Diefenbach v R [1999] WASCA 4

Customs Act 1901 (Cth) s233B

Respondent : Commonwealth Director of Public Prosecutions

1. MALCOLM CJ: This is an application for leave to appeal against sentence of 12 years' imprisonment. On 30 September 1998 the applicant was convicted on her plea of guilty to count (1) in an indictment which alleged that on 30 March 1998 at Perth she imported into Australia prohibited imports to which s233B of the Customs Act 1901 (Cth) applied, namely, narcotic goods consisting of a quantity of 3,4 Methylenedioxymethamphetamine, also known as MDMA or ecstasy, being not less than the commercial quantity applicable to that narcotic substance, contrary to s233B(1)(b) of the Customs Act. Upon that plea being entered, counsel for the Crown tendered to the Court a certificate signed for and on behalf of the Commonwealth Director of Public Prosecutions, declining to proceed further with regard to the second count on the indictment, which alleged that on the same date and at the same place the applicant was knowingly concerned in the importation of prohibited imports to which s233B of the Customs Act applied, being a quantity of the same drug, being not less than the commercial quantity applicable to that narcotic substance, contrary to s233B(1)(d) of the Customs Act.

2. On 30 March 1998 the applicant and three others, namely Jorge Lindke, Peter Schubert and Monika Emma Jezowski, arrived at Perth International Airport on board the same flight from Amsterdam via Kuala Lumpur. The applicant and the others were stopped by customs officers, spoken to and subsequently searched. Each of them was wearing beneath their clothing a female girdle in which were secreted socks containing a quantity of tablets which were later determined to be ecstasy. The applicant was found to be carrying 6967 tablets with a gross weight of 2.083kg containing 562.4g of pure ecstasy. The trafficable quantity of the drug is 0.5 of a gram and the commercial quantity is 500g. Mr Lindke had in his possession 6313 tablets containing 505.8g of pure ecstasy with a gross weight of 1.887kg. Mr Schubert was found in possession of 6007 tablets containing 513g of pure ecstasy with a gross weight of 1796g. Ms Jezowski was found with 6007 tablets containing 472.1g of pure ecstasy with a gross weight of 1796g. The total quantity involved in the attempted importation was over 2kg pure.

3. The applicant and the others were taken to Australian Federal Police headquarters in West Perth where they each separately participated in tape recorded records of interview. The applicant made no comments which were of any assistance to the police. The applicant was also found in possession of the sum of A$100, US$10, DM1900 and 20 Dutch guilders, all of which was ordered by the trial Judge to be forfeited to the Commonwealth.

4. This Court was told that the applicant's plea was not made under the fast track system and a full brief had been prepared. However, counsel for the applicant made the point below that she pleaded guilty in the Court of Petty Sessions on 26 June 1998. That was one week after Jezowski pleaded guilty, one week before Lindke pleaded guilty, and before the election papers were received.

5. In the course of stating the facts to the Court, counsel for the Crown said that all of the tablets imported by the four offenders were destined for the Perth market. It was pointed out that Mr Schubert had immediately confessed and cooperated with the authorities with the result that his sentence, which would otherwise have been imprisonment for 9 years with a 4½ year minimum, had been reduced to 5 years with a 2½ year minimum. In the case of Ms Jezowski, in the light of her personal circumstances, she was sentenced to a term of imprisonment for 9 years with a minimum of 4 years. The Crown submitted that Mr Lindke should not be dealt with differently from Ms Jezowski as far as head sentence of 9 years was concerned by reason of parity, although later said he should be treated differently because a full brief had been prepared and his guilty plea came after the opportunity of the fast track procedure had passed him by. In the end, however, the Crown accepted that because Mr Lindke's guilty plea was fairly early, the Court should "consider that it was almost a fast track". Ms Jezowski's quantity was a trafficable quantity rather than a commercial quantity. Each of the other three had imported a commercial quantity. It was submitted by the Crown that the applicant's degree of culpability or criminality was substantially higher than the other three. The reasons stated by counsel for the Crown were that she recruited and advised the other three as couriers. She was the one who explained to Mr Schubert that he was not to have any metal on his person while travelling so as to avoid being searched at airport security. She collected the airline tickets from an unknown third party and provided them to the other three couriers. She informed them as to where they were to be accommodated overseas and in Australia. She went to a department store with the other three where each of them purchased a girdle. She and Mr Lindke collected from a flat in Amsterdam the packages containing the ecstasy and gave them to the other three couriers in a hotel room in Amsterdam. There they all tried the girdles on in which the packages were secreted. It was the applicant who gave a copy of Mr Schubert's passport to the travel agent overseas to facilitate the arrangement of his visa to Australia. The applicant collected his airline ticket which she later handed to him, together with his Australian visa. She informed him that he would receive a sum of money, airline tickets and accommodation in Australia as payment for the importation of the drugs.

6. The Crown submitted that the degree of culpability of the applicant should be reflected both in her head sentence and in the minimum term by being approximately 20% to 25% greater than the others. It was suggested that the street value of the drug was, on average, $50 per tablet, which represented some $348,350 in the case of the applicant and $315,650 in the case of Mr Lindke.

7. In his plea in mitigation, counsel for the applicant submitted that she was contacted by a person named Renata, a Dutch friend, and asked to fly to Australia with three others. They would be asked to carry goods and would receive US$1000 plus accommodation in Australia for two weeks and a return business class airfare. Mr Lindke was the applicant's boyfriend, Ms Jezowski a close friend and Mr Schubert was the husband of a close friend. The applicant asked them whether they wished to participate. Upon their agreement she passed their names to Renata so that tickets could be purchased. The point counsel sought to make was that she had not gone out to recruit on the streets, whatever difference that might make. She did not pay for the tickets or arrange any accommodation. The applicant said that she knew nothing about the arrangements in Australia for the passing on of the drugs. The applicant was not paid any more than the others for her role in the criminal enterprise.

8. The maximum penalty for this offence was life imprisonment. On 16 November 1998 the applicant was sentenced to imprisonment for 12 years, to commence from 30 March 1998, the date upon which she was taken into custody. A non-parole period of 6 years was fixed. On the same date, Mr Lindke was sentenced to imprisonment for 9 years with a non-parole period of 4½ years, commencing from 30 March 1998, the date upon which he was taken into custody. The learned sentencing Judge said:

"As with the other three people involved in this transaction, you were also caught red-handed with the drugs attached to your body. The only significant factor that entitles you to a discount from what would be the appropriate sentence is your plea of guilty at a very early stage. There is little else that constitutes mitigation on your behalf. I note with some concern from the report that I received following your evidence to the Dutch judge in Perth, that you provided very little useful assistance. ..."

9. In the meantime, on 19 August 1998 Mr Schubert was sentenced to imprisonment for 5½ years with a non-parole period of 30 months, on the basis that the sentence would date from 30 March 1998 when he was taken into custody.

10. In his case, the sentencing Judge, Wallwork J, said:

"Having particular regard to your cooperation with the authorities, your early pleas of guilty and the other matters to which I have referred, including the provisions of section 16A of the Crimes Act, I would, but for section 21E of the act (sic Act) and your future cooperation, have sentenced you to a term of 9 years' imprisonment with a parole period of 4 and a half years: that is, comparing that with Bloomfield and Hughes [unreported; SCt of WA; No 87 of 1998; sentencing remarks dated 28 May 1998], of 10 [years] and 5 years non-parole period.

However, having regard to the provisions of section 21E of the act (sic Act) and to the contents of the sealed envelope, I must further reduce that sentence. And I do; I reduce it to one of 5 and a half years' imprisonment with a non-parole period of 30 months' imprisonment. That sentence will date from 30 March 1998, when you were taken into custody."

"Taking into account all the circumstances which I have related and the other matters which have been told to me by both counsel, but particularly the fact that you are already 32 years of age, you have not yet started your family and your parents are both ageing, in my view an appropriate sentence in this case is one slightly less than that imposed on Mr Bloomfield and Mr Hughes. Because of the difference in the quantity of drugs brought in and the other matters to which I have referred, I now sentence you to a maximum term of 9 years' imprisonment with a minimum term of 4 years before you will become eligible for parole.

That is a short minimum in these circumstances and I realise it won't be easy, but I can't make it any shorter. That (sic those) terms will date from 30 March 1998 when you were first taken into custody."

12. In passing sentence on the applicant Scott J said:

"When you arrived at the international airport in Perth it was discovered that you and three other persons with whom you were travelling each was carrying a large quantity of ecstasy tablets. The evidence reveals that the quantity you personally carried was 2663.3 grams, which were contained in seven socks which you had wrapped around your abdomen.

When you were stopped by the police and when it was revealed that you were carrying this illegal drug, you told the customs officer that you did not know what it was. In my opinion, that was clearly a lie, as the evidence to which I will later refer reveals. The evidence in the brief indicates that on 18 March 1998 you had recruited a man by the name of Schubert to bring a quantity of ecstasy tablets to Australia for the sum of 10,000 guilders.

You had told Schubert that he would need to obtain special clothing for the purpose of importing the ecstasy. The clothing had to be free of metal, so as to avoid attracting the attention of metal detectors in the airports through which you were going to travel. The brief also reveals that you explained to Mr Schubert how to pack the articles so that they could be carried within the girdles.

You not only recruited Mr Schubert but also another woman by the name of Monika Jezowski, and each of the four of you - that is, yourself and your co-accused Lindke and the two to whom I have referred - were each carrying a large quantity of ecstasy tablets in the same manner that I have described. In your case, as I have said, the quantity on your person was 2663.5 grams. In that respect, it is to be noted that a trafficable quantity under the Customs Act upon which you were charged is .5 of a gram, and a commercial quantity is 500 grams, so that the quantity on your person was five times the commercial quantity, looked at in its bulk form.

As you would well realise, it is vitally important that, in countries such as Australia, importations of illegal drugs should be deterred. I am sure it is the same in your country. Judges have a particular responsibility to try and deter the illicit traffic in drugs and, in this case, the substantial quantity of drugs concerned makes it imperative that an appropriate deterrent penalty is imposed.

I am advised that the average street price for the tablets is between $30 and $70 and, on average, about $50 per tablet, which is some indication of the value of the quantity of the illegal drugs that you were importing. Whilst it can properly be said that you were a courier, it is also clear that you recruited the other three people and that, in terms of the chain of command, you were the senior person involved in this importation.

In addition, you were caught red-handed at the airport with the drugs attached to your body and throughout the course of this inquiry, apart from your plea of guilty, you have been uncooperative with the authorities. In that sense you are not entitled to the discount that would be available to people who assist the authorities. I note, however, that you have pleaded guilty at a very early stage and that aspect of the matter does entitle you to some discount.

It is also clear from the papers placed before me that your involvement in this offence was not to service your own addiction or that of your friends, but purely for commercial purposes. When that is taken into account, together with your lack of cooperation, then the only factor which entitles you to any discount is the fact that you have pleaded guilty at an early stage.

The discount for that factor needs to be taken into account along with the other factors to which I have referred. The maximum penalty for a case such as this is life imprisonment. That penalty has no doubt been fixed because of the untold misery that the drug trade brings, particularly to young persons in this country. In some cases the use of illicit drugs has even caused the unfortunate deaths of young people in this community.

As part of your involvement in this offence you were responsible for obtaining airline tickets and visas and ... you were also responsible for arranging the clothing and the manner in which the drugs were to be carried. I take into account your age, the matters put to me by your counsel and the letter you sent to me in determining the appropriate sentence. In addition, I take into account the sentences imposed upon Jezowski and Schubert, two of the couriers involved in this case.

Special considerations, however, apply to Mr Schubert because of his cooperation with the authorities. As I told you on 30 September 1998, had you cooperated fully and frankly with the Dutch judge who came to Western Australia, the sentence would have been significantly reduced.

However, the report which I have received is anything but favourable to you in that regard. Accordingly, no discount will be made in relation to your evidence provided to that authority. The law requires me to fix a head term and a non-parole period and, in doing that, I am required to take into account the matters referred to in section 16A of the Commonwealth Crimes Act. In addition, I am obliged to tell you that the sentencing will entail a period of imprisonment of not less than the non-parole period which I am about to impose. In addition, if a parole order is made after that time, you will thereafter serve the remainder of your sentence in the community.

If a parole order is made, it will be subject to conditions which may be amended or revoked. If you do abide by the conditions of parole during the parole period, there will not be any difficulties, but if you violate any of the parole terms, you are liable to be returned to prison to serve the balance of the term. It is therefore of vital importance that you abide strictly by any terms of parole.

Would you please stand? All of those matters having been taken into account and after allowing a discount for your plea of guilty, the appropriate term of imprisonment for you is one of 12 years to run from 30 March 1998, the date upon which you were taken into custody. In relation to that term, there will be a non-parole period of 6 years as required by the statute."

13. The applicant seeks to appeal against the sentence imposed on her on the following grounds:

"1. The sentence of 12 years imprisonment was manifestly excessive. The Sentencing Judge erred in finding:

a) That the Applicant personally carried into Australia 2,663.3 grams of ecstacy (sic ecstasy).

b) That the Applicant personally carried into Australia a quantity of ecstacy (sic ecstasy) five times the Commercial quantity

c) That the Applicant was responsible for obtaining airline tickets and visas.

d) That the Applicant recruited a man by the name of Schubert to bring a quantity of ecstacy (sic ecstasy) tablets to Australia for the sum of 10,000 guilders.

2. The sentence of 12 years imprisonment was disproportionate to the sentence of 9 years passed on other offenders, Jorge Lindke and Monica Emma Jezowski.

3. In sentencing the Applicant to 12 years imprisonment the Sentencing Judge erred in taking into account the role that the Applicant played in encouraging others to commit offences which she was not convicted of."

14. In support of ground 1 of the appeal it was submitted that the sentence of imprisonment for 12 years was manifestly excessive because the learned sentencing Judge erred in finding that the applicant:

(a) personally carried into Australia 2663.3g of ecstasy;

(b) personally carried into Australia a quantity of ecstasy five times the commercial quantity;

(c) was responsible for obtaining airline tickets and visas; and

(d) recruited Mr Schubert to bring in a quantity of ecstasy tablets to Australia for the sum of 10,000 guilders.

15. As has been seen, the quantity of ecstasy which the applicant imported was 2083g of which 562.4g was pure. The quantity of ecstasy was not five times the commercial quantity but only just over the commercial quantity under the Customs Act, which is 500g pure. It was also submitted that the learned Judge erred in finding that the applicant was responsible for obtaining the airline tickets and visas when on the prosecution case, all that the applicant did was to provide the names and collect the tickets. The finding that Schubert was recruited on the basis that he would be paid the sum of 10,000 Dutch guilders was in error as the applicant stated only that Mr Schubert would receive the sum of US$1000, which was a significantly lesser sum. These errors appear to have been reflected in the more severe sentence imposed upon the applicant.

16. It is convenient to deal with grounds 2 and 3 of the appeal together. It was submitted that the applicant should have been sentenced on the same basis as Lindke and Jezowski. In support of ground 2 of the grounds of appeal it was submitted that the sentence of imprisonment for 12 years was disproportionate to the sentence of imprisonment for 9 years passed on Mr Lindke and Ms Jezowski. This resulted in her receiving a sentence which was 33% higher than the sentence imposed upon Mr Lindke, although the offences which they committed were nearly identical. It was submitted that the degree of disparity was such as to give rise to a justifiable sense of grievance in that it would give the appearance that justice had not been done to an impartial observer: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 per Gibbs CJ and 611-612 per Mason J.

17. The grounds for distinguishing between co-offenders for the purposes of sentencing must be real and substantial: Robertson (1989) 44 A Crim R 224 at 227 per Malcolm CJ.

18. On the face of it, the justification for the heavier sentence imposed upon the applicant related to her role in recruiting the others and communicating to them the modus operandi, passing on the airline tickets and visas and collecting the drugs for importation. No doubt these facts would have been of considerable significance in relation to the charge of being knowingly concerned in the importations made by the three others which was the subject of count (2) on the indictment, which was withdrawn following her plea of guilty to count (1). It follows that the extent to which she was sentenced to a significantly greater term of imprisonment than the others because of her role in relation to the other offenders, there was clearly a danger that she would be sentenced for playing a part in the offences committed by others when the charge of being knowingly concerned in their importations was expressly withdrawn. This seems to be reflected in the comment made by the learned sentencing Judge that:

"As part of your involvement in this offence you were responsible for obtaining airline tickets and visas and ... you were also responsible for arranging the clothing and the manner in which the drugs were to be carried."

19. Counsel for the Crown submitted that the parity principle applies only to co-offenders: see Lowe v The Queen (supra) at 610 per Gibbs CJ; at 611-613 per Mason J; at 616-619 per Brennan J and 623 per Dawson J. This was acknowledged by all of the members of the High Court in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. Kirby J at 338 seemed to suggest that the parity principle might also be applied to persons who are not co-offenders in the strict sense, but who were offenders "in a situation demanding comparison and contrast". In the present case, all four offenders were involved in the same criminal enterprise, although each was criminally responsible for his or her own importation. It may be accepted, however, that in such a case the sentencing Court is entitled to have regard to "the entire transaction" and sentence those involved, having regard to their respective roles: Laurentiu and Becheru (1992) 63 A Crim R 402 at 414-416 and 420-421 per Wood J (with whom Sharpe J agreed). It may be accepted that there can be relevant differences between co-offenders or offenders playing some part in an overall criminal enterprise in terms of their respective degrees of criminality, including the respective parts which they played in the commission of an offence: Postiglione (supra) per Dawson and Gaudron JJ at 301-302; per McHugh J at 314; and per Gummow J at 325. Kirby J said at 340:

"But the parity principle itself must operate upon sentencing facts which will inevitably provide grounds for discrimination on the basis of the offender's involvement in the offence ..."

20. In my opinion, while it was not permissible to sentence the applicant for her contribution to the offences committed by others, it was possible to take into account her role as the person who recruited others to participate in the overall transaction, collected their airline tickets and visas, picked up the drugs and generally organised the others, as being matters which showed that she was more than a mere courier recruited for the purposes of importing the quantity of the drug she brought into Australia. In other words, she was as a courier at a higher level than the other three couriers. Consequently, it is her greater involvement in the organisation than that of a "mere" courier which is taken into account in relation to her own importation. Thus, she was the one who collected the drugs that were imported. The learned sentencing Judge referred to the other activities "As part of your involvement in this offence ...". Having said that, there are factors tending to indicate that she was only little more than a courier and channel of communication. For example, she did not make or know about all the arrangements and she did not get paid any more than the others.

21. In order to avoid the danger of sentencing her as if she had pleaded guilty to being knowingly concerned in the other importations, it might be thought appropriate to adopt the same or a very similar starting point as her co-offenders for the purposes of sentencing.

22. In The Queen v Reisner, unreported; SCt of WA; No 240 of 1995; sentencing remarks dated 31 August 1995, Pidgeon J sentenced an offender who pleaded guilty to importing into Australia a commercial quantity of ecstasy and a trafficable quantity of narcotic goods related to ecstasy. The quantity of ecstasy was 10,970 tablets containing either ecstasy or the related drug, comprising 2596.4g of ecstasy and lactose, containing 804.9g of pure ecstasy. This was more than 300g in excess of the commercial quantity. In addition, there were 804g of a second drug which contained 187.9g pure, in respect of which the trafficable quantity of 0.5 of a gram. The street value of the consignment was between $500,000 and $1 million. It was accepted that the offender was to be paid $2000 for bringing in the consignment and delivering it to persons in Australia who would arrange its further distribution.

23. In passing sentencing, Pidgeon J said that in a case where a commercial quantity was involved and the maximum penalty was life imprisonment, these factors would normally call for a term of at least 15 years' imprisonment prior to making any deductions and discounts. In that case, however, his Honour decided upon a starting point of 14 years.

24. Subsequently, in The Queen v Bloomfield & Hughes, unreported; SCt of WA; No 87 of 1998; sentencing remarks dated 28 May 1998, Walsh J was called upon to sentence two offenders named Bloomfield and Hughes for an importation of similar drugs. They were intercepted on arrival at Perth Airport on a flight from London. Bloomfield wore a vest which contained 7065 tablets of ecstasy weighing 2165.9g, being 619.4g pure. He was also carrying 1745 tablets of amphetamine weighing 557.5g, being 17.8g pure. The vest worn by Hughes contained 5972 tablets weighing 1820.1g, being 518.7g pure ecstasy and 2500 amphetamine tablets weighing 794.3g, being 32.6g of pure amphetamines. A third offender named Randall was also involved, who was described as the overseer on the flight and who had provided the drugs and vests before the others joined the flight. Randall wore a vest containing 6995 ecstasy tablets weighing 2151.4g, containing 611g of pure ecstasy and 1762 tablets of amphetamines weighing 560.9g, being 28.6g of pure amphetamine. Walsh J said that having regard to the authorities, the appropriate sentence for the totality of the conduct of Bloomfield and Hughes was a sentence of 14 to 15 years' imprisonment. This was reduced to a sentence of 10 years because of the fast-track pleas of guilty and other mitigating factors. The non-parole period in each case was 5 years and the sentences were backdated to the point of time when they had been taken into custody.

25. On 5 August 1998 Randall was sentenced by Wallwork J: The Queen v Randall, unreported; SCt of WA; No 120 of 1998; sentencing remarks dated 5 August 1998. Randall was sentenced as the "leading courier or the courier in charge", who was to collect the vests from the other two upon arrival in Perth. Randall was sentenced to 12 years' imprisonment on each of the two counts in the indictment, to be served concurrently and fixed a non-parole period of 6 years.

26. In my opinion, the role played by Mr Randall in the importation in which he and his co-offenders were involved was more significant than that of the present applicant.

27. This is not an easy matter but, in the end, I am persuaded that in the case of the applicant it would be appropriate to apply a somewhat higher starting point in her case than in the case of the other three, and in particular, than in the case of Mr Schubert and Ms Jezowski. Because she played a greater role in co-ordinating the whole importation, her criminality in respect of her own importation was necessarily somewhat higher: cf Laurentiu and Becheru (supra) per Wood J at 415-417. At the same time, however, as Gibbs CJ said in De Simoni v The Queen [1981] HCA 31; (1981) 147 CLR 383 at 389:

"[A] Judge in imposing sentencing is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

28. In other words, account can be taken of the fact that she was not a mere courier, but not so as to punish her as if she had been guilty of the charge withdrawn.

29. As far as mitigation is concerned, mention should be made of the comments of the trial Judge in his sentencing remarks about the applicant's lack of cooperation with the authorities. As his Honour said, Schubert got significant discount for cooperating with the authorities, and the applicant would have got a significant reduction if she had "cooperated fully and frankly with the Dutch judge who came to Western Australia". His Honour went on to say:

"However, the report which I have received is anything but favourable to you in that regard. Accordingly, no discount will be made in relation to your evidence provided to that authority."

30. It appears from the materials that the Dutch judge was investigating another matter about which the applicant knew nothing, although questions about the present matter were asked, and as Mr Bayly for the applicant said:

"She certainly named people and she certainly answered each and every question that was put to her in relation to what occurred. I suppose it's suggested that she wasn't of particularly much assistance because they knew what she told [them]."

31. So it would seem a little harsh to suggest she did not cooperate when it appears she did not have the information of another case that the authorities were interested in, and when she did in fact freely give information that she did know.

32. In my opinion, the learned sentencing Judge imposed a sentence which gave the appearance of disparity, capable of giving rise to a justifiable sense of grievance on the part of the applicant that she had, in the end, been sentenced for her part in the other importations, notwithstanding the withdrawal of the charge in respect of count (2). In my view, her greater criminality and culpability with respect to the offence she herself committed would have been adequately reflected in a starting point of 14 years, rather than the 12 years for the other offenders. It was accepted that the applicant was entitled to a substantial discount for her plea of guilty and on that account, I would reduce the sentence to one of 10 years. In the circumstances, I would make no further deduction on account of personal mitigating circumstances: cf R v Tait & Barkley (1979) 46 FLR 386.

33. For these reasons I would grant the applicant leave to appeal, allow the appeal and reduce the sentence imposed by the learned Judge from one of 12 years to one of 10 years to commence from 30 March 1998. The non-parole period will be reduced from 6 years to 5 years.

34. IPP J: I have read the reasons to be published by his Honour the Chief Justice. I agree with them and his Honour's conclusions. I have nothing further to add.

35. STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by the Chief Justice. I agree with the conclusions at which his Honour has arrived but wish to express a few brief reasons of my own.

36. There are two principles which are brought into play by the facts of this case.

37. The first is that there can, as the Chief Justice has pointed out, and often will be relevant differences between co-offenders, or offenders playing some part in an overall criminal enterprise, in terms of their respective degrees of criminality, including the respective parts which each played in the commission of the offence or offences, resulting in different starting points for each when it comes to sentencing. (See Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301-2, 325-6 and 336 and Laurentiu and Becheru (1992) 63 A Crim R 402.) In applying this first principle the sentencing court is, as the Chief Justice has also pointed out, entitled to have regard to "the entire transaction" (see Laurentiu and Becheru, supra, at 414-416 and 420-421).

38. The second and more fundamental and important principle is that, in considering the conduct of the person to be sentenced, including any aggravating conduct, the sentencing court cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence or for some other offence of which that person has not been convicted (De Simoni v The Queen [1981] HCA 31; (1981) 147 CLR 383 at 389).

39. In this case the offence to which each of the four persons concerned pleaded guilty was that of importing into Australia the prohibited drug Ecstasy. There was little to chose between the four offenders as regards the quantity imported or the circumstances of the importation itself. The only distinguishing features, so far as the applicant is concerned, which might have justified a higher starting point for the purposes of her sentencing, are that it was she who recruited the others to assist her in bringing the drugs into Australia, collected their airline tickets and visas and suggested the means by which the drugs would be carried.

40. It is plain that the learned sentencing Judge did take these features into account in sentencing the applicant. He said, in that regard, as the learned Chief Justice has pointed out, that:

"As part of your involvement in this offence you were responsible for obtaining airline tickets and visas and, as I have indicated to you, you were also responsible for arranging the clothing and the manner in which the drugs were to be carried."

41. If his Honour took those matters into account for the purpose of increasing the sentence imposed by him upon the applicant because of her involvement in the offences committed by her fellow offenders then he would have infringed the second principle. He would in that event have sentenced her, in effect, also in respect of an offence to which she had not pleaded guilty and with which the Commonwealth Director of Public Prosecutions had declined to proceed.

42. However, I do not consider that that is what his Honour did. Rather, as it seems to me, his Honour drew a distinction between the applicant's degree of criminality, in respect of the offence of which she was convicted, and that of her fellow offenders, in respect of the offence of which each of them was convicted, by reference to the fact that the applicant was an importer of prohibited drugs at a higher level on the scale than her fellow offenders. She was a person with an organisational role unlike each of the other offenders who were mere (and I use that word only in a comparative sense) couriers.

43. While it is, in circumstances of this kind, important not to cross the line between the application of the first principle and the infringement of the second it seems to me that there is a distinction, albeit perhaps a fine one, between, on the one hand, taking into account the applicant's organisational role in assessing her comparative degree of criminality and, on the other, sentencing her for being, as a consequence, knowingly concerned in the importation of the prohibited drug by the other offenders.

44. While the latter course is impermissible the former is, I think, not only permissible but necessary. Were the position otherwise there would be an air of unreality in the sentencing process and the Court would not be exercising its entitlement to have regard to "the entire transaction" (see Laurentiu and Becheru, supra, at 414-416 and 420-421).

45. That the learned sentencing Judge was conscious of this distinction, and applied it correctly, seems to me to be evident from the fact that the factors to which I have referred were taken into account by his Honour as part of the applicant's involvement "in this offence" (my italics).

46. It follows that I agree with the Chief Justice that it would be appropriate, in the case of the applicant, to apply a somewhat higher starting point than in the case of her fellow offenders and, in particular, Mr Lindke and Ms Jezowski. However I also agree that the sentence imposed by the learned sentencing Judge did, with due respect to him, give the appearance of disparity capable of giving rise to a justifiable sense of grievance on the applicant's part that she had, in fact, been sentenced for her involvement in the other importations notwithstanding that the second count on the indictment was not proceeded with. I agree, too, with the Chief Justice that the applicant's overall criminality should appropriately be reflected in a starting point of 14 years and that her sentence should, on account of her plea of guilty, be reduced to one of 10 years with a non-parole period of 5 years.

47. I would consequently grant the applicant leave to appeal and allow the appeal to that extent.