SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0037

BOON PING CHUAH	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	PRIEST and KYROU JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	30 March 2022	
DATE OF JUDGMENT:	5 April 2022	
MEDIUM NEUTRAL CITATION:	[2022] VSCA 51	
JUDGMENT APPEALED FROM:	[2021] VCC 282 (Judge Wraight)	

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CRIMINAL LAW – Appeal – Sentence – Attempt to possess marketable quantity of unlawfully imported border controlled drug – Improper possession of foreign travel document – Total effective sentence of 8 years with non-parole period of 4 years, 6 months – Whether judge erred in finding applicant had firm understanding of drug quantity – Whether judge erred in stating applicant’s entry into Australia not solely for purpose of committing drug offences – Whether sentence manifestly excessive – Appeal allowed – Applicant resentenced to total effective sentence of 6 years, 9 months with non-parole period of 3 years, 9 months. 

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr J R Murphy
with Mr N Howard	Victoria Legal Aid	
			
For the Respondent	Ms K Breckweg	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)	

PRIEST JA
KYROU JA:
Introduction and summary
1	On 15 March 2021, the applicant pleaded guilty to the charges set out in the table below and, on 18 March 2021, he was sentenced by a County Court judge as set out in that table:
Charge	Offence	Maximum	Sentence	Cumulation	
1	Attempt to possess a marketable quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) ss 11.1(1) and 307.6(1)]	25 years	7 years	Base	
2	Improper possession of a foreign travel document [Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 21(4)]	10 years	2 years	1 year	
Total effective sentence: 8 years’ imprisonment	
Non-parole period: 4 years and 6 months	
Section 6AAA statement: 10 years’ imprisonment with a non-parole period of 6 years and 6 months	
2	The applicant has sought leave to appeal against his sentence on the following grounds:
Ground 1 — the sentencing discretion miscarried as a result of the learned sentencing judge’s:
(a)	Finding that the applicant had a firm understanding of the quantity of the substance that was being imported; and
(b)	Failure to afford the applicant procedural fairness in relation to that finding.
Ground 2 — the sentencing discretion miscarried as a result of the learned sentencing judge’s:
(a)	Finding to the effect that the applicant’s entry to Australia was at least partly with the purpose of committing the drug offences;
(b)	Failure to afford the applicant procedural fairness in relation to that finding.
Ground 3 — the sentence imposed on charge 1 and the order for cumulation are manifestly excessive.
3	For the reasons that follow, we have concluded that grounds 1 and 2 are made out and that the outcome in relation to those two grounds is sufficient for leave to appeal to be granted, for the appeal to be allowed and for the sentencing discretion to be reopened.  Accordingly, it is not necessary for us to consider ground 3.
4	The applicant will be resentenced as set out at [68] below.
Circumstances of the offending
Charge 1: Attempt to possess marketable quantity of unlawfully imported border controlled drug
5	On 8 June 2018, two Australian Border Force (‘ABF’) officers attended the UPS parcel delivery centre in Tullamarine and examined a parcel addressed to ‘Chuah Ben Bing’ at the applicant’s residence.  The sender’s details were from an address in Malaysia.  The contents of the parcel had been declared as ‘lady wallet’.  An X-ray of the parcel revealed some anomalies.  One of the ABF officers opened the parcel and found a clear plastic vacuum-sealed bag which appeared to contain a clear crystal‑like substance (‘charge 1 parcel’).
6	The National Measurement Institute found the crystal-like substance to be methamphetamine with a purity of 80.3 per cent.  The substance weighed 499.5 grams with a total pure weight of methamphetamine of 401 grams.  A marketable quantity of methamphetamine is not less than 2 grams (charge 1 — attempt to possess a marketable quantity of an unlawfully imported border controlled drug).
7	On 8 and 9 June 2018, ABF officers examined three further parcels addressed to the applicant from the same address in Malaysia (‘s 16BA parcels’).  Those parcels each contained a clear or white crystalline substance which weighed 521.5 grams, 516.5 grams and 516 grams, respectively.  Preliminary testing of the substances returned a positive result for methamphetamine, but the substances were destroyed prior to formal testing by the National Measurement Institute.  Consequently, the prosecutor conceded that ‘it is only possible to state that [the s 16BA parcels] returned a positive result for Methamphetamine and the amount of the drug was at least 2 grams’.
8	The applicant admitted that the conduct referred to at [7] above constituted three further offences of attempting to possess a marketable quantity of an unlawfully imported border controlled drug.  He was not charged in respect of this offending.  However, pursuant to s 16BA of the Crimes Act 1914 (Cth), the judge was permitted to take this offending into account in passing sentence on the applicant for charges 1 and 2.
Charge 2: Improper possession of foreign travel document
9	On 28 February 2014, the applicant travelled from Malaysia to Australia using Malaysia passport number A30847130 in his name.  He had successfully applied for a student visa permitting him to enter and remain in Australia, subject to the conditions of his visa.  His passport referenced Malaysia National Registration Identity Card (‘NRIC’) 860908025399.  An NRIC is a formal identification document available to Malaysian citizens and permanent residents.  It is assigned a unique 12 digit number and is referenced on all Malaysian passports.
10	On 19 July 2016, the applicant was removed from Australia for failing to comply with the conditions of his student visa, namely, not attending the classes for which he was enrolled at the Technical Education Development Institute in Melbourne.  He was banned from re-entering Australia for a period of three years from the date of his removal.
11	On 3 November 2016, the applicant travelled from Malaysia to Australia using Malaysia passport number A38985299.  The passport was in the name of ‘Ben Bing Chuah’; listed a date of birth of 8 December 1986; and referenced Malaysian NRIC 861208025399 (charge 2 — improper possession of a foreign travel document).
12	The applicant had successfully applied for a student visa in the name of ‘Ben Bing Chuah’.  In applying for that visa, he had answered ‘no’ to the following question: Have you ‘ever been removed, deported or excluded from any country (including Australia)?’
13	On 16 October 2018, Malaysian immigration authorities provided information to the Australian Federal Police (‘AFP’) that both passport numbers A30847130 (in the applicant’s name, ‘Boon Ping Chuah’) and A38985299 (in the name of ‘Ben Bing Chuah’) referred to the same person.  Malaysian immigration authorities further advised that the Malaysian NRIC 8612825399 does not exist, and that passport number A38985299 had been obtained fraudulently.
Arrest and interview
14	On 19 March 2019, AFP officers executed a search warrant at the applicant’s residence.  They arrested him and he was interviewed later that day.
15	The applicant relevantly gave the following answers during his interview:
(a)	He obtained the original passport in his name from an official immigration office.  He used an ‘agent’ to obtain a new passport in the name of ‘Ben Bing Chuah’, which he did not think was the official way of obtaining a passport.
(b)	He initially said that he left Australia voluntarily, but then answered that he was removed from Australia in late 2016 for not abiding by the conditions of his student visa.
(c)	When he was removed from Australia, he was advised that he could not return for a period of three years.  He thought it was okay to return about six months after he had been removed.  He knew it was illegal to enter Australia on the second passport.
(d)	His friend ‘Bao Keap’ asked him to receive parcels addressed to the applicant in the post.  He received about 10 parcels between March 2018 and June 2018.  Upon receiving the parcels, he would give them to his friend without opening them.  He was treated to dinner occasionally for receiving the parcels.
(e)	He did not know what was in the parcels, and he denied knowing the consignments contained methamphetamine or any border controlled drug.  He thought the parcels contained clothes.
(f)	If he had known the parcels had contained drugs, he would have asked that the parcels not be sent to his home.  When asked if he suspected that the parcels might contain drugs, he answered: ‘I felt strange but I didn’t think much about it’.
(g)	He later told his friend to not use his name and to not have the parcels sent to him.  Bao Keap returned to Malaysia in December 2018.
16	An iPhone seized by AFP included WeChat conversations between February and March 2019 which revealed the following:
(a)	The applicant had knowledge of drugs of dependence and was a participant in conversations that describe drugs in code, payments for ‘merchandise’, and discussed consignments and deliveries from Malaysia.
(b)	The applicant paid a third party $3,200 to complete his homework and he attended hardly any classes.
(c)	The applicant enquired about renewing his student visa, and stated that he had heard that people who changed their name like him were detained on arrival in Malaysia for two to three days and also made to pay a fine.
(d)	The applicant enquired whether he could pay his way out of being detained in Malaysia.
(e)	The applicant enquired whether he could change his name again and then return to Australia under that new name.
17	The iPhone contained stored images of: packages of a white substance in plastic snap-seal bags; lists of names, addresses and phone numbers; and online consignment tracking details.
18	The Technical Education Development Institute advised that the applicant was enrolled in a course, had not attended any classes during the 2019 calendar year and his overall course progress was unsatisfactory.  He had previously completed English courses with the Institute from February 2017 until March 2018.
Applicant’s personal circumstances 
19	At the time of the offending, the applicant was 30 to 31 years of age.  He was 34 when he was sentenced.
20	The applicant was born in Malaysia and grew up in Penang.  His parents are now aged in their 70s and of average health.  They no longer work and have previously relied upon the applicant to send money to them.  He has an older sister who is aged 35.
21	After completing his secondary education, the applicant studied English in Penang while working in a restaurant.  He arrived in Australia in 2014 with the view to studying for a Diploma of English and Business at the Technical Education Development Institute.  He was subject to increasing debt from paying course fees and the financial support he provided to his parents.  He rented an apartment with several other students who were all friends of similar age, and worked at a restaurant in Melbourne.
22	The applicant has no children or current partner.  He is in good health.  Prior to being incarcerated, he consumed methamphetamine in social settings.  He has experimented with ecstasy, but has not undertaken any drug rehabilitation.  He does not consume alcohol.
23	Because of restrictions imposed due to the COVID-19 pandemic, the applicant has generally had limited access to exercise and activity while in custody.  While on remand, he completed English classes and had enrolled in a barista course, although those classes ceased due to the restrictions.  He has a billet position cooking and baking cakes.
24	The applicant enjoys support from his family in Malaysia, with whom he regularly speaks by telephone, and they are aware of his offending.  He has received no visits from family or friends and has found prison isolating because of his limited English skills and the lack of other Cantonese speaking prisoners.
25	It is expected that the applicant will be deported from Australia at the conclusion of his sentence.  He intends to return to the family home in Malaysia and resume working to support his family and rebuild relationships with them.
26	The applicant has no prior criminal history.
Plea hearing
27	In written submissions, the prosecutor contended as follows with respect to the applicant’s purpose for entering Australia in 2016:
It is accepted by the prosecution that the evidence does not support the contention that the [applicant] entered Australia under the false passport with the primary intention of committing further offences (that is, offences additional to charge 2).  However, there is an absence of any evidence that the [applicant] was studying or working since he arrived in Australia in November 2016 on the false passport.
28	The prosecutor’s written submissions stated as follows regarding the applicant’s knowledge of the quantity of the drug in the charge 1 parcel:
The offence does not require proof that the defendant was aware of, or reckless as to, the quantity of the substance imported.  However, the weight of the drug will have increased significance when the offender has knowledge or awareness of the amount of the drug imported.
The Crown submits that the [applicant] had some knowledge of the quantity imported, given his admissions in the Record of Interview about previous packages, and the various phone and Wechat messages located on his mobile telephone.  It is submitted the Court can be readily satisfied that the [applicant] had a firm understanding of the quantity that was in the package the subject of charge 1.
29	At the plea hearing, the prosecutor made submissions about the relevance of the prospect of the applicant being deported.  In that context, the judge and the prosecutor stated the following in relation to the applicant’s purpose for entering Australia in 2016:
HIS HONOUR: Although as you say and I think quite rightly, there’s no evidence to the requisite standard that [the applicant] came here for the purpose of - - -
[PROSECUTOR]: No.
HIS HONOUR: No, of doing what - - -
[PROSECUTOR]: I don’t invite Your Honour to make that finding of fact.
HIS HONOUR: All right.  Well, look, I think it was good just to raise that before [defence counsel] so she understands - - -
[PROSECUTOR]: Yes, Your Honour.
HIS HONOUR: - - - where that is headed and we’ll come back to you maybe.
[PROSECUTOR]: Thank you, Your Honour.
HIS HONOUR: Thanks, [defence counsel].  I thought it might be best to raise that first because it’s really I think that and the way in which or the degree to which the 16BA offences — I don’t want to use the word ‘aggravate’ because that can be dangerous too, but the way they can be taken into account in relation to Charge 1 are the probably two main points of importance in the case.
30	Defence counsel subsequently made the following submission in relation to the applicant’s purpose for entering Australia in 2016:
It’s not the case that — and I think the prosecution says this in his submissions that it’s not the case that [the applicant has] come here with the purpose of — he’s certainly not charged in that way, to say that the only reason that he’s come here is for the purpose of committing these sorts of offences.
31	Towards the end of the plea, the prosecutor submitted that, based upon the WeChat conversations referred to at [16] above, the judge could be satisfied that the applicant had actual knowledge that ‘it was a border controlled drug’ rather than being reckless.  The judge, defence counsel and the prosecutor had the following exchange in relation to that submission:
HIS HONOUR: [Defence counsel], I don’t think there’s anything else other than that last point which perhaps you didn’t address, in terms of the recklessness.
[DEFENCE COUNSEL]: As to knowledge?  Yes, Your Honour.  Really the position is that the presence of those messages on the phone that are found at the search and to some degree some of the answers in the record of interview would suggest that Mr Chuah is someone who knows about substances.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: He has in the past been a casual user.  And so to that end, and in combination, there is something to be said for his knowledge of the packages.  As to what they contained, I don’t think it can go as far as to say that he would be aware of either the purity or the amount of grams, for instance.  So the quantity.  Otherwise there’s nothing that could stretch it that far.
HIS HONOUR: I think it’s just put in the general that he had knowledge that what was in the package was a border controlled drug.  I think it’s as simple as that.
[DEFENCE COUNSEL]: Yes.
[PROSECUTOR]: That’s all it is, Your Honour.
HIS HONOUR: Yes.
[PROSECUTOR]: There’s no suggestion he knew - - -
HIS HONOUR: No, no.
[PROSECUTOR]: - - - quantity or purity or anything like that.
HIS HONOUR: No.  Yes, I understand that.
[DEFENCE COUNSEL]: All right, yes.
HIS HONOUR: I wouldn’t take it any further than that.
32	The prosecutor accepted that the s 16BA offences did not speak of offending over a lengthy period because all four parcels arrived within two days.
Sentencing remarks
33	The judge described the offence of attempting to possess a marketable quantity of an unlawfully imported border controlled drug as ‘an inherently serious offence’.  He assessed the applicant’s offending on charge 1 as ‘very serious’.
34	The judge said that he accepted the prosecutor’s submission that, in the absence of specific evidence to the contrary, the inference should be drawn that the applicant committed the offence for profit.
35	In relation to the applicant’s knowledge of the quantity of the drug imported, the judge stated as follows:
[The prosecutor] also submitted that given [the applicant’s] admissions in the record of interview in combination with the text messages, in relation to Charge 1, an inference can be drawn that [he] had a firm understanding of the quantity of the substance that was being imported.  I accept that submission and I am also satisfied that [the applicant] had knowledge of, as opposed to being reckless to, the fact that the substance being imported was in fact a border controlled drug.
36	The judge observed that the s 16BA offences represent similar attempts to possess in almost identical amounts.  He acknowledged that he must only sentence the applicant on charge 1 in relation to the attempted possession, but that, pursuant to s 16BA of the Crimes Act, he was required to have regard to the criminality disclosed by the further attempted possession represented in those three instances.  He stated that the considerations that apply in relation to s 16BA offences required him to consider the applicant’s offending on charge 1 not in isolation, but as part of a course of conduct which takes into account the other three occasions of attempted possession.
37	The judge assessed the gravity of charge 2 as follows:
As to Charge 2, in my view it is also [a] serious example of that offence.  [The applicant] admitted that [he] knew and understood that [he was] unable to apply to re-enter Australia for a period of not less than three years when [he was] deported on 19 July 2016.  Nonetheless, some three and a half months later, [he] entered Australia on a new passport under a false name, blatantly and dishonestly disregarding the prohibition.
38	The judge said the following about the purpose for which the applicant returned to Australia:
I acknowledge … that it is not contended by the prosecution that [the applicant] entered with the sole purpose of committing the drug offences.
39	The judge stated that the applicant’s guilty plea was not made at the earliest opportunity.  However, he found that it nonetheless had utilitarian benefit and represented a willingness to facilitate the course of justice because it spared court time and expense by avoiding a jury trial.
40	The judge noted defence counsel’s submission that the applicant’s time in custody had been particularly difficult and isolating because he had received no visits from family and friends, had limited English skills and lacked other Cantonese speakers in prison.  The judge remarked that the applicant had, however, been able to speak regularly to his family in Malaysia.
41	The judge stated that he took into account that a significant portion of the applicant’s time on remand had been served during the COVID-19 restrictions.  He said that this created a further burden on the applicant in addition to the isolation he had experienced being away from his family and friends.
42	The judge assessed the applicant’s prospects of rehabilitation as ‘very good’.  That was said to be so for three reasons.  First, he had no prior convictions.  Secondly, he had served his time on remand as a compliant and cooperative prisoner without incident.  Thirdly, he has a supportive family in Malaysia, where it was inevitable that he would return upon release from prison.
43	The judge described general deterrence as ‘a primary sentencing consideration’.
44	The judge stated that, despite the applicant’s lack of prior criminal history, the s 16BA offences meant that greater weight must be given to specific deterrence in this instance than would otherwise have been the case if the applicant were simply pleading guilty to charge 1.
Ground 1: Applicant’s understanding of quantity of substance
45	The applicant submitted that, by concluding that he had ‘a firm understanding of the quantity of the substance’, the judge failed to afford him procedural fairness.  This was said to be a material finding which affected the seriousness of the offending.  According to the applicant, this failure to afford procedural fairness was an error which enlivened the discretion to resentence.
46	The applicant contended that there was no basis upon which the judge could have been satisfied to the requisite standard as to his knowledge of the quantity of the drugs.  He conceded that knowledge as to a border controlled drug of at least 2 grams was established by the evidence.  However, he argued that it did not follow that he could be taken, beyond reasonable doubt, to have been aware that there were 401 grams of pure methamphetamine.
47	The Crown submitted that, read in context, it was clear that the prosecutor’s statement at the plea hearing that ‘[t]here’s no suggestion he knew … quantity or purity or anything like that’ related only to the s 16BA parcels.  That was said to be so for two reasons.  First, the statement was made following discussions about ‘the packages’ not the singular charge 1 parcel.  Secondly, in his written submissions, the prosecutor did not contend that the applicant knew the quantity of drugs in the s 16BA parcels, but did contend that he had ‘a firm understanding’ of the quantity of drugs the subject of charge 1.  According to the Crown, there was ample opportunity at the plea hearing for defence counsel to make specific submissions as to the applicant’s knowledge of the quantity in the charge 1 parcel.
48	The Crown contended that, even if ground 1 were reasonably arguable, there is no reasonable prospect that this Court would impose a less severe sentence.  That was said to be because the analysis of comparative sentences under ground 3 revealed that the sentence imposed on charge 1 was reasonably open for offending of this nature.
49	In our opinion, ground 1 is made out.
50	As appears from [28] above, in his written submissions on the plea, the prosecutor contended that the applicant had ‘a firm understanding of the quantity that was in the package the subject of charge 1’.  Nothing was said about the applicant’s knowledge with regard to the s 16BA parcels.  Accordingly, it was clear from the written submissions that the contention with regard to the applicant’s knowledge only applied to the charge 1 parcel.
51	Contrary to the Crown’s submissions, the prosecutor’s oral submissions on the plea regarding the applicant’s knowledge of the quantities of the imported drugs were not confined to the s 16BA parcels.  The exchange between the judge and counsel that is set out at [31] above commences with the judge inviting defence counsel to address the issue of the applicant’s knowledge.  In response, defence counsel stated in respect of imported packages in general that she did not think that one could go as far as to say that the applicant ‘would be aware of either the purity or the amount of grams’.
52	In response to that general statement about imported packages, the judge stated that what is being alleged in general terms was that the applicant had knowledge that what was ‘in the package was a border controlled drug’.  The prosecutor agreed with that proposition and went on to say that there was ‘no suggestion [the applicant] knew … quantity or purity or anything like that’.
53	In our opinion, on a fair reading of the above exchange, the prosecutor could be taken to be conceding either that the applicant did not know the quantity or purity of any of the importations with which he was implicated or that he did not know the quantity or purity of the importation for which he was charged.  The alternative interpretation advanced by the Crown is simply not open on a fair reading of the exchange.
54	Accordingly, defence counsel was entitled to continue to conduct the plea on the basis that the prosecutor had conceded that the applicant did not have knowledge of the quantity or purity of the charge 1 parcel.  As such, it was not open to the judge to sentence the applicant inconsistently with this concession unless he gave the applicant notice that he was not willing to accept the concession, and an opportunity to make submissions as to why the judge should accept it.  As the judge did not do so, and sentenced the applicant on the basis of the prosecutor’s initial position set out in his written submissions rather than his final position set out in the exchange on the plea, the judge failed to accord the applicant procedural fairness.
Ground 2: Applicant’s purpose for entering Australia
55	The applicant submitted that, at the plea hearing, the prosecutor unequivocally conceded, and the judge accepted, that the applicant did not come to Australia for any purpose connected to committing drug offences.  He contended that defence counsel could therefore reasonably conduct the plea on that basis.
56	The applicant argued that the sentencing discretion on charge 2 miscarried as a result of the judge’s failure to afford him procedural fairness on this issue.  According to the applicant, it was not reasonably open to the judge to be satisfied as to any relationship between the applicant’s entry into Australia and the commission of the drug offences.  That was said to be because there was a significant delay between his entry on 3 November 2016 and the commission of the drug offences on 8 and 9 June 2018.
57	The Crown submitted that there was no basis to support ground 2 for three reasons.  First, the prosecutor made it abundantly clear in written submissions and during the plea that there was insufficient evidence to prove, beyond reasonable doubt, that part of the applicant’s motivation for returning to Australia was to commit drug offences.  Secondly, the judge accepted that this was effectively ‘quite right’.  Thirdly, the applicant’s argument is purely a matter of semantics.  That was said to be because the word ‘sole’ is one word in 13 pages of sentencing remarks, where no explicit reference is made to the applicant entering Australia to commit drug offences.  The Crown contended that, if such a serious finding were made, it would be expected that it would occupy some prominence in the sentencing remarks.
58	In our opinion, ground 2 is also made out.
59	There were four possibilities as to whether commission of offences was a purpose for the applicant entering Australia on 3 November 2016.  First, commission of offences was not a purpose.  Secondly, commission of offences was an ancillary purpose.  Thirdly, commission of offences was the primary purpose.  Fourthly, commission of offences was the sole purpose.  Clearly, the applicant’s moral culpability with regard to the offending the subject of charge 2 could be affected depending on the judge’s finding as to which of the above four possibilities applied.
60	As appears from [27] above, in his written submissions on the plea, the prosecutor stated that the evidence did not support a finding that the applicant entered Australia for the ‘primary’ purpose of committing offences.  As appears from [29] above, in his exchange with the prosecutor on the plea, the judge refers to ‘the purpose’, rather than the ‘primary’ purpose, and the prosecutor states that he is not inviting the judge to make a finding that the applicant entered Australia for ‘the purpose’ of committing offences.  The judge then describes the applicant’s purpose for entering Australia and the manner in which the s 16BA offences could be taken into account as ‘probably [the] two main points of importance in the case’.
61	Defence counsel then added to the confusion between ‘primary’ purpose and ‘the purpose’ by referring to ‘the purpose’ as well as to the ‘only reason’ for the applicant’s return to Australia.
62	The judge’s statement in his sentencing remarks that ‘it is not contended by the prosecution that [the applicant] entered with the sole purpose of committing the drug offences’ must be considered against the background set out above.  That statement implicitly accepts that the applicant may have entered Australia for the primary purpose of committing drug offences.  However, it was not open to the judge to do so in circumstances where the prosecutor unequivocally stated in his written submissions that the evidence did not support such a conclusion and the prosecutor never resiled from that position.
63	We reject the Crown’s submission that the inclusion of the word ‘sole’ in the judge’s statement is merely a matter of semantics.  As we have already stated, the judge identified the issue of the applicant’s purpose for entering Australia as one of two important issues in the proceeding.  Accordingly, it could not be said that the judge’s implicit acceptance that the applicant may have entered Australia for the primary purpose of committing drug offences could not have influenced the sentence the judge imposed for charge 2.
64	It follows that, in sentencing the applicant on a basis that was inconsistent with the factual position accepted on the plea, the judge denied the applicant procedural fairness.
65	We would add that the evidence on the plea was insufficient to support a finding that the commission of drug offences formed any part of the purposes for which the applicant entered Australia, let alone the commission of such offences being the primary purpose.
Disposition
66	Having concluded that grounds 1 and 2 are made out, we could only refuse leave to appeal in respect of those grounds if we were satisfied that there is no reasonable prospect of a less severe sentence being imposed than the sentence first imposed.  We are not so satisfied.  Accordingly, leave to appeal will be granted.
67	The applicant’s knowledge of the quantity and purity of the charge 1 parcel and the purpose for which he entered Australia were significant issues on the plea.  Both issues had the capacity to affect the assessment of the seriousness of the offending and the applicant’s moral culpability.  As such, it is likely that the judge’s errors in relation to them resulted in a more severe sentence than would have been the case had the errors not been made.  In these circumstances, we are of the opinion that the errors are of sufficient importance to warrant the appeal being allowed and the sentencing discretion being reopened.
68	The applicant will be resentenced to 6 years’ imprisonment on charge 1 and the commencement date of the sentence for that charge will be amended so as to increase the period of concurrency with the sentence for charge 2 from 12 months to 15 months.  Accordingly, the total effective sentence will be 6 years and 9 months’ imprisonment.  We will fix a non-parole period of 3 years and 9 months’ imprisonment.
69	We will make a declaration pursuant to s 6AAA of the Sentencing Act 1991 that, but for the applicant’s pleas of guilty, we would have imposed a total effective sentence of 8 years and 9 months’ imprisonment with a non-parole period of 5 years and 9 months.
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