Kardoulias and Andres v Regina

(d) Mr Kardoulias may have made all the important decisions with Mr Andres;

(e) Mr Andres gave directions to both Mr Mas Rivadavia and Mr El-Akkaoui as to what was happening and as to what they were to do; and

(f) Mr Andres' role in the conspiracy was higher than that of Mr Mas Rivadavia and Mr El-Akkaoui and closer, but not equal, to that of Mr Kardoulias. 72 With respect to the ecstasy conspiracy, Mr Andres contends that Nield DCJ erred in finding that:

(a) it was "clear" that Mr Andres and Mr Cesan were the "main participants" in the conspiracy;

(b) Mr Mas Rivadavia was Mr Andres' "lieutenant" ; and

(c) although the evidence did not reveal how the conspiracy came about or who devised the plan, in view of: (i) the similarities between the conspiracies (of which Mr Andres was a common member), and

(ii) when the conspiracy started, Mr Andres was the "instigator" of the ecstasy conspiracy. 73 Further, it was submitted that Nield DCJ erred in application of the parity principle as between Mr Andres and Iden Chan. 74 It was further contended that Nield DCJ failed to properly apply the totality principle in accumulating the two sentences in the manner in which he did, with the result that the effective head sentence and effective non-parole period imposed were manifestly excessive. 75 In my view, there was ample evidence to support the findings of fact, to the criminal standard, made by Nield DCJ with respect to the role of Mr Andres in the heroin conspiracy and the ecstasy conspiracy. It was open to his Honour to find that Mr Andres was a principal with respect to both conspiracies. The evidence revealed that Mr Andres and Mr Kardoulias played major organisational roles in the heroin conspiracy. They were significantly more culpable than Mr Mas Rivadavia and Mr El-Akkaoui. If anything, the findings of Nield DCJ concerning the heroin conspiracy unduly favoured Mr Andres in that they left open the view that Mr Kardoulias may have stood above him in the hierarchy. I have concluded earlier that Mr Andres and Mr Kardoulias ought be regarded as occupying the same level of involvement in the conspiracy. 76 With respect to the ecstasy conspiracy, the evidence revealed that Mr Andres played a major organisational role. The findings of Nield DCJ concerning the role of Mr Andres in the ecstasy conspiracy were both open and appropriate. 77 I do not detect any error in the approach of Nield DCJ to the question of parity between Mr Andres and Mr Chan. In my view, his Honour's conclusions with respect to that issue were correct. 78 Nor do I consider that any error, adverse to Mr Andres, has been demonstrated in the application by Nield DCJ of the totality principle in sentencing him for the two conspiracies. 79 In my view, the sentences imposed upon Mr Andres for the two conspiracies were not manifestly excessive. The real question in this case is whether the sentences were manifestly inadequate so as to warrant the upholding of the Crown appeals. It is to that question which I now turn.

Principles Applicable to a Crown Appeal 80 In the course of delivering judgment in Mas Rivadavia, Wood CJ at CL (Adams J and Smart AJ agreeing) summarised the principles applicable to a Crown appeal upon sentence at 10-11 (paragraphs 63-64): "In order to make the appeal good, it is necessary for the Crown to show that the sentences were so lenient as to demonstrate latent error, that is, to bring the appeal within the exceptional category of case that was referred to by Gaudron and Gummow JJ in Dinsdale v The Queen (2000) 202 CLR 321 at para 22; and by Spigelman CJ in R v Baker [2000] NSWCCA 85 at para 19; see also R v Tait and Bartley (1979) 24 ALR 473 at 475-476, and Everett v The Queen (1994) 181 CLR 295 at 299.

The constraints on Crown appeals, and the discretion which is inherent in their disposition, were summarised in my judgment in R v Wall [2002] NSWCCA 42 at para 70: '(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons': per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." 81 The present Crown appeals fall to be determined in accordance with these principles.

82 The Crown submissions concerning Mr Kardoulias before this Court pick up two arguments which were advanced in the Crown appeal concerning Mr Mas Rivadavia and others. First, the Crown drew Nield DCJ's attention to the judgment of this Court in R v Wong (1999) 48 NSWLR 340 and submitted that the decision provided useful guidance as to an appropriate starting point, subject to qualifications - that the range of six to nine years for mid-level trafficable offences had been expressed as applicable to a courier or person low in the hierarchy (at 366, paragraph 142) and that Mr Kardoulias was significantly higher up the hierarchy. It was submitted that the Wong guideline range had assumed that an adjustment had been made reducing the sentence, by reason of the absence in New South Wales of a remission system, in accordance with s.16G Crimes Act 1914 (Cth), which provision was no longer applicable since its repeal on and from 16 January 2003. 83 As Wood CJ at CL observed in Mas Rivadavia at 10 (paragraph 60), Nield DCJ did not refer to the decision in Wong in his remarks on sentence or to the submissions of the Crown in relation to it. 84 The Crown submits, in the present case, that Nield DCJ made two specific errors which resulted in the imposition of a sentence which is manifestly inadequate, namely:

(a) having concluded that Mr Kardoulias' role was higher than that of a courier or person low in the hierarchy, the sentence imposed did not reflect that role; and

(b) his Honour failed to have regard to the fact that s.16G had been repealed. 85 The Crown does not challenge the findings of fact made by Nield DCJ concerning Mr Kardoulias. The Crown contends, however, that, in the light of those findings, the sentence imposed upon Mr Kardoulias was manifestly inadequate in respect of a person who:

(a) could not have his sentence discounted to reflect a plea of guilty;

(c) was found, in that role, to have been responsible for the recruitment of others and to have given directions in furtherance of the conspiracy;

(d) was found to have been responsible for devising a plan to import a significant quantity of heroin into Australia, which plan included the following features designed to disguise the true nature of the activity being undertaken: (i) the adoption of assumed names,

(iii) the use of public telephones and/or mobile telephones (leased in assumed names) for communication, and (iv) the convening of meetings in public places late at night,

(e) had previous offences involving narcotics including the supply of heroin. 86 The Crown did not rely upon sentencing statistics arising from unrelated cases in support of the submission that the sentence imposed on Mr Kardoulias was manifestly inadequate. In essence, the Crown submitted that the Court could have regard to the sentencing guidelines contained in Wong, to the sentences imposed on co-offenders by the Court of Criminal Appeal in Mas Rivadavia and to the significant role of Mr Kardoulias in the conspiracy in concluding that the sentence imposed upon him was manifestly inadequate. 87 It was the Crown submission before Nield DCJ that the range in Wong assumed that an adjustment had been made having regard to the provisions of s.16G which then operated to provide a "discount" (generally one-third) in recognition of the fact that remissions were not available in New South Wales. The Crown submitted in the District Court that, with the repeal of s.16G in January 2003, there must necessarily be an increment applied to the Wong guideline range. 88 The Crown relies upon the fact that during the sentencing proceedings concerning Mr El-Akkaoui on 4 December 2003, Nield DCJ said (Transcript, page 33.24ff): "It is a matter of common sense that the cases referred to by the Court in the Court of Criminal Appeal in Wong and Leong (sic) were cases determined when s.16G was in force, and those cases, or the sentences in those cases, were reduced roughly by a third from what it would have been otherwise. So as a matter of common sense even taking the cases referred to by the Court of Criminal Appeal in Wong and Leong as a guideline, they must be increased to take into account the effect of s.16G being applied. 89 In the course of the continuing discussion with Counsel, his Honour then observed (Transcript, page 33.49ff): "But if one of the cases referred to by the Court of Criminal Appeal in Wong and Leong (sic) was ten years, we know that that was originally fifteen years head sentence because it was reduced because of s.16G to ten years, so it would be artificial to take the cases referred to by the Court of Criminal Appeal in Wong and Leong (sic) without recognising that those sentences were reduced because of the effect of s.16G." 90 Finally, his Honour observed (Transcript, page 34.15ff): "I would imagine without having read all of those decisions referred to by the Court of Criminal Appeal that the sentencing judge said that were it not for s.16G I would sentence this offender to a head sentence of fifteen years, but because of s.16G I reduce that sentence to a head sentence of 10 years. That is the way it worked at that time." 91 In the course of his sentencing remarks on 11 February 2004, Nield DCJ did not refer to Wong or to the repeal of s.16G. The Crown submits that this Court should conclude that his Honour did not have regard to the repeal of s.16G in imposing sentence upon Mr Kardoulias. 92 It should be kept in mind that normally this Court will not find an error of principle from interchanges between the Bench and Counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision: R v Kain [2004] NSWCCA 143 at paragraph 56; R v A [2004] NSWCCA 292 at paragraph 12; R v Pham [2005] NSWCCA 94 at paragraph 11. Here, of course, it is the reverse argument which is being advanced. The Crown submits that his Honour stated the law correctly during his exchanges with Counsel on 4 December 2003, but that, as a result of his silence on the question during his remarks on sentence, his Honour failed to apply this principle in imposing sentence on Mr Kardoulias on 11 February 2004. 93 In approaching this submission, the Court should not conclude lightly that such a factor was overlooked on sentence by an experienced District Court Judge: R v Majors (1991) 27 NSWLR 264 at 268; R v Salameh (1991) 55 A Crim R 384 at 394. 94 Since Mr Kardoulias was sentenced on 11 February 2004, a number of decisions of this Court have resolved the proper approach to sentence following the repeal of s.16G: R v Studenikin (2004) 60 NSWLR 1; R v Kevenaar (2004) 148 A Crim R 155; R v Dujeu (2004) 146 A Crim R 121. Having referred to these decisions, Wood CJ at CL said in Mas Rivadavia at 16 (paragraphs 84-86): "To the extent that regard is had to R v Wong , in the indicative way for which guideline sentences are intended, or to the extent that reference is made to pre s-16G and 19AG sentencing patterns, or to those which will now emerge following the repeal of those sections, it is important for Judges to bear in mind:

(a) That R v Wong was decided in a context where s 16G required an adjustment to be made, although that adjustment was not one that was mathematically and unequivocally linked to a discount of 30%, since there remained an area for sentencing discretion; and

(b) That it is no longer permissible to make an allowance for the s 16G factor;

It is desirable for the judges, when sentencing, to make it clear that these circumstances have been taken into account, if reference is made to earlier sentencing patterns, or to R v Wong .

Sentencing must remain an exercise for intuitive synthesis, in which any relevant guideline judgment and sentencing patterns are recognised as important parts of the material available, to be considered alongside any other relevant sentencing principles, the objective and subjective considerations of the instant case, and most significantly, the maximum sentence prescribed for the offence, since it is that which indicates the legislative intentions as to its seriousness." 95 The Court in Mas Rivadavia did not find error in Nield DCJ's remarks on sentence solely by reference to his Honour's failure to mention Wong or the repeal of s.16G. However, the Court concluded that his Honour had fallen into error in sentencing Mr Mas Rivadavia, Mr El-Akkaoui and Mr Aksu in the following respect at 16-17 (paragraph 87): "By reference to the pre existing sentencing pattern, and the range suggested in R v Wong for cases which were subject to the s 16G discount, it does appear to me that the sentences were lenient. Even allowing for the favourable subjective circumstances of these three offenders, insufficient weight seems to have been given to the punitive, retributive, and deterrent elements that should have been reflected, having regard to the objective criminality of these offenders. This was a well planned operation, that had been assessed as being capable of exploiting potential loopholes in the FedEx system. The case was one calling, in particular, for a very considerable deterrent element for the well recognised reasons analysed in the decisions such as R v Wong and Ng (1988) 39 A Crim R 1; and R v Saxon (1996) 86 A Crim R 353 as well as for a significant degree of punishment." 96 Prima facie, the successful Crown appeals in Mas Rivadavia, and the increase in sentence of Mr Mas Rivadavia and Mr El-Akkaoui, raises a question concerning the adequacy of sentences imposed by Nield DCJ on co-offenders in the heroin conspiracy. 97 In supplementary written submissions filed by leave of the Court following the hearing, Mr Boulten SC referred to sentences imposed upon Mr Andres' co-offenders in the ecstasy conspiracy. He did so as part of a submission that the sentence imposed upon Mr Kardoulias was not manifestly inadequate. On 18 March 2005, Dodd DCJ sentenced Rafael Cesan and Mr Mas Rivadavia in relation to their complicity in the ecstasy conspiracy. Both of these offenders had pleaded not guilty to that charge which involved a commercial quantity of ecstasy. They were found guilty by a jury on 28 June 2004. Dodd DCJ sentenced Mr Cesan to 13 years and six months' imprisonment with a non-parole period of nine years. His Honour sentenced Mr Mas Rivadavia to a term of imprisonment of 11 years to date from 8 April 2006 with a new non-parole period of 10 years to commence on 8 April 2002. Neither the Crown nor the convicted persons have appealed to this Court with respect to the sentences imposed by Dodd DCJ. 98 Accordingly, Mr Boulten SC notes that Mr Mas Rivadavia's total effective sentence with respect to both the heroin conspiracy and the ecstasy comprised imprisonment for 15 years with an effective non-parole period of 10 years. Dodd DCJ accepted a Crown submission that Mr Cesan played a role in the ecstasy conspiracy that was "more significant than that of Mas Rivadavia and was equal to the role played by Andres" (remarks on sentence, 18 March 2005, page 4). Dodd DCJ found that Mr Mas Rivadavia was "of less culpability than either Cesan or Andres but that [his] role nevertheless remained a significant one". 99 Mr Boulten SC emphasises that the maximum penalty that applied to the ecstasy conspiracy was life imprisonment whilst the maximum penalty for the heroin conspiracy (to which Mr Kardoulias was a party) was imprisonment for 25 years. 100 Mr Boulten SC submits that Mr Kardoulias' sentence bears a remarkable similarity to Mr Cesan's sentence. It is contended that Mr Kardoulias played a role similar to, but not more culpable than, that played by Mr Cesan. The offence for which Mr Kardoulias fell to be sentenced related only to a trafficable quantity of heroin, whereas Mr Cesan's offence related to a commercial quantity of ecstasy. Yet, Mr Kardoulias' sentence is only 18 months less than the total effective sentence of 15 years imposed on Mr Mas Rivadavia in relation to his complicity in the two separate conspiracies. 101 In these circumstances, Mr Boulten SC submits that it is not open to the Crown to contend that the sentence of 13 years and six months imposed upon Mr Kardoulias was manifestly inadequate. 102 In response to these submissions, the Crown notes that the remarks on sentence of Dodd DCJ obviously do not reflect the entirety of the evidence which was adduced by the Crown at trial. His Honour found that Mr Cesan had played a substantial role in the ecstasy conspiracy. Importantly however, such role had been carried out in association with, and with the assistance of, Mr Andres. Dodd DCJ drew a clear distinction between the roles of Mr Cesan and Mr Andres on the one hand, and Mr Mas Rivadavia on the other. 103 More fundamentally, however, the Crown submitted that the sentences imposed by Dodd DCJ upon other persons, arising out of a quite separate and distinct conspiracy involving a different narcotic, are of a limited relevance in determining Mr Kardoulias' appeal. The Crown submits, in any event, that the roles played by Mr Kardoulias in one conspiracy and Mr Cesan in a different conspiracy were not comparable. The evidence in the present case established, the Crown submits, that (unlike Mr Cesan), Mr Kardoulias carried out his particular role in the heroin conspiracy essentially on his own. To the extent that he was assisted by others in performing that role, such assistance took the form of those others doing no more than acting in accordance with the various directions that Mr Kardoulias had given to them. Moreover, there was no evidence that Mr Cesan took the elaborate steps which were taken by Mr Kardoulias to deliberately distance himself from co-conspirators in order to avoid detection. The Crown submitted that it was also significant that Mr Cesan's activities extended over a period of some two months, as opposed to eight months in the case of Mr Kardoulias and the heroin conspiracy. 104 The Crown submits that it is apparent that it was factors such as these which led Nield DCJ to conclude that Mr Kardoulias was "a principal, if not the principal" in the heroin conspiracy. Whilst Dodd DCJ found that the role of Mr Cesan in the ecstasy conspiracy was "significant", his Honour certainly did not make any finding that he played a role approaching that of a "principal" in the sense that such term was used in sentencing Mr Kardoulias. The Crown submits that such matters served to demonstrate that the culpability of Mr Kardoulias' conduct far exceeded that of Mr Cesan. In these circumstances, the two roles are clearly distinguishable. The Crown submits that the sentence imposed upon Mr Cesan does not lead to a conclusion that the Crown appeal involving Mr Kardoulias should be dismissed. 105 Mr Boulten SC relied upon Postiglione v The Queen [1995-1996] 189 CLR 295 at 301 in support of the proposition that equal justice requires that like should be treated alike. If there are relevant differences, due allowance should be made for them. 106 It is open to Mr Boulten SC to rely upon the principle of parity with respect to the sentencing of Mr Kardoulias and Mr Andres for the heroin conspiracy in which they were co-offenders. Of course, the parity principle applies to the sentences of co-offenders: Lowe v The Queen (1984) 154 CLR 606; Jones v The Queen (1993) 67 ALJR 376. However, the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders who are not co-offenders simply because the two offenders may have similar characteristics and may have committed similar crimes: R v Morgan (1993) 70 A Crim R 368 at 371; R v F (2002) 132 A Crim R 308 at 315; R v George (2004) 149 A Crim R 38 at 47; R v Araya [2005] NSWCCA 283 at paragraphs 67ff. I do not consider that it is open to Mr Kardoulias to rely upon the sentences imposed upon Mr Cesan and Mr Mas Rivadavia for the ecstasy conspiracy in support of an argument concerning his own sentence for the heroin conspiracy. 107 In my opinion, the submissions which Mr Boulten SC advances by reference to sentences imposed upon Mr Cesan and Mr Mas Rivadavia for the ecstasy conspiracy do not assist either Mr Kardoulias or the Crown with respect to the appeals presently before this Court. 108 In Mas Rivadavia, the Court did not find a specific error on the part of Nield DCJ resulting from his Honour's failure to refer to Wong and to the repeal of s.16G. Rather, the Court approached the matter upon the basis that, while patent error was not shown, the sentences imposed upon Mr Mas Rivadavia and Mr El-Akkaoui were manifestly lenient and lay outside the proper range for offences of the objective criminality that was involved: Mas Rivadavia at 19 (paragraph 101). 109 In my view, a similar approach is appropriate with respect to the Crown appeal concerning Mr Kardoulias arising from the judgment of Nield DCJ on 11 February 2004, being the same judgment as was considered by this Court in Mas Rivadavia. I do not consider that patent error is demonstrated in his Honour's failure to refer to Wong and the repeal of s.16G. Rather, the question is whether the sentence imposed upon Mr Kardoulias was manifestly inadequate and was outside the proper range for offences of the objective criminality that was involved. 110 I am not persuaded that the sentence imposed upon Mr Kardoulias lay outside the proper range of sentence for the offence and the offender. The sentence was significantly greater than those imposed upon Mr Mas Rivadavia and Mr El-Akkaoui even after they had been resentenced by the Court of Criminal Appeal. The differential between the sentences makes due allowance for the different levels of criminality and other points of distinction between the cases. I propose that the Crown appeal against sentence concerning Mr Kardoulias ought be dismissed.

Crown Appeal Concerning Mr Andres 111 The Crown submitted that the sentences imposed by Nield DCJ with respect to Mr Andres for each of the conspiracies was manifestly inadequate. In particular, it was submitted that:

(a) having concluded that the role of Mr Andres was a senior one in each conspiracy, his Honour imposed sentences which did not reflect that finding; and

(b) having made reference to the decision of this Court in Studenikin , his Honour imposed sentences which failed to reflect the repeal of s.16G. 112 The Crown accepted the findings made by Nield DCJ concerning the role of Mr Andres in both conspiracies. However, it was submitted that the sentences were manifestly inadequate particularly having regard to the findings of Nield DCJ:

(a) that Mr Andres was (along with Mr Kardoulias) the "main participant" in the heroin conspiracy, and (along with Mr Cesan) the "main participant" in the ecstasy conspiracy;

(b) that Mr Andres had recruited both Mr Mas Rivadavia and Mr El-Akkaoui to be his "lieutenants" for the purposes of the heroin conspiracy;

(c) that the major decisions in relation to the heroin conspiracy were made by Mr Kardoulias, either alone or jointly with Mr Andres;

(d) that Mr Andres involved himself in both offences because of "his expectation of significant financial reward" . 113 In respect of the ecstasy conspiracy, the sentencing pattern for such offences were considered by this Court in R v Schofield [2003] NSWCCA 3 and Kevennar, above. The Crown submitted that the primary factor in determining the appropriate sentence in respect of the ecstasy conspiracy remains the statutory regime set out in s.235 Customs Act 1901 (Cth) and, in particular, the maximum penalty of life imprisonment. Reliance was placed upon the statement of Wood CJ at CL (Sully and Simpson JJ agreeing) in R v Bimahendali (1999) 109 A Crim R 355 at 361-2: "It is true that ecstasy has been consistently treated by this Court as a mid-range drug: Budiman (1998) 102 A Crim R 411; Moore and Wiebe (unreported, Court of Criminal Appeal, NSW, 11 August 1992); Bowers (1997) 97 A Crim R 461; Bushell (unreported, Court of Criminal Appeal NSW, 7 August 1998); Spillane [1999] NSWCCA 280 and Bourel (unreported, Court of Criminal Appeal, NSW, 11 December 1998). … Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ." 114 In sentencing Mr Andres on 27 May 2004, Nield DCJ referred to the repeal of s.16G and the decision of this Court in Studenikin (remarks on sentence, 27 May 2004, pages 12-15). However, his Honour did not indicate the way in which the repeal of s.16G was taken into account in imposing sentences upon Mr Andres with respect to both conspiracies. 115 In the end result, the Crown submits, the sentence imposed with respect to the heroin conspiracy fell within the Wong guideline which was itself inappropriate having regard to his Honour's findings as to the substantial role played by Mr Andres in that conspiracy. It was recognised in Mas Rivadavia at 12 (paragraph 72) that the repeal of s.16G will normally lead to the imposition of a heavier sentence than that discernible in the pre-repeal pattern of sentencing. 116 In relation to Mr Andres, it is the fact that Nield DCJ referred to the repeal of s.16G and the decision in Studenikin in his remarks on sentence of 27 May 2004. In these circumstances, it is more difficult for the Crown to make good a submission that his Honour did not have regard to the repeal of s.16G in imposing sentence. The fact that his Honour did not refer to the precise way in which he used the repeal of s.16G in sentencing Mr Andres does not, in my view, strengthen the Crown's submission on this point. Rather, as with the decision of this Court in Mas Rivadavia, I consider that the Crown appeal is to be determined by looking at the sentences imposed by his Honour to determine if they were manifestly inadequate. I do not consider that patent error has been shown in his Honour's remarks on sentence delivered on 27 May 2004. 117 In approaching the question whether error has been established by the Crown in the sentence imposed upon Mr Andres with respect to the heroin conspiracy, it is appropriate to have regard to the decision of this Court in Mas Rivadavia in which Crown appeals were upheld and sentences for co-offenders were increased. The effect of the decision in that case was that the non-parole periods imposed upon Mr Mas Rivadavia and Mr El-Akkaoui for the heroin conspiracy were a little less than that imposed upon Mr Andres for the same conspiracy. Given the more substantial role of Mr Andres in the heroin conspiracy, I am satisfied that the Crown has demonstrated that the sentence imposed upon Mr Andres for the heroin conspiracy was manifestly inadequate, being outside the proper range for offences of the objective criminality that was here involved: Mas Rivadavia at 19 (paragraph 101). 118 There is force in the Crown submission that the sentence imposed on Mr Andres for the ecstasy conspiracy was inadequate. This was a separate offence punishable by life imprisonment. In my view, the sentence imposed upon Mr Andres for the ecstasy conspiracy was outside the proper range of sentence for such an offence. 119 Counsel for Mr Andres submitted that the Court should refrain from intervening on the Crown appeal upon discretionary grounds. Reliance was placed upon the delay between sentencing in the District Court (27 May 2004) and the hearing in this Court (11 August 2005). A Crown appeal was lodged and originally listed for hearing in this Court on 11 February 2005. It did not proceed at that time because Mr Kardoulias' conviction appeal was unresolved. The hearing of the Crown appeal concerning Mr Andres was adjourned, by consent. I do not consider that delay, in the circumstances, should lead to the discretionary refusal by this Court to proceed to resentence Mr Andres. 120 Accordingly, this Court should intervene to quash the sentences imposed upon Mr Andres and to resentence him for both offences. 121 Having determined the Crown appeals should be allowed in relation to the Andres' appeals, I will approach the determination of sentence in accordance with the principles referred to earlier in this judgment - the sentences to be imposed by this Court will be less than those which should have been imposed by the sentencing court and will be towards the lower end of the available range of sentence.

Summary of Conclusions 122 In summary, I have reached the view that the sentence imposed upon Mr Kardoulias for the heroin conspiracy is not manifestly excessive and does not reveal any error on the part of the learned sentencing judge. No lesser sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. 123 With respect to the Crown appeal concerning Mr Kardoulias, I am not satisfied that the Crown has demonstrated that the sentence was manifestly inadequate. A significant differential exists between the sentence imposed upon Mr Kardoulias and the sentences imposed upon Mr Mas Rivadavia and Mr El-Akkaoui by this Court. No patent error had been demonstrated by the Crown with respect to this sentence. The Crown appeal ought be dismissed. 124 With respect to Mr Andres, I am not satisfied that any error has been demonstrated, which operated adversely to Mr Andres in the sentencing proceedings before Nield DCJ. Nor am I satisfied that the sentence or sentences imposed by his Honour were manifestly excessive. I am not satisfied that any lesser sentence is warranted in law and should have been passed: s.6(3). 125 I am satisfied that the Crown appeal should be allowed and the sentences increased in the case of Mr Andres. The sentence imposed for the heroin conspiracy was manifestly inadequate, both by reference to the sentences imposed by this Court on Mr Mas Rivadavia and Mr El-Akkaoui and the sentence imposed by Nield DCJ on Mr Kardoulias. The Crown has made good its challenge that, upon the findings made concerning the objective criminality of Mr Andres in the heroin conspiracy, a greater sentence was warranted. 126 Given that Mr Andres pleaded guilty to two separate and substantial conspiracies, the total sentence imposed upon him was, in my view, inadequate. The heroin conspiracy was punishable by a maximum penalty of imprisonment for 25 years and the ecstasy conspiracy by a maximum penalty of life imprisonment. Mr Andres played a substantial organisational role in both conspiracies. Although a strong subjective case was presented on behalf of Mr Andres, and he pleaded guilty to both offences, it was necessary that the total period of imprisonment by way of head sentence and non-parole period reflect the serious objective criminality involved in his two distinct offences. In my view, the sentences imposed at first instance did not achieve this purpose and lay outside the appropriate range of penalty for the offences in question.

Resentencing Mr Andres 127 In resentencing Mr Andres, I have regard to the factors referred to in s.16A Crimes Act 1914 (Cth). 128 With respect to the heroin conspiracy, it is appropriate to take as a starting point the head sentence of imprisonment for 13 years and six months imposed on Mr Kardoulias. It was not submitted on appeal that the discount of 15% resulting from the plea of guilty ought be varied and I apply it for the purpose of resentencing Mr Andres. Having regard to that discount, together with the favourable subjective findings made by Nield DCJ, I consider that a head sentence of imprisonment for 11 years is appropriate for the heroin conspiracy, to commence on 9 April 2002. 129 The ecstasy conspiracy represents a more serious offence punishable by life imprisonment. Having regard to the significant organisational role of Mr Andres in this offence, the objective seriousness of the offence is substantial. A sentence of imprisonment for 10 years as imposed in the District Court is manifestly inadequate. I note that Dodd DCJ imposed a sentence of 11 years' imprisonment upon Mr Mas Rivadavia who, on the findings made by Nield DCJ and Dodd DCJ, played a lesser role in the offence than Mr Andres. I bear in mind, of course, that Mr Mas Rivadavia pleaded not guilty and was convicted after trial. Mr Andres pleaded guilty at the earliest opportunity to this charge so as to attract a discount of 25%, a finding which was not challenged on appeal to this Court. 130 After making allowance for the 25% discount for the plea of guilty and the other subjective matters found in Mr Andres' favour by Nield DCJ, I consider that a head sentence of imprisonment for 12 years and six months is appropriate for the ecstasy conspiracy. 131 I turn then to issues of concurrence, accumulation and totality: Pearce v The Queen (1998) 194 CLR 610 at 624. There were two distinct conspiracies involving different drugs and, to an extent, different co-conspirators. Mr Kardoulias was involved in the heroin conspiracy but not the ecstasy conspiracy. Mr Cesan was involved in the ecstasy conspiracy but not the heroin conspiracy. Mr Mas Rivadavia was involved in both conspiracies, but to a lesser extent than Mr Andres. I note that Mr Mas Rivadavia, for both conspiracies, received a total sentence of imprisonment for 15 years with a non-parole period of 10 years to date from 8 April 2002. He was sentenced to imprisonment for eight years and three months for the heroin conspiracy (by the Court of Criminal Appeal) and imprisonment for 11 years for the ecstasy conspiracy (by Dodd DCJ), with two years and nine months of the sentences being concurrent. 132 There are certain overlapping features involving the role of Mr Andres in the two conspiracies. In both cases, he took advantage of his senior position in Federal Express to facilitate the delivery and collection of drugs. There was a substantial overlap in time between the two conspiracies. The heroin conspiracy attracted a maximum penalty of imprisonment for 25 years whilst the ecstasy conspiracy attracted the higher maximum penalty of imprisonment for life. It is appropriate to have regard to the sentences imposed upon Mr Mas Rivadavia for both conspiracies in fixing sentences for Mr Andres for the same offences. Mr Andres' pleas of guilty and the findings of Nield DCJ concerning his contrition, prior good character and prospects of rehabilitation are also relevant to the issues of concurrence, accumulation and totality. In addition, I bear in mind that this is a Crown appeal and that the sentences to be imposed at this stage will lie towards the bottom of the range of appropriate sentences for the offences in question. 133 In all the circumstances, it is appropriate that the sentences be cumulative for four years and concurrent for seven years. The total period of imprisonment which I propose for the two conspiracies is one of 16 years and six months to commence on 9 April 2002 and to expire on 8 October 2018. 134 I am required to fix a single non-parole period for the two offences: s.19AB(1) Crimes Act 1914 (Cth). Bringing to bear, once again, all of the matters which I have taken into account in determining the length of each sentence and the issues of concurrence, accumulation and totality, I consider that a non-parole period of 11 years is appropriate, to commence on 9 April 2002. 135 The orders that I propose are as follows:

(1) With respect to the application by Mr Kardoulias for leave to appeal against sentence, grant leave, but dismiss the appeal.

(1) With respect to sentences imposed for the heroin conspiracy and ecstasy conspiracy, grant leave to Mr Andres to appeal, but dismiss the appeal.

(2) Crown appeal allowed with respect to sentences imposed by Nield DCJ on 27 May 2004 for the heroin conspiracy and the ecstasy conspiracy.

(3) Sentence imposed in the District Court for the heroin conspiracy quashed and, in lieu thereof, Mr Andres is sentenced to imprisonment for 11 years to commence on 9 April 2002 and to expire on 8 April 2013.

(4) Sentence imposed in the District Court for the ecstasy conspiracy quashed, and, in lieu thereof, Mr Andres is sentenced to imprisonment for 12 years and six months to commence on 9 April 2006 and to expire on 8 October 2018.

(5) Specify a non-parole period of 11 years to commence on 9 April 2002 and to expire on 8 April 2013.

(6) The earliest date upon which Mr Andres will be eligible for parole is 8 April 2013. 136 ROTHMAN J: I agree with Johnson J. **********

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