). This was the sentence that the sentencing judge had regard to for the purposes of applying the parity principle on Sequence 1. Considerable reliance was placed on this result by the respondent in this appeal.

6. [30]

   Although the sentencing judge accepted the Crown’s submission that the respondent was higher in the hierarchy than Mr Campbell, as will be seen, his Honour reached a different conclusion in relation to Sequence 1 (the importation of 53.46 kilograms of methamphetamine). The Crown’s contention that such a finding was not open to his Honour is the subject of proposed Ground 1A.

7. [31]

   Other co-offenders referred to in the Agreed Facts are:

   1. (1)

      Watcharaphong Aphichotnithithon, who was sentenced in relation to Sequence 1 to a term of imprisonment of 3 years. It was accepted before the sentencing judge that his sentence was not relevant to the application of the parity principle in this matter;

   2. (2)

      Joseph Barber-Battese, who was sentenced to a term of imprisonment of 2 years to be served by way of ICO for his role in Sequence 11. It was accepted before the sentencing judge that his sentence was not relevant to the application of the parity principle in this matter;

   3. (3)

      “Razor”, which is the handle of one of the offenders used on Threema. He is only known by that name. He was higher in the hierarchy than the respondent. There were some online conversations in which he and Mr Torthitithan discussed the importations in which neither the respondent nor Mr Campbell were included;

   4. (4)

      “T187”, which is the handle of one of the offenders. He is only known by that name. The respondent sent messages to T187 which indicated that he was selling drugs to him; and

   5. (5)

      “Harvey De Monster”, which is the handle of one of the offenders. He is only known by that name. There were some online conversations in which he and Mr Torthitithan discussed the importations in which neither the respondent nor Mr Campbell were included.

Agreed Facts

1. [32]

   The following summary is based on the Agreed Facts. Given that the respondent stood to be sentenced for his role in the criminal syndicate, and that he was involved in eight different offences, the Agreed Facts, by necessity, contain significant detail.

2. [33]

   The Sequence 13 offence concerned the importation of a marketable quantity of cocaine, namely 860 grams, from France between 11 April 2022 and 13 May 2022. The purity of this cocaine is unknown. Although the Agreed Facts disclose that Mr Torthitithan had agreed with others to import two kilograms of cocaine from France, the respondent was not part of that group chat.

3. [34]

   The respondent’s role was to track the relevant shipments. He communicated directly with Mr Torthitithan about the importation. On 8 May 2022, he discussed with Mr Torthitithan packages that were awaiting Customs clearance and sent Mr Torthitithan an image of a package that had already arrived.

4. [35]

   Unbeknown to the offenders, one of these parcels had already been intercepted by the Australian Border Force on 5 May 2022. That parcel, which had a tracking number, was addressed to a person who lived at Dulwich Hill and was found to contain a laptop bag which had three bags with white powder concealed within. The packages contained 860 grams of cocaine hydrochloride. There is no evidence as to the purity of the drug.

5. [36]

   On 8 May 2022, Mr Torthitithan and the respondent exchanged messages about this importation, set out at [5] of the Agreed Facts as follows:

6. [37]

   I pause to note that the fact that the respondent referred to there being “3” packages was relied upon by the Crown to show that the respondent knew that the single parcel contained packages.

7. [38]

   The sentencing judge was satisfied that the respondent had knowledge of the importation and its arrival and sent photographs of it to Mr Torthitithan.

8. [39]

   Following this conversation, Mr Torthitithan made plans that day to distribute one package that had cleared Customs. The respondent continued to track the progress of the shipments using the application “Aftership”.

9. [40]

   Between 29 June 2022 and 5 July 2022, the respondent exchanged messages with Mr Torthitithan about extracting the drugs (extracted at [9] of the Agreed Facts). On 29 June, the following exchange took place:

10. [41]

    Following this exchange, the respondent sent a number of photographs to Mr Torthitithan. On 1 July 2022, Mr Torthitithan directed the respondent to “[d]o the black bags first”. On 3 July 2022 and again on 4 July 2022, the respondent sent further photographs to Mr Torthitithan. On 5 July 2022, Mr Torthitithan gave the respondent further directions in these terms:

11. [42]

    On 7 July 2022, the respondent sent numerous photographs to Mr Torthitithan of “what appears to be a pot” with the subsequent explanation, “[t]hat’s what it’s left at”. When Mr Torthitithan asked him, “[h]ow many L is that?”, the respondent replied, “I’m on my way over now I’ll check when I get there.”

12. [43]

    Sequence 15 was placed on a s 16BA schedule attached to Sequence 13. It concerned the importation of 2.32 kilograms of cocaine from Amsterdam between 26 July and 27 July 2022. Again, there is no evidence of the purity of the cocaine.

13. [44]

    The respondent’s role was to track the relevant package and communicate with Mr Torthitithan about its movements.

14. [45]

    On 26 July 2022, the respondent sent two photos to Mr Torthitithan of the tracking information of a parcel in Amsterdam. These photos showed that the parcel was cleared and awaiting international departure.

15. [46]

    On 27 July 2022, the respondent advised Mr Torthitithan that there was no update on the parcel. This parcel, which was directed to a person in Tempe, was later seized by the Australian Border Force. It contained two blocks of white powder in a black plastic bag covered over by clear tape. This was found to be 2.32 kilograms of cocaine hydrochloride.

16. [47]

    Sequence 12 was placed on a s 16BA schedule attached to Sequence 1. It concerned the trafficking of a commercial quantity of methylamphetamine between 19 July 2022 and 11 August 2022. During that time, the respondent packaged the methylamphetamine for distribution. He bagged the drugs and corresponded with Mr Torthitithan about their distribution. Although the total quantity of drugs is unknown, the Agreed Facts included the following:

    1. (1)

       On 19 July 2022, the respondent sent Mr Torthitithan photographs of packaged quantities of a crystalline substance (methylamphetamine) weighing a total of 3502 grams on scales.

    2. (2)

       On 22 July 2022, the respondent sent Mr Torthitithan photographs of packaged quantities of a crystalline substance (methylamphetamine) weighing 500 grams on a set of scales.

    3. (3)

       On 26 July 2022, the respondent told Mr Torthitithan that there was a “[b]ox packed for tomorrow”. He then sent photographs of packaged quantities of a crystalline substance (methylamphetamine). As his Honour observed, the bags depicted in photographs appeared to be the same bag that in some photographs weighed 499 grams, but in others weighed 500 grams.

    4. (4)

       On 28 July 2022, the respondent sent Mr Torthitithan photographs of packaged quantities of a crystalline substance (methylamphetamine) with a message “[n]ew job rerock 1.8 photos”.

    5. (5)

       On 29 July 2022, the respondent sent Mr Torthitithan photographs of packaged quantities of a crystalline substance (methylamphetamine) weighing a total of 5.026 kilograms.

    6. (6)

       On 1 August 2022, the respondent sent Mr Torthitithan photographs of packaged quantities of a crystalline substance (methylamphetamine) weighing 6.041 kilograms.

    7. (7)

       On 4 August 2022, the respondent sent Mr Torthitithan photographs of packaged quantities of a crystalline substance (methylamphetamine) weighing a total of 5 kilograms.

    8. (8)

       On 8 August 2022, the respondent sent a photograph to T187 with the caption, “I have been busy with … rerocking”.

    9. (9)

       On 9 August 2022, the respondent sent Mr Torthitithan a photograph of packaged quantities of a crystalline substance (methylamphetamine) weighing 1,002 grams.

    10. (10)

        On 11 August 2022, Mr Torthitithan sent the respondent instructions on how to extract methylamphetamine that was embedded within the backing of a painting. These instructions indicated that there was a chalk-like substance weighing in excess of 3 kilograms in total.

    11. (11)

        On 19 August 2022, the respondent sent Mr Torthitithan a list of expenses incurred in the course of transporting 26 boxes between 15 July and 16 August.

    12. (12)

        On 23 August 2022, the respondent brought at least three yellow Daytona toolboxes and five red toolboxes. He was captured on CCTV taking one in a ‘Go with Gecko’ rented van.

    13. (13)

        On 2 September 2022, the respondent sent a message to Mr Campbell seeking “dodge tafe paperwork” because he had (falsely) “told the guys at Sydney tools that [he] was from Ultimo tafe … to buy broken tools to take back to work shop for the new tech guy to practice with.” At 1.30pm that day, the respondent was captured on CCTV at Sydney Tools at the counter loading a yellow Daytona tool chest into a Go with Gecko rental van and he drove away.

    14. (14)

        On 5 September, Razor and Mr Torthitithan again sent messages to compare their records disclosing they were dealing in many kilograms of drugs and millions of dollars. That same day, Mr Torthitithan sent the respondent photographs of several black packages in a reusable bag with the caption “16 packs”. The respondent asked, “[w]e sending two box, correct?” Mr Torthitithan said, “[y]es, do you have letters ready to go?” The respondent replied, “yes I will organise it tonight I show you photo tomorrow.”

    15. (15)

        Before 1.00pm on 6 September 2022, the respondent sent photos to Mr Torthitithan of the drug packages in tool boxes.

17. [48]

    The Sequence 11 offence was placed on a s 16BA schedule attached to Sequence 13. It concerned the trafficking of 2.9868 kilograms of cocaine from New South Wales into Queensland between 5 and 21 September 2022. The amount of pure cocaine was 492.7 grams. The respondent’s role was to facilitate the transport of this cocaine primarily through organising the rental of various storage facilities. The co-offender Mr Campbell aided and abetted the trafficking of this marketable quantity of cocaine.

18. [49]

    On 9 September 2022, the respondent was caught on CCTV wheeling a toolbox onto a truck in Kingsgrove. That afternoon the respondent was in Queensland and sent a message to a person known by the handle “Krispy Kreme” explaining, “I’m here to set up our new ‘branch’”. Later that day, a Kennards Storage Hillcrest in Queensland was rented online using a fake licence with a picture of the respondent.

19. [50]

    On 12 September 2022, another storage unit in Coorparoo, Queensland, was rented by Mr Campbell on the respondent’s instructions. At 6.46am, the respondent asked Mr Campbell, “[h]ave you fixed the new storage place … He wanted a closer one to the city.” The respondent indicated that he would be catching a flight soon. Mr Campbell rented a storage facility at Kennards in Coorparoo using the fake licence (with the respondent’s image) that had been used to set up the Hillcrest storage unit.

20. [51]

    Later that day, the respondent sent messages to Mr Torthitithan explaining how to access the storage unit in Coorparoo. They included pictures and a diagram drawn by the respondent as to how to locate the specific storage unit.

21. [52]

    On 13 September 2022, Razor told Mr Torthitithan about three units of “B grade” being sent to him to be transported to Queensland. The respondent was tracking this shipment to Queensland.

22. [53]

    On 14 and 15 September 2022, the respondent sent further photographs to Mr Torthitithan to assist him in accessing the unit.

23. [54]

    On 21 and 22 September, Queensland Police executed search warrants at the Coorparoo storage unit and located a large red toolbox which had an Apple AirTag located in the bottom and three blocks of white power containing the 2.9868 kilograms of cocaine (492.7 grams of which was pure).

24. [55]

    The Sequence 14 offence was placed on a 16BA schedule attached to Sequence 1. It concerned the trafficking of a commercial quantity of methamphetamine from Sydney to Western Australia between 13 September 2022 and 21 September 2022. The total amount of methamphetamine was 5.72 kilograms, of which 4.592 kilograms was pure.

25. [56]

    The respondent’s role was to facilitate the transport of two toolboxes containing packages of methamphetamine. The respondent tracked their journey using an AirTag.

26. [57]

    At about 2.00pm on 13 September, a flatbed truck carrying two tool chests arrived at Kennards Self Storage at Kingsgrove. The driver unloaded a red tool chest. About 2.33pm, the driver loaded a blue tool chest onto the truck. The respondent and the driver had an interaction before the driver left. The driver went to GKR Transport complex in Villawood. The two chests on his truck were unloaded.

27. [58]

    At about 6.00pm, the tool chests were loaded into a semi‑trailer with a South Australian registration plate and driven to Western Australia. The respondent tracked the journey using the Apple AirTag. The chest and AirTags were in a unit at Malaga on 22 September 2022.

28. [59]

    On 22 September 2022, a Commonwealth search warrant was executed at the address at Malaga. Police located 5.72 kilograms of methylamphetamine. The pure amount of methylamphetamine was 4.502 kilograms. It included a bag labelled “return” filled with crystal substance determined to be 499.1 grams of methylamphetamine with a purity of 79.8%. It was found along with two boxes of Australian currency. There were two packages inside a toolbox. Each contained a clear resealable bag as follows:

    1. (1)

       946.3 grams of methylamphetamine with a purity of 77.3%.

    2. (2)

       35.4 grams of methylamphetamine with a purity of 79.7%.

    3. (3)

       263.9 grams of methylamphetamine with a purity of 80.3%.

29. [60]

    Mr Torthitithan’s fingerprints were located on the adhesive of the black gaffer tape surrounding one of the bags. The eight packages were inside different toolboxes, each of which contained clear resealable bags filled with a crystal substance. The bags contained a total of 3,975.7 grams of methylamphetamine, with a purity of 78.8%. Mr Torthitithan’s fingerprints were located on them as well.

30. [61]

    The box was addressed to Mr Torthitithan at 14 Bridge Street, Tempe. There was an invoice attached to the box that recorded contact numbers and address, multiple boxes of gloves, a GKR Transport invoice and in particular a yellow Daytona tool chest with an Apple AirTag stuck to it with black tape.

31. [62]

    The respondent’s fingerprints were located on the adhesive side of the tape attached to the AirTag.

32. [63]

    Sequence 1 concerned the importation of 53.467 kilograms of methamphetamine between 12 and 21 September 2022. The respondent was involved in tracking the imported drugs and facilitating their collection and delivery.

33. [64]

    Shortly after 12.30pm on 12 September 2022, Harvey De Monster gave Mr Torthitithan instructions as to how to retrieve drugs contained in plastic rolls on eight pallets. The pallets were in rolls of green plastic, crushed flat. The plastic sheeting had to be removed to collect the flat bags which was 68 kilograms in total. The bags had been imported from Penang on a ship that arrived in Sydney.

34. [65]

    The bags were not able to be collected until 20 September. In the interim period, on 14 September, Mr Campbell sent the respondent a link to track the ship the methylamphetamine was on (I note that there was no information in the Agreed Facts to suggest who gave Mr Campbell that link). That afternoon, Harvey De Monster asked Mr Torthitithan how long it normally took for the box to be delivered. Mr Torthitithan advised him that the ship the container was on was being unloaded that day. A screenshot sent from Harvey De Monster showed that the container was sent from Singapore on 26 July 2022 and arrived in Sydney on 15 September 2022.

35. [66]

    On 19 September 2022, the respondent told Mr Torthitithan that the box had been held by Customs behind the scenes and there was a high chance “it’s fucked”. The respondent sent a message saying, “ITM said they organise picking tonight”. Mr Torthitithan replied, “[i]f they just scanned the container, it would b [sic] really hard to pick it up. It’s flat and roll in to the plastics.”

36. [67]

    On 20 September 2022, the respondent exchanged messages with Mr Campbell concerning the delivery of this package to a storage facility in Petersham. That evening the respondent sent Mr Torthitithan his expense sheets.

37. [68]

    At 12.38pm that day, the respondent messaged Mr Campbell and asked him, “[c]an you call Camperdown and see if they can accept Sideloader deliveries, or deck deliveries.” Mr Campbell responded that they did, before sending the respondent an International Trade Management (ITM) invoice that is also included in the Agreed Facts.

38. [69]

    Throughout the day, there had been email communications between Cox Architecture, ITM, and White Transport Services about collecting the imported goods and delivering a load to Kennards Storage, Camperdown. There were difficulties due to the size of the truck used for the collection. Co-offender, Mr Aphichotnithithon, sent Mr Torthitithan photographs of what appears to be a storage facility and advised that the password was not working.

39. [70]

    On 20 September 2022, Mr Campbell sent the respondent a message telling him, “[n]eed you to organise your truck driver and truck.” The respondent responded, “where from?” Mr Campbell replied, “[t]hey couldn’t unload at Camperdown, so it’s headed back to Sydenham, they will unpack it direct onto truck.”

40. [71]

    The respondent then called the truck driver, Rodney Parkins, advising there were about 20 pallets of plastic sheets to be picked up “from transport company to storage”. The respondent called back and advised there was a change of plans and he needed a box to be picked up from Sydney Tools, Alexandria and said, “after that you’re going to head out over to Sydenham and pick up four pallets … drop it off to Camperdown … I’ll meet you down at Sydney Tools.”

41. [72]

    CCTV captured the eight pallets of green builders’ film being unloaded at Whites Transport, St Peters. The respondent called Sydney Tools, Alexandria, to advise them he would be coming now to pick up the box.

42. [73]

    The respondent was then seen at Sydney Tools, Alexandria, overseeing the three yellow toolboxes he had purchased being loaded onto the flatbed truck. The truck then travelled to Tempe before continuing on to the Storage King at St Peters, where the toolboxes were unloaded. Mr Campbell had arrived at a Kennards Storage unit at Petersham using fake identification documents provided by the respondent, namely two licences in different names which contained a photograph of himself.

43. [74]

    The respondent was seen on CCTV later that day attending the Kennards storage facility at Petersham.

44. [75]

    At about 1.48pm, Mr Parkins arrived with his truck to pick up the pallets and telephoned the respondent. He advised that he could only carry four at a time and that he had to move the four that he could not fit onto his truck that day on 21 September.

45. [76]

    Shortly before this, the flatbed truck was seen driving out of the Sydenham address with the four pallets containing the green rolled plastic. The truck drove to Kennards Storage at Petersham. Shortly thereafter, the respondent was seen leaving that location.

46. [77]

    Mr Torthitithan sent a message to the group, indicating, “[w]e won’t be doing any unrolling or unpacking tonight. My guys are just going to relocate the pallets in to our shed and scanning for any bugs or tracking devices.” He told Razor that, “[t]he boys will start the unrolling tomorrow”. The respondent was not part of that group chat.

47. [78]

    On 20 September 2022, the co-offender Mr Aphichotnithithon was seen coming and going at the address at Tempe on at least two occasions and captured on CCTV arriving at the Kennards Storage at Petersham on his scooter. He moved the four pallets of green film that had been unloaded earlier by Mr Parkins from the loading dock into the storage area. He sent photographs to Mr Torthitithan of the roll of plastic. He left the storage facility.

48. [79]

    Mr Torthitithan and Razor exchanged messages that they would distribute the drugs interstate.

49. [80]

    Mr Parkins arrived on 21 September and began unloading the remaining four pallets onto his truck. He left at about 1:05pm and arrived at Petersham at about 1:30pm, where he offloaded them. Mr Torthitithan began putting photographs in the Threema group chat of the pallets that had been imported.

50. [81]

    There were discussions in a group chat about distributing the drugs interstate. Neither the respondent nor Mr Campbell were part of these discussions.

51. [82]

    The four unaccompanied pallets of plastic rolls at the Kennards Petersham unit were attended by Mr Aphichotnithithon and he was seen entering that unit and removing the pallets of film into the storage unit. Mr Torthitithan sent Mr Aphichotnithithon photographs that had been sent by Harvey De Monster, showing him how to identify the rolls containing the prohibited drugs.

52. [83]

    Mr Aphichotnithithon remained at the storage unit until about 6:10pm and was seen returning on his scooter with a silver suitcase. He entered the storage unit and left with the suitcase and a roll of green film over his shoulder.

53. [84]

    Police subsequently located the drugs contained in 15 rolls, comprising 51.1108 kilograms of methylamphetamine with a purity of 79%. In total, police seized 20 rolls containing a total of 67.7 kilograms of methylamphetamine. Pure methylamphetamine was assessed as 53.467 kilograms.

54. [85]

    Mr Bui was arrested on 21 September at the Central Cinema car park. He declined to be interviewed. The Kennards Storage unit was subjected to a search warrant. Police found a fake licence with the picture of Mr Bui on it, three Apple AirTags, two boxes containing glassware, and a water bottle which had a presumptive test for methylamphetamine.

55. [86]

    Sequence 4 (the State offence) concerned the supply of 98.11 kilograms of 1,4-butanediol between 21 to 22 September 2022. A commercial quantity is one kilogram and a large commercial quantity is four kilograms. Bottles of 1,4-butanediol with very high purity were found by police in a storage unit rented by the respondent. Examination of the respondent’s phone revealed that he was supplying 1,4-butanediol.

56. [87]

    On 22 September 2022, a search warrant was executed by police at a storage unit at Kingsgrove which had been opened by the respondent on 7 September 2022 in his own name using his genuine address and email. The respondent was also captured on CCTV at these premises. Police located a brown cardboard shipping box containing 500 millilitre bottles with Asian writing on it. The bottles contained 19.389 kilograms of 1,4-butanediol with a purity of 97.5%.

57. [88]

    A black suitcase, which the respondent had been seen placing in the unit, contained:

    1. (1)

       34 bottles comprising 16.257 kilograms of 1,4-butanediol with a purity of 98%;

    2. (2)

       A clear bottle containing 4.284 kilograms of 1,4-butanediol with a purity of 98.5%;

    3. (3)

       A clear plastic jug containing 3.777 kilograms of 1,4-butanediol with a purity of 98%; and

    4. (4)

       A blue container containing 5.196 kilograms of 1,4-butanediol with a purity of 98%.

58. [89]

    Another black suitcase, which the respondent had placed in the unit on 10 September, contained 50 500 ml bottles with a total of 24.095 kilograms of 1,4-butanediol with a purity of 97%. A 25-litre plastic container contained 24.148 kilograms of 1,4-butanediol with a purity of 98.5%. A Powerade bottle contained 965 grams of 1,4-butanediol with a purity of 97.5%.

59. [90]

    A search conducted at the respondent’s home at 164 Kingsgrove Road, Kingsgrove located four fake driver licences depicting the respondent, two mobile phones and a toolbox containing equipment that could be used in the process of manufacturing drugs. Located in the respondent’s bedroom was a Kennards envelope, a receipt for renting the Kennards at Coorparoo, a car rental agreement for the respondent in relation to a car at Brisbane airport on 12 September, a GKR Transport invoice and a vacuum sealer.

60. [91]

    In the respondent’s wardrobe, police located a small resealable bag containing 1.36 grams of methylamphetamine, a glass jar containing 4.84 grams of methylamphetamine, a tin containing 5.7 grams of methylamphetamine, a glass jar containing 4.76 grams of methylamphetamine, ice pipes, four sets of scales and a cigarette lighter.

61. [92]

    The Sequence 5 offence was placed on a Form 1 attached to Sequence 4. It concerned the supply of 99.42 grams of methylamphetamine. During a search of the respondent’s residence, police located a safe containing three bags of a crystal substance which totalled 99.42 grams of methylamphetamine. The respondent’s DNA was located on the seam of one of the bags.

62. [93]

    Police also located a mobile phone with messages consistent with the sale of methamphetamine. On 23 July and 24 July 2022, the respondent had sent messages to T187 which indicated he was selling the drugs. The messages reflect that the respondent did not want to sell at a low price and would sell one as a favour only. The messages recorded that the respondent proposed to book an Uber to deliver the drugs to T187. T187 sent a message saying, “[s]ent it to number 30”. The respondent sent a photograph of a bottle with a message saying, “there’s two bottles makes a litre… pAy [sic] ID me $1017.” Similar bottles like these were found at the 14 Bridge Street, Tempe address.

63. [94]

    On 17 August 2022, the respondent told a person with the handle “Push Button Start” that he would supply him with 1.4 kilograms of prohibited drugs for “22”.

64. [95]

    On 22 August 2022, the respondent supplied a person with the handle “Gave” with an ounce of methylamphetamine for $5,000.

65. [96]

    On 23 August 2022, the respondent supplied Gave with an ounce of methylamphetamine for $5,875.

66. [97]

    On 24 August 2022, the respondent supplied Gave with an ounce of methylamphetamine for $5,000.

67. [98]

    On 28 August 2022, the respondent supplied Gave with two ounces of methylamphetamine. Initially, he paid only $8,050 and was to transfer $1,950 as soon as possible.

68. [99]

    On 29 August 2022, the respondent supplied Gave with 2 ounces of methylamphetamine at 5,000 per ounce. Gave was $2,800 short.

69. [100]

    On 30 August 2022, the respondent supplied Gave with half an ounce of methylamphetamine. Another half an ounce of methylamphetamine and a bottle of 1,4-butanediol was supplied on 31 August 2022.

70. [101]

    On 2 September 2022, Gave sent a message to the respondent requesting “2”. The respondent replied, “I will be there soon in 10mins.” Later, Gave sent a message wondering why the bottle wasn’t frozen. He said, “[i]t’s because it wasn’t in original bottle”. His friend had “given him 5l bottle and [separate] for you”.

71. [102]

    On 3 September 2022, Gave sent a further message to the respondent asking when was the earliest he could see him. The respondent replied, “[w]hat time did you want [to] meet?” Arrangements were then made. The respondent said, “[j]ust keep gathering the money I’ll see you in an hour with one eye and one bit Ken”, ‘Bottle’.”

72. [103]

    On 4 September 2022, the respondent supplied Gave with 1.5 ounces of methylamphetamine.

73. [104]

    On 6 September 2022, Gave requested an ounce or half an ounce from the respondent who replied, “I haven’t gone picked up”. They met shortly afterwards, and the respondent supplied Gave with 1.5 ounces of methylamphetamine.

74. [105]

    On 7 September 2022, Gave asked for “a full”.

75. [106]

    On 8 September 2022, the respondent supplied Gave with an ounce of methylamphetamine for $5,000.

76. [107]

    On 17 August 2022, the respondent agreed to supply Andrew with half an ounce of methylamphetamine.

77. [108]

    On 18 September 2022, the respondent and Krispy Kreme exchanged messages about methylamphetamine. The respondent sent a message asking, “[h]ow many kegs do they have.” Krispy Kreme replied, “10 kegs of eye”, “From Asia”. The respondent sent a message saying, “[t]he eye is rubbish bro”, “Definitely not from overseas”, “It’s cooked in Australia by Vietnamese dud cooks”, … “The rocks look hectic”, “But it makes you sick and want to throw up when you smoke it”, “I wouldn’t even pay $2000 for a keg”.

Proceedings on sentence

1. [109]

   The proceedings on sentence took place on 18 February 2025. The Crown sentence bundle comprised the notice of committal, the court attendance notices, the Agreed Facts, the two s 16BA forms and the Form 1, the respondent’s criminal history and custodial history, and a number of documents relevant to the sentencing of co-offenders, namely:

   1. (1)

      The sentencing reasons of Judge Neilson in R v Campbell [2024] NSWDC 413 on 16 August 2024 with the Agreed Facts and his criminal history;

   2. (2)

      The sentencing reasons of Judge Neilson in R v Barber-Battese [2024] NSWDC 627 on 12 September 2024 with the Agreed Facts and his criminal history;

   3. (3)

      The sentencing reasons of Judge Hanley in R v Watcharaphong Aphichotnithithon on 4 February 2025 with the Agreed Facts and his criminal history.

2. [110]

   The respondent did not give evidence at his proceedings on sentence. Rather, he relied on the following documents to establish mitigating factors on sentence:

   1. (1)

      A psychologists’ report of David Green dated 12 February 2025;

   2. (2)

      EQUIPS letters of attendance for November and December 2022;

   3. (3)

      The Salvation Army Positive Lifestyle Program Certificate dated 6 December 2023;

   4. (4)

      EQUIPS Addiction Program Certificate dated 27 June 2023;

   5. (5)

      Letter from TAFE for completion of traineeship Business Services – Business Certificate III dated 11 June 2024;

   6. (6)

      The Commissioner for Vocational Trainings Certificate of Proficiency in Business Services dated 11 June 2024;

   7. (7)

      CONNECT Certificate of Completion in a Dialectical Behaviour and Resilience based program dated 23 July 2024;

   8. (8)

      BSI Learning Statement of Attainment: Design & Produce business documents dated 22 April 2024;

   9. (9)

      BSI Certificate III in business dated 14 May 2024;

   10. (10)

       BSI Learning Record of Results for Certificate III in business dated 14 May 2024;

   11. (11)

       TAFE statement of Attainment in Facilitate individual service planning and delivery and Participate in workplace health and safety dated 14 June 2024;

   12. (12)

       TAFE Academic Transcript for Facilitate individual service planning and delivery and Participate in workplace health and safety dated 24 June 2024;

   13. (13)

       Letter from TAFE confirming completion of course in Community Service at Metropolitan Remand & Reception Centre (“MRRC”), attendance and academic transcript dated 27 November 2024;

   14. (14)

       Certificate III in Community Service dated December 2024;

   15. (15)

       NSW Corrective Services Case notes from 22 September 2022 to 22 August 2024;

   16. (16)

       “Remorse Letter” dated 11 February 2025;

   17. (17)

       Reference Letter from Julian Bui (brother) dated 14 February 2025;

   18. (18)

       Medical documents of mother (Kim Yen Pham) and grandmother (Thi Hoang) dated 31 March 2023 to 29 November 2024;

   19. (19)

       Reference Letter from Chaplain dated 11 October 2023;

   20. (20)

       Reference Letter from Chaplain dated 4 May 2024; and

   21. (21)

       Letter from Temple dated 11 February 2025.

3. [111]

   In this Court, the respondent relied on extracts of the submissions, both oral and in writing, before the sentencing judge, in support of his submission that the Crown’s conduct of the proceedings on sentence differed to that in this Court and that this fact is relevant to the exercise of the residual discretion.

4. [112]

   This Court has cautioned against relying on the transcript of the proceedings on sentence in submissions in this Court. That is because error is to be found in the Reasons for Sentence and not in the transcript. As Johnson and Bellew JJ stated in Hampton v R [2014] NSWCCA 131 at [23] (Gleeson JA, Price and Garling JJ agreeing):

5. [113]

   An exception to that general rule is where complaint is made of a denial of procedural fairness which can be difficult to establish without recourse to what the sentencing judge indicated (or otherwise) to counsel during the proceedings on sentence: Refaieh v R [2018] NSWCCA 72 at [16]. Another exception would be when a respondent to a Crown appeal seeks to establish that Crown conduct below led the sentencing judge into error (as being relevant to the exercise of the residual discretion). I propose to extract the passages relied upon by the respondent on that basis and will consider them later in these reasons.

6. [114]

   The Crown submitted in writing that “the offender’s role in this syndicate is central to this sentence exercise” and went on to submit that:

7. [115]

   The respondent submitted in writing to the sentencing judge that he should be sentenced on the basis that he was not a principal for “most of the criminality involved” but an employee acting under direction from others in a hierarchy above him. It was submitted that there was no evidence that he received or stood to receive any large sums of money for the duties he performed for or with Mr Torthitithan and/or others that Mr Torthitithan was involved with. It was noted that no substantial monies were located at his home or in a storage unit and he bore none of the indicia of wealth. He rendered accounts for his expenses incurred and was rewarded with drugs and cash from time to time. It is apparent that he sold drugs to support his own addiction.

8. [116]

   The following exchanges took place concerning assistance to his Honour as to the range and comparable cases:

9. [117]

   Immediately following this exchange, the respondent’s senior counsel went on to say this about hierarchy and parity:

10. [118]

    The sentencing judge clarified the respondent’s submissions regarding Mr Campbell as follows:

11. [119]

    Shortly after this exchange, the respondent’s senior counsel realised that he had started his submissions before the Crown had finished his and apologised for “jumping the gun” noting, “the Crown may want to say more things”. His Honour noted that, “[t]he Crown probably wants to hear what you want to say then he might respond, is that right Mr [Crown]?”. The Crown prosecutor replied, “[i]f I need to, your Honour.”

12. [120]

    The respondent’s senior counsel then made general submissions about the respondent’s involvement. His Honour then asked him about the Crown’s written submission with respect to “hierarchy” (paragraph [34]):

13. [121]

    The Crown made no further submissions on the question of hierarchy. As will be addressed below, the respondent placed reliance on his failure to do so.

14. [122]

    The Crown submitted in writing the following regarding the application of the parity principle:

15. [123]

    The respondent submitted the following in writing:

16. [124]

    Senior counsel for the respondent later submitted orally:

Remarks on Sentence

1. [125]

   His Honour reserved his decision, and the respondent was sentenced a week after the proceedings on sentence. It is necessary to set out his Honour’s findings on a number of discrete matters for two reasons. First, a number of submissions in this Court were directed at specific findings made by the sentencing judge. Secondly, this Court will need to have regard to the findings made by the sentencing judge, excluding those which are challenged in this Court, in the event of re-sentence. On these bases, it is necessary to set out the findings in some detail.

2. [126]

   After noting the charges and maximum penalties, his Honour first dealt with the question of parity.

3. [127]

   His Honour noted the results for the co-offenders. He considered the sentence imposed on Mr Campbell to be relevant. He noted that both parties accepted that the sentences imposed on Mr Barber-Battese and Mr Aphichotnithithon were not relevant in the application of the principle of parity.

4. [128]

   His Honour later observed the following in relation to Mr Campbell:

5. [129]

   His Honour went on to recount the Agreed Facts in some detail before turning to assess the objective seriousness of the offences.

6. [130]

   His Honour first noted the Crown submissions in relation to the respondent’s role generally and observed:

7. [131]

   His Honour then went on to make findings concerning the objective seriousness of each offence.

8. [132]

   His Honour noted the significant quantity involved and observed:

9. [133]

   After considering the competing submissions (extracted above), his Honour found the offending to be below the mid-range in these terms:

10. [134]

    After noting the respondent’s actions relied upon, including the instructions from Mr Torthitithan as to how to extract the drug, his Honour observed:

11. [135]

    His Honour did not expressly make any finding as to the seriousness of this offence.

12. [136]

    His Honour made this finding in relation to Sequence 13:

13. [137]

    His Honour did not accept the respondent’s submissions that he only had a limited involvement but indicated he would return to that when applying the relevant principles concerning s 16BA.

14. [138]

    His Honour accepted “again his role is towards the lower end in relation to the job he performed in respect of that offence”.

15. [139]

    His Honour’s finding as to the objective seriousness of Sequence 4 is somewhat unclear. His Honour observed:

16. [140]

    His Honour’s conclusion regarding objective seriousness was as follows:

17. [141]

    Under a heading of “Aggravating Factors”, his Honour noted with “significant concern” that the respondent was convicted in 2017 for supplying and cultivating a quantity of cannabis and was sentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years. His Honour noted the Crown submission that this demonstrated his capacity to associate with criminal drug offending which was relevant to his prospects of rehabilitation.

18. [142]

    His Honour accepted that this conviction disentitled the respondent to any leniency. His Honour also noted that the respondent was placed on an ICO for 12 months in 2022 for dishonesty offences.

19. [143]

    It was noted that the respondent had no breaches of discipline whilst in custody. His Honour noted the respondent’s MRRC case notes observing:

20. [144]

    His Honour noted the pleas of guilty and confirmed that he proposed to apply a 25% discount to reflect the respondent’s facilitation of the interests of justice in relation to both the Commonwealth and State offences.

21. [145]

    Although the respondent did not give evidence, his Honour was satisfied that he was genuinely remorseful and observed the following:

22. [146]

    His Honour also noted the statements of remorse in Mr Green’s report including the following:

23. [147]

    His Honour drew the respondent’s subjective case from material included in Mr Green’s report as summarised in the respondent’s written submissions.

24. [148]

    The respondent was born in Vietnam in 1985. In 1987, his parents fled Vietnam by boat. They spent two years in a refugee camp in Hong Kong before coming to Australia in 1989. His younger brother was born in Australia.

25. [149]

    When he started school, the respondent could not speak English. He changed schools and had to repeat a year. He was diagnosed with epilepsy. He changed schools again. His parents struggled to buy him decent clothes or adequate food. He struggled socially, had few friends and was persistently bullied.

26. [150]

    In 1996, his family moved into public housing accommodation in Woolloomooloo. He changed school again and then started High School at Randwick Boys High School in 1998. By Year 9, he had gravitated towards anti-social peers. When he was offered some ice in Year 10, he began using it weekly.

27. [151]

    His parents separated in 2002, and his younger brother was diagnosed with leukemia the same year. The respondent was in Year 11 and was largely unsupervised in 2002 and 2003 as his brother was in hospital and his mother spent her time with him. The respondent completed the HSC in 2003 but did not do well.

28. [152]

    His mother and brother did not become aware of his drug use until 2004. They encouraged him to quit but the respondent continued to use ice. He enrolled to study at Randwick TAFE but dropped out after six months to support his mother. He held a full-time job at Target in Bondi Junction for several years.

29. [153]

    In 2006, following his brother’s recovery from leukaemia the respondent stopped using ice. He travelled to Vietnam where he met his future wife. In 2007, he started work as a courier driver. He got married in 2009 and had a daughter the following year.

30. [154]

    In 2013, the courier company closed down and the respondent travelled with his family to Vietnam. His wife was unwell and needed treatment. Following his return to Sydney because of work, his wife told him that she and their daughter would remain in Vietnam. The respondent was devastated and began using ice again. His wife agreed to return to Australia to continue to live with him on the condition that he assist her in bringing her parents and brother to Australia.

31. [155]

    In 2014, the respondent started working as a night shift supervisor for a transport company. His ice use continued but he only consumed it “a couple of times” a month.

32. [156]

    In 2016, the respondent’s wife’s family arrived in Australia. Shortly afterwards, his wife ended their relationship and asked the respondent to leave their house.

33. [157]

    The respondent felt betrayed that he had gone into debt to bring his wife’s family to Australia. He fell into a serious depression, began smoking large quantities of ice (one gram a day, three or four days a week) and lost his job. He was homeless and moved in with his mother and brother in Kingsgrove. His brother tried to assist him and took him to the Smart Recovery program at St Vincent’s Hospital, but the respondent relapsed after two months.

34. [158]

    In order to pay off a $20,000 debt to his drug dealer, the respondent became a “crop sitter” for a cannabis cultivation and was arrested for this in 2017. He was abstinent whilst in custody and worked in ground maintenance. He was not able to access any rehabilitation programs in custody. On his release from prison, he was able to obtain employment, and he successfully completed his parole period.

35. [159]

    In February 2021, the respondent’s father, who had cancer, moved back in with the family. The respondent was acting as his primary carer and by October he had lost his job as he had become unreliable. The respondent began a relationship with a woman he met online. He started regularly smoking ice with her and by late 2021, was using it heavily again.

36. [160]

    When his father died in March 2022, the respondent was devastated and became angry and anxious. This caused a strained relationship with his mother and brother.

37. [161]

    It was following his father’s death that the respondent met Mr Torthitithan by chance. When the respondent told Mr Torthitithan about his father’s death and his debts and asked for help, Mr Torthitithan invited him to come and work with his syndicate. He offered to pay the respondent in drugs and cash. The respondent’s role was to check the status of packages, download apps and check tracking numbers. The respondent told his psychologist that he knew that there were drugs, but he did not know the quantity. He was told to track the packages and was given 14 grams in drugs. He was also given instructions in relation to the purchasing of the toolboxes.

38. [162]

    Having earlier stated that the use by the respondent of the handles “Suspect 888” and “Suspect 168” showed that the respondent understood that what he was doing was illegal, his Honour went on to say this:

39. [163]

    His Honour observed that the respondent had been doing well in custody. In October 2022, he began working in the MRRC’s laundry as a washing machine operator with positive reports. In November 2022, he began attending the Remand Addictions Program which he completed in June 2023. The respondent’s case notes consistently record his participation in sessions in positive terms.

40. [164]

    In December 2023, the respondent completed the Salvation Army’s Positive Lifestyle Program. In May 2024, he completed a traineeship in Business Services - Business Certificate III through the NSW Department of Education. In July 2024, he completed a Dialectical Behaviour and Resilience Program. The respondent also completed courses in Digital Literacy, Service Planning and Delivery and Workplace Health and Safety. In December 2024, he was acknowledged for his “outstanding effort” in studying towards a Certificate III - Community Service. One of the respondent’s teachers from this course in a reference prepared for him, described him as a “standout student”.

41. [165]

    Given that the sentencing judge was sentencing the offender for both Commonwealth and State matters, his Honour addressed the respective legislative requirements separately.

42. [166]

    Before specifically addressing them, his Honour found that the respondent “is making genuine attempts at rehabilitation”, that “he has good prospects for rehabilitation” and that “he has reasonable prospects for not reoffending in the future”.

43. [167]

    His Honour was satisfied the respondent:

44. [168]

    There was “no evidence of any undue hardship in custody” and no evidence of hardship to others including his family of note.

45. [169]

    His Honour then noted the requirements of s 16A(2) of the Crimes Act (Cth) and stated that he had taken those matters into account in his recitation thus far. Turning to s 3A of the Sentencing Act, his Honour noted the similarity of factors with Commonwealth sentencing principles and then went on to address the purposes of sentencing in s 3A.

46. [170]

    When considering the State offences his Honour said this:

47. [171]

    Although it is somewhat unclear what his Honour meant by this, I accept the Crown submission that his Honour appears to have proceeded on the basis that the respondent’s substance abuse addictions referred to by Mr Green were attributable to some extent to his difficult childhood. His Honour did not refer to the principles derived from the decisions in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) or Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) and he made no finding of a reduction of moral culpability. The appeal proceeded on the basis that his Honour had reduced the significance of general deterrence to some extent but did not moderate the sentence on account of reduced moral culpability or hardship in custody.

48. [172]

    His Honour said the following in relation to the significance of specific deterrence for the State offences:

Totality

1. [173]

   His Honour considered the application of the principle of totality and found that, “[t]here is a temporal connection in his overall criminality in respect of each of those offences.” His Honour went on to observe:

2. [174]

   In relation to the s 16BA and Form 1 offences, his Honour observed the following:

3. [175]

   In relation to Sequence 4 (the State offence), his Honour found special circumstances and proposed a “substantial” adjustment to the statutory ratio, “to encourage his rehabilitation which is one of the objectives [sic] sentencing process and one that is important to ensure the protection of the community”.

Crown appeals - principles

1. [176]

   The relevant principles governing this appeal are well established. The primary purpose of Crown appeals brought under s 5D of the Criminal Appeal Act 1912 (NSW) was described by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310; [1977] HCA 44 as being to:

2. [177]

   In Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 (“Everett”), Brennan, Deane, Dawson and Gaudron JJ referred to this passage and went on to observe (at 300):

3. [178]

   In Everett, McHugh J described the role of Crown appeals against sentence in this way (at 306):

4. [179]

   Thus, the purpose of Crown appeals is not confined to establishing relevant principles; it extends to setting aside manifestly inadequate sentences to ensure uniformity of sentencing in order to maintain public confidence in the administration of justice.

5. [180]

   As to what the Crown must establish in an appeal brought under s 5D of the Criminal Appeal Act the burden on it is twofold. First, as Kiefel, Bell and Keane JJ confirmed in CMB v Attorney General for the State of NSW (2015) 256 CLR 346; [2015] HCA 9 at [54] (“CMB”), the Crown must demonstrate error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40. In other words, the Court must be satisfied that the non-parole periods and total sentences imposed were outside the range of sentences that could have been imposed: see R v Mereb; R v Younan [2014] NSWCCA 149 at [32].

6. [181]

   Secondly, in the event that such error is established, the Crown must also “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised”: CMB at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ).

7. [182]

   Matters relevant to the exercise of the residual discretion include: any delay by the Crown in lodging the appeal (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green and Quinn”) at [42]); whether the Crown has conducted the case on a different basis from that pursued at first instance (CMB at [65]); whether the respondent’s release on parole is imminent or has already expired (Green and Quinn at [43]); the effect of re-sentencing on the respondent’s progress towards rehabilitation: Green and Quinn at [43]; whether an increased sentence would constitute “tinkering” with the sentence (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [64]) and/or whether re-sentencing would create a disparity with a sentence previously imposed upon a co-offender (Green and Quinn at [37]).

8. [183]

   The relevant principles have been summarised in numerous decisions of this Court. One such example is R v Sara [2020] NSWCCA 119, where the principles were summarised by Harrison J (as his Honour then was) (Bathurst CJ and Hoeben CJ at CL agreeing). In addition to the principles I have already set out above, his Honour observed the following (at [99]):

9. [184]

   The principles applicable to a contention that an aggregate sentence is manifestly excessive were explained by Beech-Jones CJ at CL (Payne JA and Fagan J agreeing) in Lee v R [2020] NSWCCA 244 at [32] as follows:

10. [185]

    In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, Beech-Jones CJ at CL (with whom Garling and Yehia JJ agreed) noted that the same principles apply when the complaint is of manifest inadequacy stating the following (at [54]):

GROUNDS OF APPEAL

1. [186]

   There is a degree of overlap between Grounds 1 and 2 and I propose to consider them together.

Ground 2: The sentence imposed in relation to the NSW offence is manifestly inadequate

1. [187]

   As for Ground 1, the Crown relied upon the guideposts of the maximum penalties, the amount of the drugs, the financial motive and the additional matters on the s 16BA schedule in support of its contention that the indicative sentence for Sequence 1 was manifestly inadequate.

2. [188]

   Reliance was also placed upon a number of comparable cases: DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546; R v Onyebuchi [2016] QCA 143; Wong v R [2018] NSWCCA 263; R v Peng [2020] QCA 12; Legault v R [2014] NSWCCA 271; and Boulette v R [2024] NSWCCA 217. It was submitted that these cases reinforce the conclusion that the indicative sentence for Sequence 1 is manifestly inadequate.

3. [189]

   It was further submitted that the sentence imposed on Mr Campbell provides some indication that the sentence indicated for Sequence 1 was unduly low. The starting point for Mr Campbell was 5 years whereas it was 5 years and 4 months for the respondent. It was submitted that the respondent’s offending conduct was more serious and extensive than the conduct for which Mr Campbell was sentenced. Mr Campbell was sentenced on the basis that there was no evidence of “his being superior in the syndicate to any other person” and that the “only evidence of his reward for his involvement in this offence … was the expectation of ‘free drugs’” and that he “was acting on the directions of other offenders”. Reliance was also placed on the fact that the respondent had two offences to be taken into account on a schedule under s 16BA whereas Mr Campbell had none.

4. [190]

   It was submitted that using Mr Campbell’s sentence to identify manifest inadequacy is appropriate: R v Lembke [2020] NSWCCA 293 at [60] (“Lembke”).

5. [191]

   In addition to submitting that the indicative sentence for Sequence 1 was manifestly inadequate it was submitted that the indicative sentence for Sequence 13 was very lenient, which contributed to the aggregate sentence being manifestly inadequate. Three submissions were made in relation to this contention.

6. [192]

   First, although there was no evidence about the purity of the 860 grams of white powder imported in Sequence 13, it was still well above the 2 grams lower limit for a marketable quantity.

7. [193]

   Secondly, it was submitted that the sentencing judge failed to appreciate some features of the offending when he stated, “[h]is role was limited to attempting to locate the shipments once they had been imported. I accept his role was a relatively minor one in that regard”. Rather, it can be inferred from the messages between the respondent and Mr Torthitithan that the respondent had some degree of knowledge about the contents of the parcel. He was communicating directly with and assisting the more senior person. An example of this is the message extracted above at [36] showing knowledge that the single parcel contained three packages.

8. [194]

   Thirdly, the indicative sentence for Sequence 13 is much lower than that in the similar sentence in R v Schwartz [2018] NSWDC 118 referred to in R v Kassir [2020] NSWCCA 88.

9. [195]

   It was submitted that the degree of notional concurrence between Sequences 1 and 13 was too great. The indicative sentence for Sequence 13 was notionally accumulated upon the indicative sentence for Sequence 1 by one year only. Sequence 13 occurred over a one-month period (11 April 2022 to 13 May 2022) which ended four months prior to the offending in Sequence 1 (12 September 2022 to 21 September 2022).

10. [196]

    As for Ground 2, it was noted that the State offence involved a large commercial quantity (some 24.5 times the threshold of 4 kilograms) and it was of high purity (97.5% to 98.5% purity). The respondent deliberately opened a storage unit and stored the drugs in it away from his home (where small amounts of methylamphetamine were found, which the sentencing judge considered to be consistent with them being for his personal use). The inference is inevitable that this 1,4-butanediol was to be supplied for financial or other gain.

11. [197]

    Other comparable cases were relied upon to establish that a starting point of four years was well below that in Chapman v R [2023] NSWCCA 259, R v Burton [2023] NSWCCA 299, Semple v R [2019] NSWCCA 40, El-Sayed v R [2018] NSWCCA 250, and Bao v R [2016] NSWCCA 16.

12. [198]

    Finally, there was only a modest degree of accumulation between the Commonwealth and State sentences, which compounds the inadequacy of each of them. The sentences imposed involved one year of accumulation only. It was submitted that the aggregate sentence for the Commonwealth offences could not fully reflect the criminality inherent in the State offence, and that it was not open to the sentencing judge to structure the sentences in a way that resulted in this much concurrency and this little accumulation.

13. [199]

    As for Ground 1, the respondent’s submissions focussed on the comparable cases and the sentence imposed on Mr Campbell.

14. [200]

    Complaint was made that no “comparable” decisions were relied upon before the sentencing judge and nor had it been suggested that the sentence imposed on Mr Campbell was manifestly inadequate. It was submitted that the Crown did not engage with the question of due proportion between the sentences imposed on the co-offenders for their roles in Sequence 1 before the sentencing judge and that an appeal is not a second chance for a party to run a case they could have run at trial.

15. [201]

    It was submitted that, in any event, the six cases identified by the Crown do not yield “discernible sentencing patterns” or a “range of sentences” for offences contrary to s 307.1(1) of the Criminal Code. In this regard, reliance was placed on the observations in R v Nakash [2017] NSWCCA 196 (“Nakash”), that the three comparable decisions provided in that case were insufficient to establish a sentencing pattern. I will return to this decision further below.

16. [202]

    As for the sentence imposed on Mr Campbell in relation to Sequence 1, reliance was placed on the respondent’s subjective case which was said to be as strong as Mr Campbell’s. Nor was his Honour bound by the findings of fact in Mr Campbell’s case about his role made by a different judge. In all of the circumstances, it was submitted that Mr Campbell’s sentence does not provide “an indication of the marked inadequacy of the sentence imposed on the respondent”. Further, that there were no Crown appeals against the sentences on Mr Aphichotnithithon and Mr Barber-Battese is relevant as they were much lower.

17. [203]

    Reliance was also placed on the fact that parity is an “ameliorative principle” and “is not concerned with addressing some grievance on the part of the prosecution about disparate treatment of offenders”: R v FF [2023] NSWCCA 186 at [63].

18. [204]

    As for the indicative sentence for Sequence 13, it was submitted that the respondent’s role in this offence was limited to him tracking the consignment at the request of Mr Torthitithan on 8 May 2022 and for a short time after that. The relevant state of mind was recklessness, and the purity of the drug was not known.

19. [205]

    As for Ground 2, it was again noted that no comparable cases were provided to the sentencing judge and, in any event, the five cases identified do not support a conclusion of any misapplication of principle by the sentencing judge in this case. The starting point before discount of the respondent’s sentence was 5 years and 4 months. The starting point of the sentences/indicative sentences in the matters relied upon by the Crown ranged from 4 years to 8 years and 8 months. It was submitted that these starting points do not yield “discernible sentencing patterns” or a “range of sentences” for sentencing for offences of supplying 1,4-butanediol.

20. [206]

    As for the principle of totality, it was noted that his Honour was satisfied that there was a “temporal connection” in the respondent’s overall criminality in respect of each offence but that “some accumulation” was required. It was submitted that the overall sentence imposed reflected that assessment.

21. [207]

    Overall, it was accepted that the overall sentence imposed is lenient, but the respondent had a “compelling” subjective case, and his Honour engaged deeply with the evidence and the submissions he received.

Consideration: Grounds 1 and 2

1. [208]

   Although grounds 1 and 2 are directed at each of the two sentences respectively, the fact remains that the effective total sentence for the respondent’s role in the criminal syndicate was 6 years imprisonment with an effective non-parole period of 3 years and 4 months. As a matter of impression, that effective sentence would appear to be manifestly inadequate having regard to a number of factors.

2. [209]

   First, the maximum penalties for the Commonwealth offences were life imprisonment (Sequence 1) and 25 years imprisonment (Sequence 13). For the State offence, it was life imprisonment and a SNPP of 15 years imprisonment.

3. [210]

   Secondly, the quantity of drugs involved was substantial and not confined to only one type of prohibited drug. Sequence 1 involved 53.467 kilograms of methamphetamine which is about 71 times the threshold for a commercial quantity. Sequence 4 involved the supply of 98.111 kilograms of 1,4-butanediol which was 24.5 times the threshold for a large commercial quantity.

4. [211]

   Thirdly, as for the respondent’s state of mind, his Honour noted that the respondent described himself as, inter alia, “Suspect 888” which shows that the respondent knew what he was doing was illegal. The respondent also told his psychologist that he knew he was dealing with drugs.

5. [212]

   Fourthly, his Honour accepted that the respondent became involved for financial gain and that he would receive drugs and cash in return. Although his Honour noted that the respondent did not show the trappings of wealth, the respondent was to be sentenced on the basis that he agreed to become involved in the criminal enterprise for drugs and money.

6. [213]

   Fifthly, there were real differences in the criminality involved in each of the three offences such that there needed to be some material accumulation. Sequence 1 involved a very large amount of methamphetamine imported in September, Sequence 13 involved the tracking of a cocaine shipment months earlier in about April or May, and Sequence 4 involved the supply of a significant amount of a different drug where the respondent was heavily involved as the principal and not merely assisting others.

7. [214]

   Sixthly, although it is to be accepted that the respondent’s subjective case was favourable, he nonetheless had a criminal history including a past serious drug offence. Nor was this a case where there had been a finding of reduced moral culpability on the principles in De La Rosa or Bugmy.

8. [215]

   Finally, there were five additional offences taken into account on schedules. Of the four Commonwealth offences placed on s 16BA schedules, two carried a maximum penalty of life imprisonment and two carried maximum penalties of 25 years imprisonment. The transcript of the proceedings on sentence records that early into submissions, counsel brought to the sentencing judge’s attention the then recent decision in Roulstone v R [2025] NSWCCA 7. There was criticism in Roulstone v R of the approach taken by the Crown in that matter in placing significantly more criminality on the Forms 1 than on the indictment. Although there is no such criticism made in this matter, the fact remains that this was a case where considerable criminality was placed on such schedules and needed to be reflected in the sentences imposed.

9. [216]

   In Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42], Spigelman CJ enunciated the manner in which such an offence placed on a schedule is to be taken into account (in the context of State offences). It is done so with a view to “increasing the penalty that would otherwise be appropriate for the particular offence”. His Honour went on to explain how that is done as follows:

10. [217]

    It has been held that the same principles apply in relation to matters taken into account on a s 16BA schedule: R v Lamella [2014] NSWCCA 122 at [48]; Le v R [2017] NSWCCA 26 at [49]; and Holt v R (Cth) [2021] NSWCCA 14 at [48]-[53].

11. [218]

    Although the sentencing judge stated that he had increased the sentences due to these additional matters, it is difficult to see that reflected in the indicative sentences (for the Commonwealth offences) and the State sentence.

12. [219]

    Turning then to Ground 1, the appeal is against the aggregate sentence of 5 years with a non-parole period of 2 years and 4 months for the Commonwealth offences and not the indicative sentence. Despite this, establishing that an indicative sentence is manifestly inadequate may assist in establishing that the aggregate sentence is manifestly inadequate.

13. [220]

    I am satisfied that the indicative sentence for Sequence 1 is manifestly inadequate. For the respondent’s involvement in the importation of 53.467 grams of pure methamphetamine (with a further two trafficking offences of commercial quantities taken into account) he received an indicative sentence of 4 years imprisonment. It is not necessary to set out his actual conduct again; it is summarised in detail above at [63]-[85] and for the two s 16BA matters at [47], [55]-[62].

14. [221]

    As for Sequence 13, I accept the Crown submission that the indicative sentence is very lenient but arguably not manifestly inadequate given that the purity of the drug was not known, and the sentencing judge appears to have found that the respondent was reckless about the drug rather than having actual knowledge.

15. [222]

    I have already noted the respondent’s submissions. In addition to placing reliance on the respondent’s strong subjective case, the two main arguments relied upon by the respondent in support of his submission that the indicative sentence for Sequence 1 was not manifestly inadequate were:

    1. (1)

       That it is broadly the same as that imposed on Mr Campbell who had a similar objective and subjective case; and

    2. (2)

       That the Crown should not be permitted to rely on comparable cases to establish manifest inadequacy because it failed to do so before the sentencing judge (and the related submission that the cases do not establish manifest inadequacy in any event).

16. [223]

    I shall address both of these submissions in turn.

17. [224]

    There was considerable weight placed by the respondent on the sentence imposed on Mr Campbell in answer to Ground 1. The only common count between these two co-offenders was Sequence 1 and there are a number of distinguishing features between them. Significantly, unlike this respondent, Mr Campbell did not have two additional serious offences taken into account in relation to that charge.

18. [225]

    Sequence 11 (which was placed on a s16BA schedule for the respondent) was a separate charge for Mr Campbell and his additional offences were firearms offences with lower maximum penalties. Despite the fact that Mr Campbell was being sentenced for less serious offences overall than the respondent, after the application of the totality period in his matter he received a higher effective non-parole period than the respondent did. This is despite the fact that Mr Campbell’s subjective case was stronger including a finding that his moral culpability was reduced due to Bugmy factors.

19. [226]

    Mr Campbell was sentenced on the basis that there was no evidence of “his being superior in the syndicate to any other person”, that the “only evidence of his reward for his involvement in this offence … was the expectation of ‘free drugs’” and that he “was acting on the directions of other offenders”.

20. [227]

    As for their comparative roles, to some extent the relevance of the sentence imposed on Mr Campbell depends on the finding of relative hierarchy (or lack thereof) between the respondent and Mr Campbell as alleged in Ground 1A (which the Crown only relied on in the event of re-sentence). I propose to confine my consideration of the parity question to the sentencing judge’s finding. That finding was that the respondent was higher in the hierarchy than Mr Campbell overall but that in relation to Sequence 1 he “to some extent” performed a “similar level role” to that of Mr Campbell. Although his Honour found that the two offenders “to some extent” were acting at a similar level, the Agreed Facts show that the respondent performed more actual tasks than Mr Campbell in relation to Sequence 1.

21. [228]

    The indicative sentence for the common offence, Sequence 1, for Mr Campbell was 3 years and 3 months (after a discount of 25% for his early plea) as compared with the respondent’s indicative sentence of 4 years. I am satisfied that there are sufficient differences between the cases of the two offenders such that increasing the indicative sentence on that count would not lead to disparity with Mr Campbell.

22. [229]

    Although it is permissible to have regard to Mr Campbell’s sentence to establish inadequacy, the extent that their roles are comparable must be made clear: Lembke at [61]. Although the common count was Sequence 1, the two offenders were being sentenced for different offences thus it is also relevant to consider their aggregate and effective sentences. The respondent stood for sentence for more serious offences and with many of them placed on schedules.

23. [230]

    For all of these reasons, I am not satisfied that the indicative sentence provided for Mr Campbell restrained the sentencing of the respondent in the manner contended for on this appeal.

24. [231]

    As for the respondent’s contention that the Crown should not be permitted to rely on comparable cases in this Court, there are at least two problems with that submission.

25. [232]

    First, this Court frequently has regard to other “comparable” cases in determining whether a sentence is manifestly inadequate or excessive. The availability of such recourse does not depend on whether those cases were provided by the Crown (or applicant in the case of an appeal against the severity of a sentence) to the sentencing judge. Despite this, I accept that when it is apparent that a lack of assistance by the Crown at first instance has led the sentencing judge into error, this can be a relevant factor on the exercise of residual discretion.

26. [233]

    The second difficulty I have with this submission is that I do not accept that the Crown should be criticised for not handing up “comparable” cases in this matter. As the transcript reflects (extracted above at [116]), the Crown served the public defender tables on the respondent. There was discussion before his Honour as to whether statistics were needed, and his Honour did not indicate that he would be assisted by that table. Nor did senior counsel for the respondent suggest they were required at that time. That discussion reveals that given the number of different offences with different drugs and amounts and the charging of both Commonwealth and State offences the Crown submitted that the tables may not assist. The fact that, in hindsight, the sentencing judge may have been assisted by some other decisions, does not lead me to conclude that his Honour fell into error because the Crown did not hand up that table.

27. [234]

    The respondent also relied on the decision in Nakash to support the argument that a small number of comparable cases cannot indicate a range. But in Nakash there were only three cases available on the Judicial Information Research System (“JIRS”) in relation to the offence of trafficking a commercial quantity of cocaine contrary to s 302.2(1) of the Criminal Code. It was a relatively new offence which had not been commonly prosecuted at that time. That is to be contrasted with Sequence 1 which is an offence which is frequently prosecuted.

28. [235]

    For these reasons, I do not consider it inappropriate to refer to other comparative cases as a guide in assessing the question of whether the indicative sentence for Sequence 1 was manifestly inadequate. Having done so, I have found them to be of some assistance but not determinative.

29. [236]

    I would uphold Ground 1.

30. [237]

    Turning to Ground 2, which contends that the sentence imposed for the State offence was manifestly inadequate, I am satisfied that it is for the reasons stated above at [209]-[218] and the following additional reasons.

31. [238]

    First, the sentencing judge described his offending in relation to the State offence as “quite serious”.

32. [239]

    Secondly, there is no evidence of any other co-offender being involved in this supply.

33. [240]

    Thirdly, I have again considered the respondent’s submission that the Crown should be precluded from relying on comparable cases in this Court because they were not provided to the sentencing judge. I do not accept that submission for the first of the two reasons I have already explained when considering Ground 1. I have also considered the respondent’s submission that the comparable cases do not establish that the sentence for the State offence is manifestly inadequate. The cases relied upon by the Crown all concerned sentences imposed for the large commercial or commercial supply of 1,4-butanediol. Having considered the comparable cases, they have assisted me to some extent in reaching my conclusion.

34. [241]

    Having regard to the guideposts of the maximum penalty of life imprisonment, the SNPP of 15 years imprisonment, the respondent’s role, the finding of seriousness, the quantity of drugs involved and the Form 1 matter, I am satisfied that the sentence for the State offence is manifestly inadequate, and I would uphold Ground 2 as well.

Ground 3

1. [242]

   Given that I am satisfied that Grounds 2 and 3 are established, there is no need to go on and consider Ground 3.

Ground 1A: Consideration

1. [243]

   Both the Crown and the respondent proceeded on the basis that the applicable test for a challenge to factual findings (including an assessment regarding objective seriousness) made by a sentencing judge is whether the findings were open on the evidence before the sentencing judge: O’Donoghue at 401. As Simpson J (as her Honour then was) observed in AB v R [2014] NSWCCA 339 at [57] (Meagher JA and Wilson J agreeing), after tracing the early jurisprudence on this question, “[w]hat is essential is that error, properly so called, be demonstrated before this Court will interfere in a finding of fact.” (Emphasis added.)

2. [244]

   There has been some doubt raised about the approach in O’Donoghue in the decisions of Clarke, and Hordern. As I observed in Gibson v Regina [2019] NSWCCA 221 (“Gibson”) at [61]:

3. [245]

   The parties in the present appeal were content for the Court to apply the test in O’Donoghue. I propose to do so. I took the same approach in McLaughlin v R [2025] NSWCCA 13, Aiga v R [2024] NSWCCA 175, Ocek v R [2023] NSWCCA 308, Newman v R [2021] NSWCCA 101, and Gibson.

4. [246]

   The focus of Ground 1A was narrow. It was common ground that Mr Torthitithan was higher in the hierarchy than both the respondent and Mr Campbell and there is no challenge in this Court to the sentencing judge’s finding that the respondent was higher in the hierarchy than Mr Campbell overall. The narrow focus of this proposed ground is whether it was open to his Honour to find that Mr Campbell “to some extent” performed a “similar level role” to Mr Campbell in relation to Sequence 1 (the only common count with Mr Campbell).

5. [247]

   Given that this discrete finding is highly qualified, and that his Honour was otherwise satisfied that the respondent was higher than Mr Campbell in the hierarchy overall, I will proceed on the basis that what his Honour meant was that the respondent was only slightly higher than Mr Campbell in relation to Sequence 1.

6. [248]

   My first observation would be, having examined the Agreed Facts closely, that there is nothing in them to suggest that the established hierarchy would be different for one offence than others nor anything to explain why that would be so.

7. [249]

   The respondent placed reliance on the exchange between the sentencing judge and senior counsel for the respondent extracted above at [120] where it was submitted (in relation to Sequence 1) that the respondent was “same as Campbell in respect”, and that the Crown made no further submissions on this issue in reply. I do not accept the respondent’s submission that in failing to make further submissions in reply, the Crown somehow acquiesced to such a finding.

8. [250]

   In addition to opposing leave to the Crown to rely on Ground 1A based on the conduct below, most of the submissions addressing this ground involved comparing every act attributed to both the respondent and Mr Campbell in the detailed Agreed Facts in order to establish whether it was open to find that “to some extent” they performed “similar level” roles. The Crown argued that the Agreed Facts show that the respondent’s role was at a higher level than Mr Campbell whereas the respondent submitted that no error is shown in the sentencing judge’s categorisation that “to some extent” their roles were similar.

9. [251]

   The relevant facts are extracted above at [63]-[85] and I do not propose to repeat them here, but I will address some of the respondent’s submissions on this issue as follows.

10. [252]

    The Agreed Facts show that only the respondent had direct contact with Mr Torthitithan. Despite there being no reference in the lengthy Agreed Facts to any direct contact between Mr Campbell and Mr Torthitithan, the respondent relied on the fact that it was Mr Campbell who sent the respondent a “link” (to track the shipment) and a screenshot of the relevant Sea Ship Arrival Notice on 14 September 2022 to suggest that Mr Campbell somehow had access to that information, possibly from Mr Torthitithan, before the respondent did. In the absence of any facts or evidence as to where Mr Campbell obtained these, I am not satisfied that he must have obtained them from Mr Torthitithan or someone else higher in the hierarchy than the respondent. Ultimately, this fact did not assist me in assessing their respective positions.

11. [253]

    The Agreed Facts reflect that it was the respondent who delegated to Mr Campbell the task of calling Kennards Storage, Camperdown to check the types of truck they could receive. When Mr Campbell later asked the respondent to organise a truck driver and truck that was because the existing driver could not unload at Camperdown. Contrary to the respondent’s submission, I do not accept that this means that Mr Campbell was delegating a task to the respondent or even that they were performing the same roles. Rather, Mr Campbell was referring a task which had been delegated to him back to the respondent as a problem for him to solve. Similarly, although it was Mr Campbell who arranged the storage unit at Kennards Self Storage, Petersham he did so using fake identification documents provided by the respondent.

12. [254]

    In any event, the respondent undertook additional tasks to Mr Campbell. He received tracking information from Mr Campbell, was aware that the importation contained plastics arranged on pallets, directed Mr Campbell to check about delivery to Kennards Storage at Camperdown, arranged Rodney Parkins to pick up the pallets after the problem with Camperdown and bring them from Whites Transport to the Self Storage in Petersham and then attended that Self Storage.

13. [255]

    The Agreed Facts reflect that Mr Campbell was providing assistance to, and was thus subordinate to, the respondent. Not only that, but the Agreed Facts show that the respondent did substantially more, and performed a more significant role, than Mr Campbell in respect of Sequence 1. Even if their actual roles were similar, the respondent did more and gave directions to Mr Campbell.

14. [256]

    Despite the fact that the Agreed Facts satisfy me that the respondent sat above Mr Campbell in the hierarchy of this criminal syndicate, there are two difficulties with upholding this ground.

15. [257]

    The first difficulty arises from the ambiguity of the findings by his Honour. On one view, they suggest that the respondent was slightly above Mr Campbell but otherwise performing similar roles. That could also be read to mean they were performing similar level roles. The ambiguity makes it difficult to conclude that the finding was not open to his Honour.

16. [258]

    Secondly, what the Crown needs to establish here is that it was not open for his Honour to make the somewhat qualified finding that the respondent, to some extent, performed a similar level role to his co-offender Mr Campbell in relation to Sequence 1. It could not be said that there was no basis for his Honour to make this finding. Although it seems to me a very generous view of the facts, it was a submission put to the sentencing judge, and I am unable to find that it was not open to his Honour to proceed on that basis.

17. [259]

    Although the matter is finely balanced, I am not persuaded that it was not open to the sentencing judge to make this qualified finding.

18. [260]

    Accordingly, I would grant leave to argue this ground but would not uphold it.

19. [261]

    The fact that I would not uphold Ground 1A is not the end of the matter. In the event of re-sentence, it is open to this Court to re-visit factual findings but only if procedural fairness has been afforded to the respondent: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]; LS v R [2020] NSWCCA 27 at [43] and Tomlinson v R [2022] NSWCCA 16 at [251] (in the context of the different finding being urged which was not also a ground of appeal).

20. [262]

    Before turning to consider the residual discretion, I note that since circulating this judgment in draft, I have had the opportunity to read the observations of Leeming JA at [1]-[7] regarding the applicable test. I agree with his Honour that, given that this question is a basal one, there will come a time when this point will have to be argued and determined, preferably with an enlarged bench.

Residual discretion

1. [263]

   The Crown properly identified three factors relevant to the exercise of the residual discretion in this matter.

2. [264]

   First, it was accepted that the Crown did not put any comparable cases to the sentencing judge below and that this can be a matter that weighs against interfering with the sentence. In CMB at [38], French CJ and Gageler J observed in relation to the exercise of the residual discretion in that case, that it was important to consider:

3. [265]

   Further, in CMB at [63], Kiefel, Bell and Keane JJ emphasised (citing King CJ in R v Wilton (1981) 28 SASR 362 at 368) that an appellate court “should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course.”

4. [266]

   Despite acknowledging the potential relevance of this principle in this matter, the Crown submitted that any failure in this case did not cause the manifestly inadequate indicative sentence on Sequence 1.

5. [267]

   Secondly, the question arises as to whether increasing the sentence here would produce a justifiable sense of grievance with respect to the sentence imposed on Mr Campbell. In Green and Quinn, French CJ, Crennan and Keifel JJ considered the relevance of the parity principle to the exercise of the residual discretion in a Crown appeal. In that case, the High Court held that by allowing the Crown appeal, this Court has created disparity with respect to a sentence imposed on a co-offender. The parity principle was described in this way by their Honours at [28] (footnotes omitted):

6. [268]

   Their Honours observed at [31] (footnotes omitted):

7. [269]

   As for the significance of the parity principle to the exercise of the residual discretion in Crown appeals, their Honours observed this at [37]:

8. [270]

   And further at [42] their Honours said this:

9. [271]

   The Crown’s position was that the inadequacy of the aggregate sentence here is so marked as to be an affront to the administration of justice. Further, it was submitted that Mr Campbell was sentenced to an overall longer effective sentence despite being sentenced for less serious offences with lower maximum penalties than the respondent. It was submitted that increasing the respondent’s sentences would not necessarily create a disparity. It was further submitted that the respondent had a larger role than Mr Campbell (as submitted under Ground 1A), so an increase would not necessarily result in a disparity.

10. [272]

    Thirdly, the Crown accepted that the respondent was doing well in custody. Having regard to that more recent affidavit evidence filed in the event of re-sentence, the Crown submitted that re-sentencing would delay, rather than derail, his plans and that any interference with his rehabilitation would not be so great as to warrant the maintenance of manifestly inadequate sentences.

11. [273]

    Overall, the Crown submitted on behalf of the Crown that the Court ought to intervene because the interests of justice require the imposition of appropriate sentences.

12. [274]

    The respondent accepted these three factors as relevant and relied upon them on this issue. The following additional reasons as to why the Court would not intervene in this matter were also identified.

13. [275]

    First, it was submitted that this case is not one where significant principles of law need to be clarified, or further guidance of sentencing courts is required. Any guidance that might be derived by sentencing judges by allowing the appeal in this case “should not come at too high a cost in terms of justice to the individual”: Green and Quinn at [43].

14. [276]

    Secondly, the prosecution did not appeal the sentences imposed on Mr Campbell or Mr Aphichotnithithon for their roles in the drug syndicate, including the sentences imposed on them for the offences committed in concert with the respondent. It was submitted that this is an important consideration.

15. [277]

    Thirdly, the respondent’s release on parole on 19 January 2026 is relatively imminent.

16. [278]

    The respondent also placed considerable emphasis on the “great strides” the respondent has made towards rehabilitation while on remand since September 2022, a period of more than two and a half years. He has been a model prisoner. He has not used ice since his arrest. He has worked consistently and diligently, undertaken therapeutic programs to a high standard and undertaken further study and vocational training.

17. [279]

    I have considered these submissions, and I am satisfied that the Crown has established that the residual discretion should not be exercised in this matter.

18. [280]

    I am not persuaded that increasing the indicative sentence on Sequence 1 would create disparity with Mr Campbell. There was no delay on the part of the Director in bringing on this appeal. Although the respondent will be released from custody early next year that flows from the fact that he had remained in custody since his arrest and his sentence was backdated. Nor am I satisfied that any conduct of the Crown led to the manifestly inadequate sentence. The respondent has been doing well in custody but increasing the length of his non-parole period would not derail his rehabilitation having regard to the contents of his affidavit.

Re-sentence

1. [281]

   The respondent relied on an affidavit sworn by him on 27 June 2025. In it, he deposed to the rehabilitation he has achieved since his sentence was imposed. The respondent states that he has not had any disciplinary issues in custody and has received positive case notes. He is currently employed in the correctional centre and enrolled in a course to obtain his forklift and crane driver’s certification. He has also attended Alcoholics Anonymous and Narcotics Anonymous meetings. Upon future release, the respondent has organised employment and accommodation with his mother and grandmother.

2. [282]

   In his affidavit, the respondent discussed the stress and uncertainty of this appeal. It has apparently prevented him from progressing from a Category C2 security classification to a Category C3 classification. This reclassification would make the offender eligible for work release which he has already arranged at a business that employs his brother. The respondent is particularly concerned about the effect a lengthier sentence would have on his daughter, with whom he wants to establish a stronger relationship. Despite his anxiety about the prospect of his sentence being increased, he deposed that if that occurred it would not “derail” him and he would remain focussed on his rehabilitation.

3. [283]

   I am well satisfied that the respondent has good prospects of rehabilitation but also that he will need a significant period on parole in order to assist in that regard. This additional material confirms the favourable findings made by the sentencing judge.

4. [284]

   I have considered the mandatory considerations in s 16A of the Crimes Act (Cth) and the purposes of sentencing in s 3A of the Sentencing Act. I have already set these factors out in some detail above. I have already summarised the relevant objective and subjective factors upon which the respondent stands to be sentenced. I have adopted all of the favourable findings made by the sentencing judge as to remorse, rehabilitation, prospects of re-offending and special circumstances. Although the finding of a reduced need for general deterrence was a generous one, I propose to adopt it. There was no finding of reduced moral culpability by his Honour, and I would proceed on that basis as well.

5. [285]

   The only finding of the sentencing judge that I would not adopt for the purposes of re-sentencing is that regarding the respondent’s role in the hierarchy relevant to Mr Campbell for Sequence 1. Given the ambiguity arising from that finding, I would sentence the respondent on the basis that he sat above Mr Campbell in the hierarchy. Further, although I am satisfied they performed similar actual roles, the respondent did more physical acts and, unlike Mr Campbell, reported back to Mr Torthitithan.

6. [286]

   Although it is to be accepted that five out of the eight charges brought against the respondent were placed on schedules, as the authorities make clear, those serious matters still need to be reflected in the sentences imposed.

7. [287]

   As for the application of the totality principle, it is to be accepted that the offences all occurred in a period between April and September in 2022. Although this was one course of conduct that involved different drugs and different offending, I accept that the proper application of the totality principle requires some notional concurrence. The aggregate sentence I propose to impose under s 53A of the Sentencing Act for the Commonwealth offences must reflect the seriousness of the offending involving two charges and four offences on schedule. Similarly, when applying the totality principle to the consideration of the commencement date of the State offence, some degree of concurrence is appropriate, but the fact remains that the State offending was serious and committed for financial gain.

8. [288]

   As for the comparable cases, as I have already observed, they have been of some assistance but none of them concerned offenders who stood for sentence with the same variety of prohibited drugs and offences as the respondent.

9. [289]

   The respondent was prepared to become involved in a criminal syndicate involved in importing significant amounts of drugs, particularly ice, into Australia. Although the respondent himself was a user of ice, that is not a mitigating factor on sentence. High maximum penalties are fixed for these offences because of the need to deter and punish those who would seek to profit from such activity. The fact that the offender was not a principal should not obscure the fact that he was willing to become involved for financial return. I would endorse the comments of the Victorian Court of Appeal in Haddara v R [2016] VSCA 168; 260 A Crim R 306 at [49] (Redlich, Priest and Beach JJA) where their Honours observed:

10. [290]

    Having had regard to all of those matters, I would propose the following indicative sentences for Sequences 1 and 13:

    1. (1)

       The indicative sentence for Sequence 1, taking Sequences 12 and 14 into account under s 16BA of the Crimes Act 1914 (Cth) (after a discount of 25% for the early plea of guilty), is 5 years and 3 months (starting point 7 years).

    2. (2)

       The indicative sentence for Sequence 13, taking Sequences 11 and 15 into account under s 16BA of the Crimes Act 1914 (Cth) (after a discount of 25% for the early plea of guilty), is 3 years (starting point 4 years).

11. [291]

    I have structured the two sentences such that the ratio between the effective non-parole period and the effective head sentence is about 59%. Although that ratio is a generous one, the respondent’s affidavit on re-sentence confirmed that, although he is making good efforts regarding his rehabilitation, he will need a significant period on remand to continue that journey upon his release.

Orders

1. [292]

   I would propose the following orders:

   1. (1)

      The Crown appeal is allowed.

   2. (2)

      The sentence imposed on the respondent by Hanley DCJ SC on 3 March 2025 in relation to the State offence is quashed and in lieu thereof the respondent is re-sentenced as follows:

   3. (3)

      The aggregate sentence imposed on the respondent by Hanley SC DCJ on 3 March 2025 for the Commonwealth offences is quashed and in lieu thereof the respondent is re-sentenced as follows:

   4. (4)

      The total effective sentence is one of 8 years and 6 months to commence on 21 September 2022 and expire on 20 March 2031. The effective non-parole period is 5 years to expire on 20 September 2027.