Balloey v R

Judgment 1HOEBEN CJ at CL: I agree with Adams J. 2ADAMS J: Introduction 3On 13 December 2007 the appellant (rather than the "applicant" as, for reasons which will become clear, I propose leave to appeal should be granted) was sentenced for the offence that on 31 October 2003 he attempted to possess 195 kilograms of MDMA (ecstasy, 87.44 kilograms pure), which was not less than the commercial quantity, contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). The commercial quantity for MDMA is 0.5 kg pure and the maximum penalty for the offence is life imprisonment. The appellant was sentenced to a term of 24 years of imprisonment with a non-parole period of 16 years, commencing 1 November 2003. This sentence resulted from applying to a starting point of 32 years a reduction of 15 per cent for his plea of guilty, given at the conclusion of the prosecution case, and an additional reduction of 10 per cent for "the mitigatory effect of the element of coercion". 4The appellant had been arraigned on 25 October 2004 with a co-accused, Joseph Breyne who was ultimately acquitted. The appellant's sentence proceedings was ultimately listed for sentence before Dodd DCJ on 16 June 2005 but, because his Honour retired, the proceedings were adjourned to 24 February 2006 and ultimately concluded on 13 December 2007 when the appellant was sentenced. The delay in sentencing the appellant was undesirable but it is not suggested by either party that the reasons for so doing are presently significant. The notice of appeal was filed out of time but the Crown does not oppose an extension of time to allow the application for leave to appeal to be heard. 5The grounds of appeal are, in substance, as follows - 1(a) The learned sentencing judge erred in concluding that the appellant was a "principal" in the commission of the offence for which he was sentenced; and 1(b) the learned sentencing judged erred in sentencing the appellant upon the basis that his offending conduct was aggravated by his having committed the serious offence of importation, with which he was not charged. 2. The sentence imposed was excessive having regard to that imposed on co-offender Antonius Rutten. 3. Some other and lesser sentence is warranted in law and should have been passed. 6Rutten pleaded guilty in the Local Court to the same offence to which the appellant ultimately pleaded guilty and was sentenced on 11 June 2004 by Norrish QC DCJ to a term of imprisonment of 10 years with a non-parole period of 6 years, dating from 1 November 2003, when he was arrested. Facts 7The facts relied on by the Crown were not substantially in dispute, the appellant's case both at trial and on sentence being that he had been coerced into participation in the importation. Of course, his guilty plea necessarily implied that the defence of duress was not available but he gave evidence that he was subjected to threats which overcame his reluctance to participate. I will return to this matter in due course. 8The appellant's involvement became known to the Australian Federal Police in the course of conducting a joint investigation with Belgian police into a criminal group based in Belgium involved in the international movement of drugs concealed in agricultural machinery. The appellant had an agricultural machinery business which may well otherwise have been entirely legitimate. However, he packed a large quantity of MDMA in a hose attached to an irrigator to be sent from Belgium to arrive in Australia in the first week of October. Between June and July 2003 Rutten, a Dutch national, agreed with people in the Netherlands to travel to Australia to assist in the distribution of a large quantity of MDMA. A local customs broker, who was not criminally involved in any way, was engaged to arrange storage for the consignment. 9On 4 October 2003 the irrigator arrived in Sydney and was transferred to a facility for examination, when the drugs were discovered in the rubber hose attached to the irrigator. The ecstasy tablets were replaced with harmless product and the irrigator reconstructed. On 9 October Rutten flew into Sydney, hired a motor vehicle and checked into a serviced apartment in Sydney. Between 22 and 30 October he had a number of coded conversations with a person named Sam, then in Europe. Sam gave Rutten instructions about taking his vehicle to a hotel near the airport, parking it in the car park and collecting it once the ecstasy tablets had been placed in it and the vehicle returned to the hotel by an unidentified person. On 30 October Rutten left his car in the car park of the hotel and checked into a room. On the same day the irrigator was moved to storage premises arranged by the customs agent. On that day, the appellant (a Belgian national) arrived in Sydney and booked into a room at the airport hotel. 10On 31 October Breyne (the appellant's co-accused) also arrived in Sydney and travelled to the hotel where he met with the appellant. The two men then went to a local hardware store and purchased an angle grinder with discs, an extension lead and other tools, shortly after travelling in the vehicle which had been hired by Rutten to the storage premises where the irrigator had been placed. During the course of the day the appellant and Breyne, using the vehicle to tow and unreel the rubber hose in segments, cut the end of the unreeled hose with a circular saw and extracted bags of what they thought was ecstasy. The appellant knew how to do this because he had packed the drugs into the hose before the irrigator was sent to Sydney. The appellant and Breyne placed what they thought was the ecstasy into the vehicle and returned to the hotel, where it was left. Later that day Rutten saw the vehicle and the bags containing white tablets on the back seat, retrieved a set of keys from one of its rear tyres and drove the vehicle and its contents to the underground car park of the building in which he had rented his apartment. Later that night he removed all the bags from the vehicle and put them into various suitcases in his room, making an arrangement with a buyer who wanted to purchase some 200,000 of the 866,000 tablets. Shortly after this conversation the police intervened and Rutten was arrested. 11At about 6.30pm on 31 October 2003 the appellant and Breyne went to the airport and booked flights leaving Australia the following day, staying overnight in a room at a nearby hotel. On 1 November 2003 they purchased a broom from a nearby hardware store and went to the storage facility where the irrigator had been left, cleaning and sweeping the warehouse, obviously to remove any evidence of their earlier activities. Later that day they travelled to the airport, where they were arrested. The appellant's role 12The primary judge rejected the suggestion that the appellant was merely a tool of others or merely a courier, pointing in particular to the fact that he had packed the drugs into the irrigator hose and unpacked them with Breyne's assistance in Sydney. His Honour described his role as "central", a description with which no issue is presently taken. However, his Honour deduced from the "dozens and dozens of telephone calls" which had been intercepted that "he was a principal of this operation". It appears that it had been originally intended that one Sclabi would make the trip to Australia but that, for whatever reason, he could not do so and the appellant therefore flew to Sydney. The judge said - "The offender Balloey says that he was under pressure from certain parties including van Wesenbeeck because of money which he said was wrongfully claimed against him by van Wesenbeeck. On 30 September 2003 at 53 minutes past seven at night, there was a telephone call in which Balloey tells van Wesenbeeck that he does not have the money. Van Wesenbeeck calls him a dirty bastard and says, 'Tomorrow evening at five o'clock listen at six o'clock if you not be here I come and make you to pieces'. There is further abuse. Marnix (Balloey) explains that the reason that he does not have the money is because he is waiting for the credit to be approved on Monday. Janoice tells Marnix that he knows that he is 'playing with his life'. This is taken from Exhibit BBBB on 30 September 2003, a telephone call of that date. Janoice tells Balloey amongst other things, 'I am the boss, you are nothing'. There are various other conversations between van Wesenbeeck and Balloey and I think it likely that Van Wesenbeeck arranged to have Balloey threatened or beaten up. In general, I am satisfied that there was some pressure from van Wesenbeeck on the offender. Notwithstanding that, there is no doubt that Balloey continued with making detailed and complicated arrangements for the transportation of these drugs to Australia. The offender, when he gave evidence about this, indicated that he was reluctant at all stages and felt under pressure. As I will explain in due course, much of the offender's evidence is humbug, but the telephone call to which I have referred is one instance of objective evidence sustaining the suggestion of coercion. I will come back to that. In any event, the brief recitation I have gone through a few moments ago is a concise statement of the objective actions of the offender. He was central in arranging the transportation onto the ship. He packed the drugs into the irrigator. He flew out to Australia and he participated in the exercise of extracting the drugs from the irrigator and putting them in a situation so that they could be taken onwards and no doubt sold in due course." 13The sentencing judge concluded that the appellant "played a significant and fundamental role in an extremely serious criminal enterprise ... [the purpose of which] was trafficking of a narcotic and the distribution of the drugs in Australia". He noted that this "exercise required sophisticated methods of concealment and packing and unpacking, all of which was supervised by the offender" whose role "at the European end" was described by his Honour as "extensive", established not only by the surveillance evidence but also by the evidence of the appellant in the sentence proceedings of how the drugs were delivered to him, how he took the machine to an area in his parents' property and placed the drugs into the irrigator's hose before its transportation to the port and thence to Australia. Moreover, the appellant was involved in the shipment of a trial consignment. 14The appellant had told Dutch police when he was questioned by them in Australia that he put the ecstasy pills in the machine because he "was seriously put under pressure by Roland Sclabi... [who told me] that the Dutch people would assault my family and kill them if I did not co-operate". During the sentence proceedings, the following evidence was given - "Q. What were you thinking of when you first arrived at the airport? A. I was faced with an impossible situation because I knew that at home the criminals were capable of putting my company to fire. To set fire to it or to kill my parents and I had no choice but to follow the list [sic] on the orders of the Belgian chap". The appellant said that he had repeatedly been threatened before he put the drugs into the irrigator hose and had been assaulted "at least 20 times". Further evidence of the appellant was referred to by the sentencing judge, which it is not necessary to detail. 15In sum, as the judge summarised it, the gist of the appellant's claim about coercion is that he had been wrongly accused of misappropriating a large sum of money, that he was beaten and threats and pressure put upon him to repay this money and he engaged in the enterprise of importing the drugs into Australia as the only means of possibly discharging the alleged debt. His Honour observed that the appellant's evidence was almost worthless, given his lies when first arrested and the fact that he had multiple convictions for offences in the nature of fraud. However, his Honour was satisfied that there was significant independent corroboration of some aspects of the coercion claim contained in mutual assistance material provided by an inspector of the Dutch police. His Honour concluded - "In the present case, I am satisfied that the offender has proven on the balance of probabilities that his criminality is mitigated to some extent by threats and pressures. That mitigation assesses towards the lower end of the scale of mitigatory impacts." In coming to this conclusion his Honour referred to the failure of the appellant to go to the police, declare the threats and expose the proposed transaction, which could have been done in Holland, Belgium or Sydney. His Honour also pointed to the fact that pressures and threats of the kind described by the appellant are "common coin in drug dealing" given the illegal nature of the enterprise, observing - "Even though I accept... that [the appellant] was threatened by Hells Angels type characters and the like, and even though I accept on the probabilities that such threats relate to this importation, only a weak or compromised character like this offender would allow such pressure to push him towards major criminality of this kind." The reference to the character of the appellant concerned his possible involvement in illegal activities in Belgium, where he had a significant criminal record for fraud offences. 16The judge explained that he deduced from the material that, in substance, the reason why the appellant failed to go to the police was that he was concerned about exposure of what might have been his own criminal activities, though his Honour did not definitely conclude that he had been otherwise so engaged. The third reason for giving the coercion little significance was that he thought that the appellant had exaggerated the nature of the coercion and its impact on him, rejecting the submission that it was the sole contributing cause of his involvement in the enterprise, although it had "some weight". His Honour accepted that the appellant was involved "partly out of fear". 17As the grounds make clear, the focus of the appeal concerns the findings of the judge as to the appellant's role. Mr Rosser QC for the appellant points in particular to the following passages in the judge's reasons - "The multiplicity of telephone calls in which [the appellant] plays a leading role makes it perfectly clear that I can come to no other conclusion than that he was principal of this operation. He was a principal at the European end and he was a principal at the Australian end. Whether he was the overall organiser is difficult to say and unnecessary to decide. He was a principal. Any suggestion that he was a mere tool of others, that is to say a courier is unsustainable. He was not a mere courier. He actually physically packed the drugs into the irrigator and he physically unpacked them at this end. His role was central. It was not the only role, but it was central and principal role. Dozens and dozens of telephone calls support that proposition." 18His Honour added - "The offender played a significant and fundamental role in an extremely serious criminal enterprise. There is no doubt that the purpose of it was trafficking of a narcotic and the distribution of the drugs in Australia. The exercise required sophisticated methods of concealment and packing and unpacking all of which was supervised by the offender. I repeat that his role was that of a principal. Perhaps than Van Wesenbeeck regarded himself as being more important, but nonetheless the offender was a principal." 19In explaining this finding, his Honour referred to "the extensive role played by the offender at the European end". 20The judge concluded his assessment of the offence - "... by repeating that it is a grave offence, one of the most serious in the criminal calendar. The offence involved a massive importation of prohibited drugs, and the organisation of the crime was highly sophisticated. This is the kind of offence, and the offender's role in it is the kind of role, which prompts consideration of whether or not to impose a sentence of life imprisonment ..." [Emphasis added.] Submissions 21Mr Rosser submitted, in brief, that the sentencing judge's characterisation of the appellant as a principal rested on his Honour's findings of what the appellant had done overseas to arrange with others for the importation of the drugs, as illustrated by his Honour's observation that the appellant was no "mere courier". Put another way, the appellant had been punished for participating in the importation, an offence with which he had not been charged. Mr Rosser contended that the activities for which the appellant was liable to be punished were those which occurred in Australia relating to his attempting to obtain possession of the ecstasy tablets which, as a happenstance, had been imported. 22When comparing the activities of the co-offender, Mr Rosser submitted that the appellant had done little more in Australia than, as he put it, perform the "mechanical task of obtaining the material from where it was secreted and providing it to the ultimate distributor": the evil of distribution of the drugs within Australia, to which the appellant's Australian activities was an initial step, was as much the responsibility of his co-offender and he ought not to have been punished for having been a party to the importation, even if he had made a major contribution to that part of the process, since importation was no part, let alone an element, of the offence for which he was being sentenced but was a different and separate offence for which he could not be punished. 23It was submitted by the Crown, in substance, that it was necessary for the sentencing judge to refer extensively to what had occurred in Europe prior to the importation in order to deal with the appellant's case that he had been a reluctant but coerced participant. The Crown submitted, in effect, that his conclusion that the appellant was a principal concerned the appellant's role in Australia, which would not be understood unless his involvement with the entire transaction which ended with the Australian collection was considered. The prosecutor pointed to the following passage in the judge's reasons (immediately following the passage referring to the appellant's character set out above) - "Let me make it perfectly clear that I am not sentencing this man for any other offence than that for which [he] is specifically before this court. But the way that he has raised this matter of coercion and pressure leads me to conclude that he was, and had been for some time, moving in a milieu where criminality of some kind was occurring. I repeat, this is not to say that I am sentencing him for any other offence - merely that the kind of threats over alleged or disputed debts which are said to be behind the pressures and coercion in this case are a characteristic of drug dealing. This ties in with first point that I made a few moments ago - that the offender failed at any point to go to the police. I deduce that one of the reasons why he failed to go to the police was because in some senses he was a compromised character, though there is no specific evidence upon which I can definitely conclude that he himself was involved in any other particular criminal activity." [Emphasis added.] Consideration 24Were it not for the concluding passage set out above in [20], I would have accepted that the sentencing judge's consideration of the role played by the appellant in Europe was undertaken not only to assess the significance of his claimed coercion but also the extent of his role in Australia in relation to attempting to obtain possession of the large quantity of prohibited drugs. It would have been impossible to accurately assess his responsibility in that regard without understanding his overall role in the enterprise of which what he did in Australia was the culmination. However, the emphatic inclusion as incident of the offence for which the appellant was facing sentence of the fact that it "involved a massive importation" to my mind mandates the conclusion that, indeed, his Honour regarded the importation of the drugs as part and parcel of the criminality of the offence with which the appellant was charged and for which he was being sentenced. 25The passage relied on by the prosecutor which is set out in [23] is, when read in context, confined to the likelihood that the appellant had been involved in crimes in Belgium which rendered him susceptible to pressure and the desire by the judge to make it clear that he was not taking those possible offences into account. This is made clear by the context, which dealt specifically with evaluating the claim of coercion (as shown by the emphasised passage), and not at all with the appellant's role in the offence whether in Belgium or here. 26However, I reject the argument that the judge erred in characterising the appellant's role in the charged offence as a principal. That description of what he did was entirely appropriate and his Honour was not only entitled, but bound, to look at the entirety of the appellant's involvement in the enterprise in order to properly assess the criminality of the charged offence, namely attempting to possess a very large quantity of prohibited drug. 27There have been a number of cases in which this Court has considered the significance of the offender's prior involvement in an importation of the drugs of which he is charged with possessing after they have been landed in Australia. In El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208, Spigelman CJ (James and Simpson JJ agreeing) pointed out - "[22] A similar issue arose in R v Lawless (Court of Criminal Appeal, 24 June 1994, unreported) where the applicant had been found not guilty of being knowingly concerned in the importation, but guilty of an alternative charge of possession, of heroin. Hunt CJ at CL, with whom Gleeson CJ and Blanch J agreed, said (at 4-5): 'The fact that the jury found the applicant not guilty of the charge of being knowingly concerned in the importation does not mean, as has been submitted, that the judge was restricted to the evidence of the admissions made by the applicant to the police. In Regina v Ferrer-Esis (1991) 55 A Crim R 231 at 239, this Court said that a particular circumstance relevant to both an importation offence and a possession offence may be taken into account upon the possession offence (to which the prisoner there had pleaded guilty) notwithstanding that it could also have been taken into account upon an importation offence (with which he had not been charged). In determining the nature of the applicant's possession offence for the purpose of sentencing the applicant, it was appropriate for the judge to have regard to the entire transaction: Regina v Laurentiu & Becheru (at 415); including what he expected to take possession of and what he was going to do with it when he obtained possession - whether, for example, the drugs were for his own use, or whether he was in possession of them in the course of a commercial narcotic venture in which he was taking part as a middleman attached to an organized distribution chain: ibid (at 415-416); In other words, whether the possession related to that of an intermediary or principal in the course of an enterprise or whether it was merely that of an end user: ibid (at 418). Nor are those facts upon which the judge relied denied relevance by the sentencing principle laid down in The Queen v De Simoni (1981) 147 CLR 383. A sentencing judge may take into account all of the conduct of the prisoner, including that which would aggravate the offence, but may not take into account as matters of aggravation facts established in the evidence which would have warranted a conviction for a more serious offence or which would have rendered the prisoner liable to a more serious penalty than that which is prescribed for the offence of which he had been found guilty: ibid (at 389, 392). Both offences involved in this trial carry the same maximum sentence: Customs Act 1901 (Cth), s 233B. Moreover, as this Court also said in Regina v Ferrer-Esis (at 239), the offence of possession is not necessarily a less serious offence than that of importing the drugs; it may or may not be, depending upon the circumstances of the particular case, and in particular upon the involvement of the individual prisoner in each: and see Regina v Thiagarajah (1989) 41 A Crim R 45 at 50; Regina v Lam (1991) 53 A Crim R 118 at 119-120; Regina v Laurentiu & Becheru (at 419).'" 28The Chief Justice noted (at [30]) that, in light of the observations of the plurality in The Queen v Olbrich (1999) 199 CLR 270; 108 A Crim R 464 at [18], the suggestion that the principles in De Simoni do not apply where the offences have the same maximum sentence must be qualified, since the offender cannot be punished for an offence for which he or she has not been charged. However (at [30]), "the circumstances relating to the process of importation may also be relevant to a charge of possession" (emphasis in text) and (at [31) cited, as an example, the following observations by Hodgson JA in R v Guiu [2002] NSWCCA 181; (2002) 129 A Crim R 387 - "[2] The sentencing judge noted that it would offend against the principle in De Simoni (1981) 147 CLR 383; 5 A Crim R 329 to have regard to criminality involved in crimes with which the applicant had not been charged, and undertook a very careful evaluation of the culpability of the applicant. Accordingly, when the sentencing judge found that the applicant's 'role in this importation' was 'of considerably more importance than that of Ferrer', that should not be understood as suggesting that the judge was proceeding on the basis that the applicant could be sentenced for her role in the importation: rather, 'importation' there must, in the light of the judge's reference to De Simoni, be understood as referring to the overall enterprise which included both importation and initial disposal within Australia. [3] But even so, it seems to me that there was error in the sentencing judge's analysis. In this case, it was important to have firmly in view that the applicant was not being sentenced in respect of any role whatsoever in the actual importation of drugs, so that any finding as to knowledge or even involvement in the importation could only be used to assess her culpability in relation to the limited involvement with which she was charged, namely her attempt to obtain possession of drugs already brought to Australia." 29The Chief Justice went on to say - "[33] ...[The] act of possession can be attended by a wide range of moral culpability. The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of possession itself. [34] In my opinion, her Honour made permissible use of the applicant's involvement in the overall transaction. Indeed, he himself gave evidence to the effect that he was involved in a drug smuggling syndicate. The issue her Honour had to resolve was the degree of his involvement. In assessing the evidence in this respect, her Honour did not lose the focus on the particular charge, namely that of an attempt to possess." His Honour (at [40]) agreed with the conclusion of the sentencing judge that the central role of the offender in the "overall transaction ... identified the particular nature of the conduct constituting possession in the present case and which determined that his degree of moral culpability was of a high order". 30The distinction is not always an easy one to make. In Tu v R [2011] NSWCCA 31 Hall J said (citing, inter alia, Lawless and El-Ghourani) - "[74] Accordingly, in the present case, the fact of communications between both the applicant and Zhang and the exporters of the drugs prior to importation, whilst not an aggravating factor in relation to possession offences, may nonetheless be taken into account in elucidating the nature of the applicant's possession offence for the purposes of sentencing ... In other words, the possession if obtained in the context of a criminal narcotic venture may be different from possession obtained in unplanned or unsophisticated circumstances. In this way, the overall context becomes pertinent to an assessment of the culpability of an accused for an offence of possession by seeing it in its context...[so that] the circumstances relating to the process of importation may also be relevant to a charge of possession ..." Nevertheless, as pointed out by McCallum J - "[142] The Crown submitted that it was appropriate for the Judge to have regard to "the entire transaction". As correctly noted on behalf of the applicant, however, that approach must yield to the principle stated in De Simoni . To the extent that the entire transaction brought into consideration complicity in the importation by way of aggravation, such conduct could plainly have been made the subject of a distinct charge and accordingly ought not to have been taken into account." 31In the present case, so far as the judge used the evidence as to the appellant's involvement in the overall transaction to identify the particular nature of the conduct constituting the offence of attempting to possess the drug to determine the degree of his moral culpability and conclude it was of a high order (to adopt the language of Spigelman CJ in El-Ghourani v R at [40]), his Honour committed no error. However, with respect, the passages cited above from his Honour's reasons demonstrate that he went much further and regarded the offence for which the appellant was being sentenced as involving also the importation. This conclusion is strengthened by the very substantial sentence of 32 years which was his Honour's starting point and his considering whether a life sentence was appropriate. 32Accordingly, I would propose that leave to appeal be granted, ground 1(a) be dismissed but that ground 1(b) be upheld. As the court must, subject to s 6(3) of the Criminal Appeal Act 1912 (NSW), resentence the appellant, it is not necessary to deal with ground 2. Resentence 33The objective circumstances are sufficiently set out above. It is appropriate to adopt the primary judge's factual findings. Not only do they appear to be justified by the evidence but it was not submitted on the appellant's behalf that, apart from the conclusion that the appellant was a principal, his Honour erred. I have concluded that the judge was entitled to look at the overall scheme involving the appellant for the purpose of defining his role in the offence and that his Honour did not err in describing him as a principal. With respect, however, I do not find this appellation particularly informative in this case (vide Olbrich at [19] ff), though certainly the appellant played a more important role than that of courier. For resentencing, it is more useful, to my mind, simply to consider the appellant's actual role, so far as it can be determined for the purpose of assessing both his culpability and bringing into account the sentence imposed on the co-offender Rutten. 34I would accept the judge's conclusions about the very doubtful veracity of the appellant and the limited extent to which coercion was a significant factor in his offending. Coercion is part of the objective circumstances of the offence and should be considered as part of the overall assessment of the appellant's culpability. With respect, no specific discount (as undertaken by the primary judge) should be separately applied. There was some evidence of assisting the authorities which his Honour (with respect, rightly) characterised as trivial. 35Summing up the objective factors, the appellant, as part of the drug distribution business of a criminal group, provided the agricultural equipment in which the MDMA was secreted, supervised its loading, and came to Australia to unpack the machine and ensure the drugs were delivered to the person (Rutten) responsible for ongoing distribution. The intercepted telephone calls involving the appellant commence in April 2003 when the details of the purchase by the appellant of the machine are discussed in terms which indicate a much earlier involvement. Frequent subsequent calls deal with many detailed aspects of the proposed importation, indicating that the appellant was, in important respects, managing this aspect of the business, no doubt with others. He was party to an exploratory delivery. I would accept that the appellant was not involved at the inception or overall organizational control level and, as found by the primary judge, that in part his cooperation was secured by coercion, though this was towards the lower end of the scale. As mentioned, it was not initially the arrangement for him to go to Australia but this became necessary because another participant was unavailable. Contrary to the submission made by Mr Rosser in this respect, the change did not suggest the appellant's minor role. If anything, it suggests the opposite. The details of what happened in Australia I have already set out. The role in the attempted possession was as a significant, rather than incidental, participant in the fact that the drugs were present in the machine and their being removed for the purpose of being passed on and ultimately distributed. Disregarding any aggravation that may have inhered from his involvement in the importation, the appellant attempted to ensure the accomplishment of the very point of the arrangement in which he had been an actively and significantly engaged for a considerable time. It is not possible to determine the financial advantage the appellant hoped to gain, but it should be inferred from the very large quantity of drugs and the scale and character of his involvement that he expected it would have been substantial. His criminal culpability was therefore considerable. 36As to the appellant's subjective features, the following matters have been taken largely from the primary judge's reasons. The appellant was aged 51 years at the date of the offence and is now 57. He is a Belgian national, married with two children, the family residing in Belgium. The impact of his imprisonment on his family is a relevant consideration although it can play but a slight role in his sentence. That he cannot be visited by his family is also a relevant factor, as is his lack of familiarity with English, but these are relatively insignificant matters, given they are present in many cases of this type involving an offender from abroad. The appellant has a criminal record commencing in 1988 and has been imprisoned on five occasions for forgery, fraud, attempted fraud and the like. He has no convictions involving drugs or violence. He has been diagnosed with rheumatoid arthritis and requires medication for this and other conditions. There is no suggestion that his medical condition is not being adequately managed in prison or that it renders his imprisonment significantly more harsh. In light of the attempts of the appellant to minimise his responsibility both to police and less than candid evidence in the sentence proceedings, there is no evidence of remorse. His plea was given in response to an overwhelming Crown case. The judge considered the appellant's prospects of rehabilitation as not "particularly good" in light of his criminal history. Given his age on release and, assuming the support of his family, I would assess the appellant as having some, though guarded, prospects of rehabilitation. 37The Crown in this Court did not suggest the allowance of a 15 per cent discount for the plea, albeit that it came late, was inappropriate. 38I now move to the sentence imposed on Rutten by Norrish DCJ of 10 years with a non-parole period 6 years. This sentence followed the allowance of significant discounts. Essentially, Rutten's role was as a trusted warehouser and distributor. Allowing a discount of 25 per cent for the guilty plea to a starting point of 26 years and 8 months yields a sentence of 20 years imprisonment. The judge allowed a further 50 per cent discount for cooperation (of which 25 per cent was for future cooperation), resulting in the sentence of 10 years. So far as subjective features are concerned, Rutten was somewhat younger than the appellant, unmarried and without children; he was a truck driver with some previous, though vague, involvement with drug selling but no criminal convictions. He was remorseful and contrite. 39The crucial differences between these offenders, though, are their differing roles and the cooperation with authorities. As to the former, the appellant was involved much more in the overall operation, though not in the proposed distribution which was Rutten's responsibility. It is, however, essential to focus on the character of the charge, which is concerned with the attempt to obtain possession of the MDMA in Australia. In this respect, it seems to me there is some merit in the contention of Mr Rosser for the appellant that, if anything, the involvement of the appellant was somewhat less than Rutten's was to be. If it were proved, say, that the appellant was to receive part of the proceeds of Rutten's sales, so that he would in that way be a participant in the distribution, that would be a very different matter. It was not suggested that he had any role in directing Rutten how to go about his job. There is no evidence as to any continuing role that the appellant expected to play once the MDMA had been located in Australia and passed to Rutten. Of course, the latter matter is very different, with the added advantage that it is quantified. Decision 40I would grant the extension of time for leave to appeal, grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court and substitute a sentence as follows. Taking into account the sentence imposed on Rutten, I would commence with a term of 23 years and 6 months imprisonment and reduce it by 15 per cent, resulting in a (slightly rounded up) sentence of 19 years imprisonment commencing on 1 November 2003. I would set a non-parole period of 13 years. 41HALL J: I agree with Adams J.