"The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of Jurisic and Henry included a plea of guilty. That was not the case in Wong in which the range encompassed relevant matters, including a plea. In each of Jurisic at 231 and Henry at [162], the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons."
12 The point of distinction between the guideline in Wong and Leung and the other two decision mentioned by the Chief Justice is that in Wong and Leung the Court referred to a range of sentences for different classes of offenders, whereas in both Henry and Jurisic the Court identified a standard case for the offence under consideration and indicated the appropriate sentence for such a case. But in all three guideline judgments given before Thomson and Houlton a plea of guilty was assumed in fashioning the guideline. That the Wong and Leung guideline takes into account a plea of guilty is made clear in R v Haidar [2004] NSWCCA 350 at [22].
13 Although the discount given by reason of the repealed s 16G should not be mathematically determined, it was a significant one. The repeal of that section must effect sentences for Federal offences by simply prohibiting the Court from discounting the sentences to take into account the absence of remissions and must substantially affect a range of sentences imposed while the section operated: see R v Studenikin (2004) 60 NSWLR 1.
14 In the present case the sentence imposed is at the top of the range indicated in Wong and Leung notwithstanding that the applicant had a quantity of drug towards the lower end of the relevant quantity. However the applicant did not enjoy the advantage of a finding that his criminality was reduced by reason of him being a courier or a person lower in the hierarchy and therefore the range of sentences did not strictly apply to him. The applicant clearly left this country for the purpose of importing drugs on his return, a matter that to my mind significantly aggravates his criminality over the usual type of courier. This is a circumstance that was not present in Haidar where the appellant sought to obtain possession of drugs that had been sent into Australia by mail and is a reason to distinguish the lesser sentence imposed in that case for a similar amount of drug. In my opinion the sentence is a heavy one for a person with the subjective circumstances of the appellant but I am not satisfied that it was outside of the range legitimately open to the sentencing judge.
15 I would propose that the applicant be granted an extension of time in which to apply for leave to appeal. Leave should be granted but the appeal dismissed.
16 HARRISON J: I agree with Howie J.
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