Halac v R

Facts

1. The following summary of the facts is taken from the Statement of Facts tendered to the sentencing Judge, and from her Honour's summary.
2. The applicant was identified by the Australian Federal Police (AFP) in connection with a syndicate in the Netherlands involved in trafficking controlled drugs in Australia. Amongst others, Ferry Cornelis Van Tatenhove, Adrian Stavrianos, Scott Bryce, and Sjoerd Segaar also came to the attention of the AFP.
3. Between 1 February 2011 and 18 April 2011, the applicant was observed in the vicinity of a residential unit block in Clovelly on seven occasions. The applicant was observed by occupants of the Clovelly units opening and leaning into a white Mercedes van ("the van"). Keys to the van and a padlock for the garage in which it was housed were located in the boot of a locked car in the garage of a residential unit at 2 Grosvenor Street, Kensington. The single lock-up garage at the Clovelly units, and a unit at the Kensington units were both leased by Mr Van Tatenhove.
4. On 17 March 2011, which was the day of the principal offence, the applicant drove his black Volkswagen Golf ("the Golf") vehicle to Kensington, where he parked and walked into the driveway of the residential unit block at 2 Grosvenor Street.
5. Shortly after arriving, the applicant was seen driving away from that residential unit block in a blue Holden Commodore. The blue Commodore was registered in the name of a known alias of Mr Van Tatenhove in February 2010. The applicant drove the Commodore to the Clovelly units, entered the driveway, and reversed the car to the garage door of Unit 6, the unit leased by Mr Van Tatenhove.
6. The applicant, while parked in front of the garage at the Clovelly units, was seen to open the boot of the Commodore. The applicant left the Clovelly units and drove the Commodore to the Moore Park SupaCenta where he parked and was approached by Mr Stavrianos. Mr Stavrianos identified a white Toyota Corolla which was also parked in the car park. The applicant parked the Commodore next to the Corolla, removed three large sports bags from the Commodore, and placed them in the rear hatch of the Corolla. A further conversation took place between the applicant and Mr Stavrianos. Following the conversation the applicant left the SupaCenta, returned the Commodore back to the unit at Kensington, and left the property on foot. He was not arrested at that time.
7. Mr Stavrianos met Mr Bryce at the exit of the car park at the SupaCenta and appeared to hand him a set of keys. Mr Bryce walked to the Corolla and drove the car out of the car park. Shortly after, Mr Bryce was stopped by AFP members and arrested. Three black bags containing 50.045 kg of white powder were located in the rear of the Corolla and seized. Mr Stavrianos was arrested by AFP members at about the same time in Kensington. The applicant was not arrested at that time.
8. In respect of the schedule offence, the applicant was first observed to be involved on 21 March 2011, when he drove his Golf to the unit at Kensington, where he met with Mr Sjoerd Segaar. Mr Segaar, a Dutch national also identified by AFP members in relation to the syndicate, resided at the Kensington unit for a short period from 25 February 2011 until he left on 31 March 2011 to complete his role in the schedule offence.
9. The applicant drove with Mr Segaar to Botany where Mr Segaar left the vehicle and entered the premises of Travel Wheels, a campervan rental company. Mr Segaar rented a campervan for a period from 21 March 2011 to 19 May 2011.
10. Mr Segaar departed Travel Wheels in the campervan and followed the applicant in his vehicle to the Kensington units, where Mr Segaar and the campervan remained, and the applicant drove away in his Golf.
11. Over the course of the next week, the applicant was seen on numerous occasions with Mr Segaar at the Kensington unit. The applicant was seen removing various items, including a toolbox, from his Golf and walking them into the unit block at Kensington. The applicant was also seen in the vicinity of the Clovelly unit block.
12. On 28 March 2011, while the campervan was parked at Kensington, Mr Segaar was seen looking beneath the mattress inside. The applicant, who had arrived shortly before in his Golf, retrieved tools from his vehicle and entered the campervan with Mr Segaar. Shortly after, the two men drove in the Golf to Bunnings Warehouse in Randwick where they were seen leaving with three pieces of plywood, a hand saw, and a blue and white coloured Esky.
13. Upon returning to Kensington, a conversation between the two men was recorded as they were working in the campervan. The translation of their intercepted conversation indicated that the two men were constructing something inside the van for the purpose of concealing two items.
14. The applicant and Mr Segaar then drove to Anaconda Camping Goods Store at the Moore Park SupaCenta and purchased various camping items, including two black Denali brand backpacks. The two men left the store with their items contained in two large Anaconda branded orange plastic bags.
15. The following day, 29 March 2011, the applicant picked Mr Segaar up from the Kensington unit and drove to the vicinity of 35 Darley Road, Randwick, where Mr Segaar left the Golf and put an orange plastic bag in a rubbish bin. AFP members later retrieved the orange coloured Anaconda branded plastic bag from the bin which was found to contain, amongst other things, silver duct tape and latex gloves. Forensic testing revealed the presence of methamphetamine and 4-methymethylamphetamine on several pieces of the silver duct tape.
16. At 9:10am on 31 March 2011 Mr Segaar left the Kensington unit in the campervan. He was tracked by police to Perth where he arrived on 7 April 2011. On 20 April 2011 Western Australian Police in company with AFP members searched the campervan and located two black Denali brand backpacks concealed inside modified boxes beneath the mattress in the campervan. Each backpack contained seven packages of off-white powder that had a combined weight of 14.312 kg. Mr Segaar was arrested that night.
17. The applicant was arrested on 20 April 2011 when AFP members executed a search warrant at his residential premises at Unit 1/17 Marcel Avenue, Coogee.
18. On 21 April 2011, the day after the applicant was arrested, the garage at the Clovelly units was searched and found to house the white Mercedes van with expired registration and flat tyres. Inside the van, police located a number of sports bags containing plastic bags filled with an off-white powder. The powder was found to be methamphetamine and 4-methymethylamphetamine, and had a combined weight of 164.7 kilograms. The pure weight of the drugs was calculated to be 129.026 kilograms. The applicant's DNA was found on the exterior driver's side door handle of the van, and on a polo shirt and work glove located inside the van. The applicant's DNA was not located on any of the plastic bags containing the drugs. The material about the quantity of drugs found during this search was objected to. Her Honour admitted the material.

Sentence Proceedings in District Court

1. In the District Court proceedings, the Crown tendered a Summary of Facts of 18 pages. There was an objection to paragraphs 10 and 12 of the Summary because, so the sentencing Judge was informed by senior counsel for the applicant, those paragraphs referred to a volume of drug which was not germane to the offence on the indictment to which the applicant pleaded guilty. As well, he submitted that it was not relevant to the overall nature of the offending which was to be taken into account. The particular material which was objected to has been summarised in [29] above.
2. In addition, the Crown tendered a past criminal record of the applicant from Belgium, and drew the sentencing Judge's attention to three other sentences involving the other individuals who had been involved in what the Crown submitted was the same criminal syndicate, of which both the principal offence and the schedule offence were a part.
3. The applicant's senior counsel tendered a report of Dr Olav Nielssen, dated 23 November 2011, that is to say, over two years prior to the sentencing hearing, some material reflecting the applicant's progress whilst in custody, a letter from the applicant and some testimonials. As well, documentary evidence was tendered that established that the applicant's parents, who were resident in Europe, were elderly, unwell and unable to travel to Australia. No oral evidence was called.
4. The report of Dr Nielssen, which was not subjected to any cross-examination by the prosecutor, stated that the applicant had told him that during the years he lived in Australia, namely since about 2003, he had participated in long-term psychological therapy to help address feelings of anger which he had towards his father arising out of his upbringing as a young child, and aspects of his own behaviour also arising out of his early life experiences. The applicant told Dr Nielssen he had been seeing a psychotherapist at a health clinic in Sydney at weekly intervals for a period of about four years. There was no evidence before the Court from that psychotherapist.
5. Dr Nielssen recorded that the applicant had suffered some periods of depression and had been prescribed anti-depressant medication in the past, but that he had not taken it regularly. In terms of his personal history, the applicant told Dr Nielssen that his mother was a Belgium national, that his father came from one of the mountainous regions of Turkey from a farming family and was a man of little formal education. The applicant told Dr Nielssen that he left school early, had worked as a painter, driving forklift trucks and as a builder's labourer, and that he was always employed prior to coming to Australia. The applicant was multilingual, and apparently had not undergone any further education after leaving school.
6. Dr Nielssen undertook a mental state examination and expressed the view that the applicant did not meet any of the accepted criteria for the diagnosis of any psychiatric disorder. He noted that there had been no history of developmental delay, clinically significant intellectual impairment or symptoms of psychotic illness or severe depression.
7. The case notes from the Department of Corrective Services, noted that the applicant had generally been well behaved, in regular employment and generally speaking, was an inmate about whom there was little, if any, criticism.
8. The letter which the applicant wrote to the sentencing Judge was not supported by any sworn evidence. It expressed feelings of remorse and regret "… about my stupid and irresponsible behaviour". He told the sentencing Judge that his behaviour in committing the crime "… represented poor judgment and ignorance", and that he was "… very regretful and deeply ashamed for what happened". He expressed his determination to "turn his life around" and to attempt to ensure that his future was a good one.
9. Senior counsel for the applicant submitted to the sentencing Judge in comparison with one of the other relevant individuals, Mr Stavrianos, that the applicant's criminality was less serious and by comparison, his offence was of a lesser gravity than the offence committed by Mr Stavrianos.
10. The applicant's senior counsel justified that submission by pointing to the fact that Mr Stavrianos was in communication with individuals overseas in respect of the quantity of drugs, including undertaking some negotiation. Mr Stavrianos was arranging for the delivery of the drugs to be done by others and that that combination produced a "signal difference" in the gravity of the offence to which the applicant was pleading guilty. It was put this way by senior counsel for the applicant: "In our submission, those reasons more than suffice to produce a signal difference between the gravity of the offence seen from a point of view of the involvement in the overall evil of illegal distribution of prohibited substances as well as what might be called a difference in what might be called the hierarchical question. I wouldn't wish to be understood as making the hierarchy submission to the forefront of the differences between Mr Stavrianos and my client, but there is a difference …"
11. Senior counsel for the applicant agreed in submission that there was a materially greater involvement in the drug handling aspect of his client's offence, than with respect to that of Mr Bryce, who was one of the other individuals whose sentence was before her Honour.
12. As senior counsel for the applicant accepted, there was some difference in the subjective cases for each of Mr Stavrianos and the applicant but, ultimately, senior counsel submitted that such differences were not so marked as to result in any significant difference in the sentence between Mr Stavrianos and the applicant.
13. Counsel for the applicant also submitted that, having regard to the timing and negotiations preceding the entry of the plea of guilty, his client was entitled to the maximum discount, namely, 25% on any sentence which he would otherwise have received. The Crown contended that 20% was appropriate.
14. It does seem, although this is not entirely clear, that the Crown, having submitted to the sentencing Judge that the objective seriousness of the offending was above the mid-range, and that categorisation was in contest, that the applicant must have contended that the offending was below the mid-range.

Applicant's Subjective Features

1. The applicant was born on 29 June 1968, and was accordingly 42 years old at the time of the offence.
2. He had no previous criminal history in Australia, although he had a previous criminal history in Europe.
3. When he was 21, he was convicted by a Belgian court of theft in company accompanied by violence or the threat of violence. He was also convicted of a number of other counts of theft, handling stolen goods, counterfeiting and using counterfeit documents, and giving false testimony. For these offences he was sentenced to 3 years imprisonment with a suspended prison sentence of 5 years in addition. At the same time, he was convicted of two counts of possession of illicit drugs for which he received a fine and a suspended prison sentence.
4. In July 1992, a French court sitting in Paris convicted him of importing, trading, transporting and selling illicit drugs and participating in the smuggling of prohibited goods. For these offences he was sentenced to a term of imprisonment of 3 years and a permanent restraining order was made prohibiting him from entering French territory.
5. In 1994, he was convicted in a court in Ghent in Belgium of possession, purchase and importation of psychotropic substances. He was given a prison sentence of 1 year and a further suspended prison sentence.
6. In 1995 he was convicted of selling illicit drugs and being in possession of them. For this offence he was sentenced to 4 years imprisonment.
7. It can be seen that between the time he turned 21 in 1984, and about the turn of the century when he was 32, he had spent about 10 years in prison.
8. As indicated earlier, the applicant came to Australia in 2003, and was involved in a number of romantic relationships with different women. He was the father of two children at the time of his sentencing. The inability of his elderly parents to travel to Australia meant that his capacity to stay in touch with them was severely restricted, if not completely removed.

Remarks on Sentence

1. The sentencing Judge commenced by summarising the Statement of Facts and the nature of the offending. She carefully noted the conduct of the applicant which directly related to the principal offence.
2. She also noted as a matter of general context that the drugs had been brought into Australia by a sophisticated syndicate from the Netherlands. The principal offence was a part of that syndicate's operations.
3. Having noted all of the facts and, in particular, the facts surrounding the principal offence, her Honour went on to note that the particular role of the applicant, and the weight of the drugs were both factors relevant to the sentencing exercise. Her Honour noted that the weight of the drugs referrable to the principal offence was: "… more than 53 times the threshold for the commercial quantity for methamphetamine which is 0.75 kilos."
4. This was a reference to the 40.45 kg of pure methamphetamine.
5. Her Honour then analysed the applicant's role. Of that, she said: "As to the offender's role, I am satisfied beyond reasonable doubt that he played a very significant part in this criminal enterprise. I base that finding on these matters: that he was the person who had access to, and obtained the drugs from, the Mercedes van which was kept at Clovelly Road premises. Those drugs were then handed over to Mr Stavrianos; he was with Mr Van Tatenhove, who was further up the hierarchy, on five occasions between 29 January and 22 February 2011. As previously outlined in the facts, the vehicle, that is the Mercedes van, contained 164.7 kilos of powder which was later analysed and calculated to be 129 kilos pure. It is highly significant in my view that the offender was trusted to have access to this store or cache of drugs."
6. Her Honour, having drawn attention to those matters, then expressed this conclusion, but with a clear, and with respect, an entirely correct, caveat: "I keep firmly in mind that he is to be sentenced for trafficking in 40 kilos of pure methamphetamine, but in assessing his role, his access demonstrates a greater involvement and level of trust and responsibility than either of the two co-offenders who have been sentenced."
7. Her Honour then dealt with the schedule offence and described the facts surrounding the applicant's participation in that offence. Her Honour noted that the quantity of drugs involved with that offence was 10.94 kg, which was more than 14 times the commercial quantity.
8. Her Honour noted that Mr Segaar, who was the principal offender in the schedule offence, had been found guilty by a jury and had been sentenced by the Supreme Court in Western Australia to 18 years imprisonment with a non-parole period of 11 years and 4 months.
9. Her Honour went on to consider the applicant's subjective background, including his criminal history. Her Honour said of this that the applicant's record did not entitle him to leniency, particularly as he had been in prison previously for similar offences.
10. Of the applicant, her Honour concluded: "In summary, the offender is an intelligent man. There is nothing in his subjective case which explains his willingness to engage in the illegal drug trade, yet again, in a foreign country. I note that the offender in his letter attributes his behaviour to 'poor judgment and ignorance'. However, I find that his motivation must have been greed, given the enormous monetary value of such a large quantity of methamphetamine."
11. Her Honour went on to express the view that she could not accept the factual account given by the applicant to Dr Nielssen, including in particular, that her Honour did not accept that the applicant was only paid a sum of $15,000 for his part in the trafficking offence. She found that the applicant's financial reward "… must have been a significant sum".
12. Her Honour noted the terms of imprisonment that had been imposed on others who had played a role in the principal offence. These were Mr Bryce, who was sentenced to 7 years 6 months with a non-parole period of 4 years, and Mr Stavrianos who was sentenced to 12 years imprisonment with a non-parole period of 7 years 6 months.
13. Her Honour then turned to consider the applicant's role by comparison with Mr Stavrianos in response to the submissions which senior counsel for the applicant had made. On that question, her Honour said: "Senior counsel for the offender submitted that this offender's role was less than that of Mr Stavrianos. I do not accept that that is the case. On my findings of facts, the offender was significantly more involved than Mr Stavrianos and his sentence must reflect this. In addition, there is the matter on the schedule, with his involvement in another serious drug offence, although his involvement is clearly at a lower level than for the count on the indictment."
14. Her Honour noted that it was appropriate to allow a discount of 25% to reflect the plea of guilty.

Grounds of Appeal

1. The applicant relies upon three grounds of appeal. They are as follows: 1. The sentencing Judge erred in taking into account that the applicant had access to a store or cache of drugs in the amount of 164.7 kg. 2. The sentencing Judge erred in determining in relation to the count on the Indictment, that the applicant was significantly more involved than the offender Stavrianos. 3. The sentencing Judge erred in her assessment of the seriousness of the role of the applicant in the offence.

Ground 1: Store of Drugs

1. As I have earlier described, the Mercedes van was searched on 21 April 2011, which was the day after the applicant was arrested. At that time drugs were discovered in it which had a combined weight of 164.7 kg and a pure weight of 129 kg. This search was conducted a little over one month after the principal offence occurred.
2. The applicant visited the vehicle for a short time, about one minute, on 18 April 2011. Prior to that the applicant was last seen in the garage on 6 April 2011, when he left a large sports bag at the entrance to the garage.
3. The search of the van revealed that the bags in which the drugs were contained were generally 1 kg in weight, and those bags were then found within a number of larger sports bags. The applicant's DNA was found on the exterior handle of the sliding door on the driver's side of the van, on a shirt and a work glove inside the van. Other DNA profiles were also found on the shirt and gloves. The applicant's DNA was not located on any of the plastic bags in which the drugs were contained.
4. Before the sentencing Judge, senior counsel for the applicant accepted that the quantity of drugs found in the van in April 2014 may be relevant in considering the: "… overall criminality of the overall project in which all sorts of people are involved …"
5. However, he submitted that the quantity did not reflect upon the applicant's criminality and could not be relevantly taken into account in the sentence to be imposed upon him.
6. The applicant submitted on appeal that the sentencing Judge erred in determining that the applicant was trusted to have access to the store or cache of drugs in the van. It was submitted that implicit in that finding was both the actual quantity of the drug found, and that the applicant knew of the quantity of drugs (namely, 164.7 kg of combined weight) present in the van in the garage. It was submitted on appeal that that finding was not open to the sentencing Judge on the evidence. The applicant submitted: "Put simply, the drugs could have been put in that garage by someone else without the applicant knowing anything about it."
7. The Summary of Facts which was before the sentencing Judge revealed that the applicant was observed to be in the vicinity of the garage at the Clovelly units in which the van was kept on seven occasions between 1 February 2011 and 18 April 2011. On two of those occasions, he was accompanied by Mr Van Tatenhove who, on any view, was a senior person in the drug importation syndicate. On five of those occasions, the applicant attended without Mr Van Tatenhove, including on one occasion when he was in the company of Mr Segaar. Occupants of the block of apartments saw the applicant alone in the garage on a number of occasions, opening and leaning into the van which was parked there.
8. The garage at the Clovelly units had first been rented in August 2009. The rental had been continued, at least up until April 2011. The facts disclosed that the tenant of the unit who had leased the garage to Mr Van Tatenhove, had entered the garage on a number of occasions to deal with her personal items, and on each occasion had seen the van parked in the garage. At the time the van was searched by the police on 21 April 2011, its registration had expired, and it had flat tyres. It had originally been purchased by Mr Van Tatenhove in December 2008.
9. Clearly, on the basis of those facts, the van had been purchased, the garage had been leased, and the van parked in it for a significant period of time without being moved and in circumstances where the van was used to store drugs. That was apparently the reason why the applicant went there from time to time. There was no other reason suggested for him so to do.
10. Another garage at Kensington had been used by Mr Van Tatenhove and Mr Segaar for their purposes. The applicant was seen in the vicinity of that garage on 20 occasions, with Mr Van Tatenhove, with Mr Segaar, and a number of other unidentified individuals. On occasions the applicant visited that unit block alone. On one occasion, the applicant transported a black and white sports bag from the Kensington garage to the garage at the Clovelly units where the van was parked.
11. On the day of the principal offence, the applicant first attended at the garage in Kensington and then went to the garage where the van was stored. He removed from the van the parcel of drugs which ultimately made its way to Mr Stavrianos.
12. The vehicle which he drove for the purpose of that offence was not his own Golf, which he had driven to and parked near the garage at Kensington. Rather he used a vehicle which was parked near the garage at Kensington and which was in the name of a known alias of Mr Van Tatenhove and which had been purchased by his girlfriend. The applicant returned that Commodore motor vehicle to the garage and left it there.
13. It is also to be noted that the various residential premises and garages used by the drug syndicate were not under constant surveillance by members of the Australian Federal Police.
14. Her Honour's finding about the role which the applicant played in the criminal enterprise was that he played a "very significant part". Principally, that finding was based upon the fact that he had access to, and obtained drugs from, the van which was a place where drugs were stored. However, even if not specifically referred to, such a finding must be taken to have been made by reference to all of the facts before the sentencing Judge.
15. Although her Honour did not articulate this, the facts demonstrated that the van had been in place for a lengthy period of time, was not capable of being driven lawfully on the road, and without some repairs to its tyres, was not capable of being driven at all. Having regard to the number of times the applicant came and went, that he was seen accessing the van, and on the occasion when he committed the principal offence (he removed 50 kg combined weight of drugs from there), it was open to her Honour to find, as she did, that this van was the store or cache for the drugs being distributed by the syndicate to which the applicant had unsupervised and apparently unrestricted access.
16. Her Honour also noted the applicant's contact with Mr Van Tatenhove on a number of occasions prior to this offence. Her Honour did not specifically note, but was entitled to have regard to, the many occasions upon which the applicant had visited the garage premises in Kensington which was one of the premises used by Mr Van Tatenhove for the purposes of this drug importation syndicate.
17. Her Honour concluded, based on the matters to which I have drawn attention, that the applicant had a greater involvement in the drug syndicate than did Mr Stavrianos and Mr Bryce, and that his "level of trust and responsibility", was greater than either of those two.
18. Her Honour's findings about the access of the applicant to the van, its use as a storage place for drugs, and his contact with senior members of the drug syndicate were abundantly justified by the facts.
19. It is correct that her Honour referred to the drugs in the van by reference to the combined weight of 164.7 kg. It also can be accepted that those drugs were found in the van after the applicant's arrest. It can also be accepted that people other than the applicant had access to the van. It was not suggested, and her Honour did not find, that the applicant had put the drugs in the van, nor that he knew they were there in that quantity at the time the van was searched.
20. The weight of those drugs was, of itself, wholly irrelevant to the integers of the principal offence. It was not appropriate, and her Honour expressly noted that she was not engaged in an exercise of sentencing the applicant by reference to the weight of the drugs which were found in the van after his arrest.
21. The reference set out in [56] as to the quantity of the drugs found in the van was an unnecessary one, and when looked at in the calm reflection of an appellate court, an unfortunate one. But the resolution of this ground of the appeal is not to be determined by any failure of grammatical, or proper expression by a sentencing Judge.
22. It is not apparent to me, from a reading of the whole of the sentencing remarks, that the sentencing Judge did anything more than use the weight of the drugs found in the van after the applicant's arrest, as a way of identifying the van to which earlier reference had been made.
23. The inclusion of any reference to the quantity of drugs found occurred on two occasions in the Remarks on Sentence. The first was when her Honour was giving a general description of the nature of the syndicate and the police investigation and its results. The second reference is that to which I have referred in [56] above. To the extent that her initial reference to the drugs was made, it was nothing more than, and ought be read only as being, a reference to the general background of the drug syndicate under the aegis of which the applicant's principal offence fell.
24. Her Honour was careful to note that she was not sentencing the applicant for the drugs that were found in the van, but was sentencing him for the role which he played in the delivery of a lesser, but nevertheless very large, quantity of drugs.
25. I can detect no error of the kind for which the applicant contends, and I would not be prepared to uphold this ground.

Ground 2: Relative Involvement

1. The applicant submits that the sentencing Judge erred in determining that the applicant was significantly more involved than Mr Stavrianos. This finding of the sentencing Judge followed, and gave content to, her rejection of a submission of senior counsel for the applicant that his role was less than that of Mr Stavrianos.
2. Mr Stavrianos was the subject of a sentence, pronounced in the District Court by Hock DCJ on 27 April 2012.
3. In her Remarks on Sentence with respect to Mr Stavrianos, her Honour noted in addition to taking delivery of the drugs from the applicant, that he had also undertaken, by email, in the period from 2 February 2011 to 15 March 2011, negotiations over the price and the delivery of the drugs.
4. Her Honour concluded with respect to Mr Stavrianos, this: "There is no evidence as to what remuneration the offender stood to gain from his involvement. However, given his role and value of the drugs, it must have been a significant figure. He was involved to a significant level in the hierarchy of this criminal offence. While the Crown conceded he was not 'a' or 'the' principal, he was not at a low level either, which Mr Bryce was. Not only was the offender communicating with others overseas in respect of this quantity of drugs, he was also arranging for the delivery to be done by others, no doubt in an attempt to distance himself."
5. It is also relevant to note that the subjective case with respect to Mr Stavrianos was quite different from that with respect to the applicant. In particular, her Honour found that Mr Stavrianos had good prospects of rehabilitation and was unlikely to reoffend. She found that he was an otherwise law abiding man who had engaged in, surprisingly to those who knew him, the particular criminal activity.
6. There were differences in the facts tendered with respect to the role played by the applicant on the one hand and Mr Stavrianos on the other with respect to this particular drug transaction. Her Honour was called upon to make an evaluative conclusion based upon the facts which were tendered before her as to the role which the applicant played, and because of the submission which was made to her, his position relative to that of Mr Stavrianos. As is clear, her Honour concluded that his role was more significant than that of Mr Stavrianos.
7. Having regard to the factual differences proved between them, such a finding was open to her Honour. It is only reviewable in this Court on the principles set out in House v R [1936] HCA 40; (1936) 55 CLR 499: see Mulato v R [2006] NSWCCA 282 at [36] per Spigelman CJ, at [46] per Simpson J; R v KB [2011] NSWCCA 190 at [53] per Bathurst CJ.
8. The features of the applicant's offending which were before her Honour, namely, the extent of his contact with other members of the syndicate, his frequent and unsupervised access to the van from which the drugs were removed for the purpose of their supply to Mr Stavrianos, and his extensive visits to the premises at Kensington, which was an address used by the drug syndicate, were all sufficient as a proper basis for the finding which her Honour made. These factual features were absent from the offending of Mr Stavrianos.
9. I can detect no error of a kind sufficient to satisfy these principles. I am not persuaded to uphold Ground 2.

Ground 3: Assessment of Seriousness

1. This ground of appeal asserts that the sentencing Judge "… erred in her assessment of the seriousness of the role of the applicant in the offence".
2. As there is a good deal of overlap between this ground and the previous two grounds, it is appropriate to concentrate on the features of the applicant's submissions with respect to this ground which are not otherwise dealt with specifically.
3. In the consideration of this ground, the applicant drew attention to the erroneous approach of the sentencing Judge in: 1. connecting the activities of the applicant to the quantity of drugs found in the van (164.5 kg); 2. taking into consideration the overall activities of the syndicate of which the applicant's offence was a part; 3. wrongly attributing to the applicant greater criminality than Mr Stavrianos.
4. These are submissions dealt with under Grounds 1 and 2. In addition to these submissions, the following arguments were raised. First, it was submitted that her Honour was in error in rejecting the statement by the applicant given to Dr Nielssen, that he was only offered $15,000 for his part in making the delivery. The applicant's submissions asserted that there "… was no basis to reject that the reward was in that order". This is misguided and must be rejected. The Crown did not attempt to prove what the applicant was paid. It submitted that having regard to the quantity of pure drugs involved (40.45 kg), the reward would be substantial. This was an entirely reasonable inference to urge on the Judge.
5. In considering this submission, it should be noted that this Court has previously said that statements made by an offender by way of history to an expert, such as Dr Nielssen, which statements are not supported by the offender giving sworn evidence and subjecting themselves to cross-examination, are of very little, if any, weight: R v Qutami [2001] NSWCCA 353 at [58] per Smart AJ (Spigelman CJ agreeing).
6. The practice of offenders relying on hearsay statements for findings of fact in their favour is not uncommon, notwithstanding this Court's remarks. It is not to be encouraged.
7. It was open to her Honour to reject the statement. The quantity of drugs which had a value in the millions, itself provided a basis for her Honour to reject that account, which in any event was of very little weight.
8. Secondly, it was submitted that the sentencing Judge had failed to focus on what the applicant actually did in the principal offence. It was submitted that his criminality did not depend on whether others in the enterprise trusted him or gave him responsibility to do various things unsupervised. His criminality, it was submitted, did not turn on whether he was trusted to have access to the store of drugs. Shortly put, it was submitted that the only criminality the subject of the charge to which he pleaded guilty, was being a courier of the drugs for a relatively short period of time, and in a confined geographic region.
9. That this is what he did cannot be gainsaid. But to concentrate only on these features would be to disregard what the factual context of the crime was.
10. What was involved was the importation and the sale of large quantities of drugs by an organised and sophisticated syndicate. The applicant's offence took place within this context. His was not a casual interaction with the syndicate. He was not simply a courier, who was without knowledge of the context. The agreed facts showed that he had a much greater interaction with the syndicate than a mere courier would have.
11. As well, in sentencing the applicant for the principal offence, the sentencing Judge was required to take into account the schedule offence which involved another significant drug trafficking transaction in which the appellant played a significant role.
12. Of course, he was not being sentenced separately for the schedule offence, it was merely being taken into account, or more generally for the activities of the syndicate. The sentencing Judge correctly, in my opinion, put the offence in its context, and sentenced the applicant according to principle by having regard to the seriousness of his objective criminality, to his subjective case, and to the schedule offence.
13. I would not propose to uphold Ground 3.

Summary

1. I am not persuaded that any of the grounds alleging specific errors have been made out. Nor have I been persuaded, and it was not submitted, that the sentence was one which was not lawfully open to the sentencing Judge.

Conclusion

1. The applicant needs leave to appeal. The sentence is a lengthy one. I would propose that leave to appeal be granted, but that the appeal ought be dismissed.
2. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

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