All four sentences seem to us low, but they were imposed by two very experienced Trial Division Judges.

To some extent at least, what occurred appears to have been influenced by the sequence of events. Allingham was the first of the four sentenced, although another participant in the criminal activity, Sandra Lee Steele, had been sentenced earlier. She was treated leniently, which might well have been correct because of her personal circumstances, but her treatment seems to have influenced the attitude adopted by the prosecution in relation to Allingham after he was convicted. In this Court, the prosecution accepted that the range for Allingham was 18 months to 3 years imprisonment and that the sentence imposed avoided any disparity with Ms. Steele and was otherwise appropriate. This seems also to have been the position which the prosecution adopted before the sentencing judge.

In these circumstances, the prosecution's suggested range in relation to Booth is untenable, and to maintain parity between Allingham and Booth the prosecution's appeal against Booth's sentence must fail.

Likewise, Allingham's application for leave to appeal, which is totally without basis except insofar as some disparity can be pointed to, cannot rely upon a disparity between Allingham and Booth.

Before considering Allingham further, it is appropriate to consider Marshall, the driver of the truck which transported the container in which the drugs were imported, and Lansdowne, the driver of the accompanying vehicle.

As Cullinane J. points out, Marshall and Lansdowne were acquitted of being knowingly concerned in the importation of a prohibited import but convicted of possession of a prohibited import. The trial judge sentenced them on the basis of what he considered to be the extent of their involvement. In order to understand, and consider the correctness of his view, it is necessary to analyse the basis on which he had instructed the jury.

It is unnecessary to consider much of what he said about possession. For present purposes, the material element of the charge on which Marshall and Lansdowne was convicted concerned their knowledge. The "real question" in relation to Marshall, his Honour told the jury, "is whether he knew he was carrying cannabis". A little later, he continued:

"... . There is no need for an accused to know that the drug was imported ... . There is a provision in the Act which says it is not necessary for the prosecution to prove that the person knew that the goods in his possession had been imported into Australia.

It goes on to say that it is a defence if the person proves that he did not know that the goods in his possession had been imported into Australia, but no attempt was made to prove anything like that, so that is not a point with which you are concerned in your consideration of this alternative case."

The passages quoted carried over into the summing-up in relation to Lansdowne. Leaving aside then any question of physical control, which his Honour instructed the jury could have commenced at the beginning of the journey from Rocklea to Booth's property, the issue for the jury in relation to each of Marshall and Lansdowne with respect to the possession count was when he first knew that the drug was in the container.

Taken in isolation, the guilty verdicts on the possession charge are consistent with a conclusion by the jury that each of Marshall and Lansdowne had possession of what they knew was a drug from the time when the journey from Rocklea commenced. But his Honour sentenced them on the basis that they only knew that there was a drug in the container after they arrived at Booth's property, shortly before the police arrived and arrested them: see the passage from p.122 of the appeal record quoted in his reasons for judgment by Cullinane J.

During the course of argument, his Honour said that that basis was "most logically consistent" with the jury's acquittal on the importation charge and conviction on the possession charge. We cannot agree. As his Honour told the jury before consideration of the importation charge, "... there needs to be knowledge that there was an imported drug in the container" and, he went on, "some conduct in relation to it with that knowledge". Importantly, on the importation charge, in contrast to the possession charge, the prosecution could not rely on a statutory presumption that the drug was known to be imported but had to prove that knowledge: see subsection 233B(1A) and compare subsections 233B(1)(c) and (d) of the Customs Act 1901 (Cwlth). The jury might have been convinced that Marshall and Lansdowne knew that the drug was in the container when they took possession of it at Rocklea, but acquitted them on the importation charge because they were not convinced that they knew that the drug was imported.

However, in the passage quoted by Cullinane J. from p.122 of the appeal record, his Honour indicated that the basis on which he sentenced Marshall and Landsowne was his "charitable interpretation" of the jury's verdict. It is not possible to be satisfied that this "interpretation" was influenced by his earlier, erroneous view of what was "most logically consistent" with the jury's verdicts. In these circumstances, we do not feel justified in substituting our own opinion as to their probable involvement. It was within the sentencing Judge's discretion to proceed on the basis favourable to Marshall and Lansdowne which he adopted: cf R. v. Pryor (1987) 2 Qd R 768; Skillin [1991] FCA 174; (1991) 53 A Crim. R 311.

In these circumstances, the prosecution appeal against their sentences faces very real difficulties, as counsel acknowledged. We agree with Cullinane J. that the appeals should be dismissed.

Because of their assumed lesser involvement, there is no foundation for a submission that there is disparity between the sentences of Marshall and Lansdowne and Allingham's sentence. Allingham's application for leave to appeal should accordingly be refused.