SCCRM-98-293, SCCRM-98-294, SCCRM-98-304, SCCRM-99-14, SCCRM-98-295, SCCRM-99-9

(Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ)

[1999] SASC 175

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ. I agree with the orders proposed by Bleby J, and with the reasons that he gives for making those orders. There is nothing that I wish to add to those reasons.

The appellants, together with two others, were charged on information with being knowingly concerned in the importation of a prohibited import, contrary to s233B(1)(d) of the Customs Act 1901. Particulars of the offence alleged were that "between 1st day of November 1997 and the 9th day of November 1997 at Adelaide and other places in the said State, (the defendants) were knowingly concerned in the importation into Australia of a prohibited import to which Section 233B of the Customs Act 1901 applies, namely about 9,350 grams of heroin, being not less than the commercial quantity".

After first arraignment but before a jury was empanelled, the appellants indicated that they wished to challenge the validity of s233B(1)(d) as being contrary to the provisions of s80 of the Constitution. I will return to discuss this argument more fully, but its essential nature had been identified in the annexure to an application by the appellant Yu Shing Cheng for an order quashing the information. It squarely challenged the validity of s233B(1)(d). If the argument were to succeed, the information would necessarily fail, as the appellants could not be convicted of an offence purportedly created by an invalid section.

After and by virtue of a series of procedural directions given by the trial judge, application was made pursuant to r8.01 of the Supreme Court Criminal Rules 1992 to quash the proceedings or stay them on the constitutional ground which had been identified. Section 281(1) of the Criminal Law Consolidation Act 1935 also allows objection to any information for any formal defect apparent on the face thereof to be taken by demurrer or motion to quash the information.

When the appellants were arraigned they all demurred to the offences which had been charged. The prosecutor joined issue on the demurrer. For reasons which he then gave, the trial judge overruled the demurrer and upheld the validity of the relevant provisions of the Customs Act. The three appellants thereupon pleaded guilty to the charge as particularised in the information without amendment. They were remanded for sentence. The other two defendants pleaded not guilty and were subsequently acquitted after a trial by jury.

On 3 December 1998 the trial judge sentenced Yu Shing Cheng to imprisonment for fourteen years with a non-parole period of seven and a half years. Bach An Chan was sentenced to sixteen years' imprisonment with a non-parole period of eleven years, and Gang Cheng was sentenced to thirteen and a half years' imprisonment with a non-parole period of seven and a half years.

The appellants now appeal against their convictions, and each appellant appeals against the sentence imposed.

As has already been noted, the appeals against conviction by the appellants follow convictions entered upon pleas of guilty to a charge contained and particularised in the information. However, the pleas were only entered after the demurrer had been overruled by the trial judge, and in the knowledge that the ruling on the demurrer was inevitable and an appeal almost certain.

No objection was taken by the respondent to the competency of the appeals against convictions. The practice, at least in these cases, falls within guidelines well-established in previous decisions of this Court. In R v Howes (1971) 2 SASR 293 the defendant was charged with conspiracy to effect a public mischief. He demurred to the sufficiency of the information. The demurrer was overruled by the trial judge, and the defendant thereupon pleaded guilty and was convicted. This Court held that an appeal against his conviction upon the ground that the demurrer was wrongly overruled was competent, notwithstanding his plea of guilty. That decision was based substantially on the decision of the Court of Appeal in R v Forde [1923] 2 KB 400 at 403. That was a case where an appeal was entertained against conviction after a plea of guilty, and where, upon the admitted facts, the defendant could not in law have been convicted of the offence charged. See also Director of Public Prosecutions v Bhagwan [1972] AC 60; Treacy v Director of Public Prosecutions [1971] AC 53.

R v Forde established that an appeal against conviction entered upon a plea of guilty will be entertained either if it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or if, upon the admitted facts, he could not in law have been convicted of the offence charged. The second alternative was recently considered sufficient justification for entertaining an appeal in similar circumstances by the Victorian Court of Appeal in R v Parsons [1998] 2 VR 478. That second alternative is sufficient justification for the entertaining of this appeal if the appellants' submission is that no conviction could properly be recorded because of the invalidity of s233B of the Customs Act.

It may be that there are other circumstances in which an appeal will be entertained after a plea of guilty. In this Court, Lander J undertook an exhaustive review of the relevant authorities in R v Frantzis (1996) 66 SASR 558 and concluded (at 574) that an appellant would be entitled to appeal, notwithstanding a plea of guilty "if the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, if, upon the admitted facts, he could not in law have been convicted of the offence charged, or if to refuse him or her an appeal would result in a miscarriage of justice". That conclusion is not in question in this case, and I need stay no further to consider the competence of these appeals.

Before I leave the topic, however, one point does emerge clearly from the cases which may have a bearing on another aspect of this appeal. That concerns the nature of a plea of guilty. A plea of guilty is an admission of all the essential elements of the charge, and the conviction is not entered upon the evidence that is adduced upon the charge but upon the confession formally entered in court: R v Frantzis (supra) per Lander J at 562, citing Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, Maxwell v The Queen (1996) 184 CLR 501, R v Massey [1994] SASC 5133; (1994) 62 SASR 481 and R v Segiv (1986) 22 A Crim R 73. As King CJ said in R v Massey (supra) at 482, "(t)he legal effect of a plea of guilty is that there is no issue between prosecution and the person charged as to the truth of the charge and the conviction is entered on that basis". Perry J agreed at 491.

So far as is relevant, s233B of the Customs Act 1901 provides as follows:

"233B (1) Any person who: ... (d) aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies, or the exportation from Australia of any prohibited exports to which this section applies;... ... shall be guilty of an offence. ... (2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods. (3) A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235."

Other paragraphs of subsection (1) prescribe other offences relating to the possession and importation of prohibited imports. As can be seen from the section, prohibited imports are narcotic goods. "Narcotic goods" is defined in s4 of the Act as meaning goods that consist of a narcotic substance, and for present purposes a "narcotic substance" means a substance or thing that is described in Column 1 of Schedule VI of the Act. That Schedule lists in excess of 120 narcotic substances.

"235 Penalties for offences in relation to narcotic goods (1) ... (2) Subject to subsections (3) and (7), where: (a) a person commits an offence against subsection 231(1), section 233A or subsection 233B(1); and (b) the offence is an offence that is punishable as provided by this section; the penalty applicable to the offence is: (c) where the Court is satisfied: (i) that the narcotic goods in relation to which the offence was committed: (A) are a narcotic substance in respect of which there is a commercial quantity applicable; and (B) consist of a quantity of that substance that is not less than that commercial quantity; or (ii) that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance and also that, on a previous occasion, a court has: (A) convicted the person of another offence, being an offence against a provision referred to in paragraph (a) that involved other narcotic goods which consisted of a quantity of a narcotic substance not less than the trafficable quantity that was applicable to that substance when the offence was committed; or (B) found, without recording a conviction, that the person had committed another such offence; imprisonment for life or for such period as the Court thinks appropriate; (d) where the Court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to the substance but is not satisfied as provided in paragraph (c): (i) if the narcotic substance is a narcotic substance other than cannabis - a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both; or (ii) if the narcotic substance is cannabis - a fine not exceeding $4,000 or imprisonment for a period not exceeding 10 years, or both; or (e) in any other case - a fine not exceeding $2,000 or imprisonment for a period not exceeding 2 years, or both. (3) Where: (a) the Court is satisfied that the narcotic goods in relation to which an offence referred to in subsection (2) was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance, but is not satisfied as provided in paragraph (c) of that subsection in relation to those narcotic goods; and (b) the Court is also satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, those narcotic goods; notwithstanding paragraph (d) of that subsection, the penalty punishable for the offence is the penalty specified in paragraph (e) of that subsection. ... (8) For the purposes of subsections (2) and (3), the narcotic substance of which narcotic goods in relation to which an offence has been committed consist is the narcotic substance that is specified in the relevant information, complaint, declaration, claim or indictment as the narcotic substance of which those goods consist."

Subsection (7) is not relevant for present purposes. By virtue of Schedule VI of the Act a commercial quantity of heroin is 1.5 kilograms and the trafficable quantity is 2 grams.

The structure of the Act is that s233B prescribes the relevant offences and refers the reader to s235 for the appropriate penalty. The maximum penalty steps in ascending order are -

(a) a fine of $2,000 or 2 years imprisonment or both;

(b) a fine of $4,000 or 10 years imprisonment or both;

(c) a fine of $100,000 or 25 years imprisonment or both; and

It can readily be seen that the appropriate maximum penalty will depend upon the nature of the substance in relation to which the offence was committed, the quantity of the substance, in some cases whether there has been a previous conviction and, in some cases (see s235(3)) the purpose for which the offence was committed.

The argument of the appellants is that s235 of the Act, as it applies to them, is unconstitutional, as it purports to impair their right to a trial by jury of every element of the offence alleged against them, such right being guaranteed by s80 of the Constitution. That section provides:

"80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, ..."

Section 235 requires the Court to be satisfied as to the nature and quantity of the narcotic goods in question and, where relevant, as to the purpose for which the offence was committed. "The Court" has been held to mean a judge and not the jury in relation to this section. The appellants argue that this means that essential elements of the offence are determined by the judge rather than the jury and that this is contrary to s80 of the Constitution.

In Kingswell v R (1985) 159 CLR 265 it was argued that each of the paragraphs of s233B(1) and s235(2) together created a number of separate offences, the ingredients of which were not only the matters described in the paragraphs of s233B(1), but also the various allegations which affected penalties in different cases. It was said that if the indictment did not particularise the various elements alleged in s235(2) and if those elements were not proved to the satisfaction of the jury, then the accused could only be convicted and punished in accordance with the requirements of s235(2)(e). It was also argued in that case that if the matters referred to in s235(2) were to be decided by a judge and not a jury, s235 would be invalid as being in contravention of s80 of the Constitution. By way of final alternative it was argued that even if the matters in s235(2)(c) were only matters of aggravation, they should still have been charged on the indictment and found proved by the jury.

The majority of the Court agreed that it was a general rule of construction that where different maximum penalties were prescribed Parliament must be taken to have intended to create separate offences. However, that presumption could be displaced by a contrary intention, and such a contrary intention appeared in these sections of the Customs Act. The penalty provisions in s235 therefore did not create more than one offence. The majority also held that the determination of (in that case) the quantity of a drug by a judge for the purpose of assessing penalty did not mean that there had not been a trial by jury as required by s80 of the Constitution.

The majority (Gibbs CJ, Wilson and Dawson JJ) said at 276:

"Sections 233B(1)(cb) and 235(2) do not contravene s.80 of the Constitution. Section 80 requires that if there is a trial on indictment of any offence against any law of the Commonwealth it shall be by jury. The sections now in question do not provide to the contrary. If there is a trial by jury the ordinary incidents of such a trial will apply; the judge will continue to exercise his traditional functions, and, for the purpose of imposing a sentence within the limits fixed by the law, will form his own view of the facts, provided that that view is not in conflict with the verdict of the jury. Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence."

Deane and Brennan JJ, in dissent, held that, although it was the intention of Parliament to separate the requirements of guilt from the requirements which determined the maximum penalty, this was contrary to s80. In the words of Brennan J at 294, that section prohibited Parliament "from withdrawing issues of fact on which liability to a criminal penalty or to a particular maximum penalty depends from the jury's determination when any offence against a law of the Commonwealth is tried on indictment".

The appellants in this case submit that Kingswell v R was wrongly decided, and that the judgment of the minority in that case should now prevail. They say that developments in constitutional law since Kingswell v R throw further doubt on the correctness of that decision. They point to a number of decisions concerning the construction of constitutional guarantees in which precedence has increasingly been given to substance over form. They point to an acknowledgment of this trend by the High Court in Ha v New South Wales [1997] HCA 34; (1996-1997) 189 CLR 465. Brennan CJ,. McHugh, Gummow and Kirby JJ said, at 498:

"When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates - its practical operation - must be examined as well as its terms in order to ensure that the limitation or restriction is not circumvented by mere drafting devices. In recent cases, this Court has insisted on an examination of the practical operation (or substance) of a law impugned for contravention of a constitutional limitation or restriction on power. (Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 401, 408; Bath v Alston Holdings Pty Ltd [1988] HCA 27; (1988) 165 CLR 411 at 425, 432; Philip Morris Ltd v Commissioner of Business Franchises (Vic) [1989] HCA 38; (1989) 167 CLR 399 at 451, 492; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 524-525, 569; Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436 at 466-467; Barley Marketing Board (NSW) v Norman [1990] HCA 50; (1990) 171 CLR 182 at 199)."

The appellants submit that the decision in Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 also supports the view that substance should be given precedence over form. In that case the Court held that the requirement in s80 that there be a trial by jury imported the requirement of a unanimous verdict. The Court referred to what the phrase "trial by jury" meant at the time that the Constitution was drafted and the purpose which the guarantee of trial by jury was intended to achieve. In their joint judgment the whole Court said, at 549:

"As Griffith C.J. commented in R. v. Snow [1915] HCA 90; (1915) 20 CLR 315, at p323, s.80's requirement that the trial on indictment of any offence against any law of the Commonwealth shall be by jury represents a 'fundamental law of the Commonwealth' which 'ought prima facie to be construed as an adoption of the institution of "trial by jury" with all that was connoted by that phrase in constitutional law and in the common law of England'."

In similar vein, the appellants submit that where "offence" is used in s80 of the Constitution should now be interpreted in the same manner. They submit that when the Constitution was written, the word included all the elements of the offence, including those which determined the applicable penalty range. They cite R v Courtie [1984] AC 463 per Lord Diplock at 471:

"My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another."

Not to include all the elements, so the appellants argue, would allow the abrogation of the guarantee provided by s80 simply by allowing Parliament to redefine an offence to mean only some of the elements of the offence. Unless the words in the Constitution retain their original meaning, the constitutional provision could be watered down by the simple artifice of parliamentary redefinition of terms. It is said that Parliament could provide that the most innocuous of facts was all that constituted the offence, with a wide escalation of penalty depending on a number of further facts constituting aggravating circumstances, all of which were to be the province of the judge. In this way, the gravamen of the offence could be left entirely to the judge, and the s80 guarantee of trial by jury for indictable offences could be circumvented. They point to the warning given in the dissenting judgment of Dixon and Evatt JJ in R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 at 583, where they considered that the word "indictment" had to be interpreted in the light of its meaning at federation.

The argument of the appellants is to the effect that "trial by jury" should be similarly interpreted, and should encompass the substantial elements common to the recognised process at federation. That involved the adjudication by a jury of twelve persons upon all the elements of an offence that rendered a person liable to a particular punishment. These elements all need to be proved at a trial. Thus, it is said that s80 of the Constitution requires each element of the offence to be tried by jury. The constitutional guarantee cannot be infringed by providing that elements of the offence should be the province of the judge by defining them not to be elements of the offence for the purpose of guilt, but elements of the offence for the purpose of sentence.

The appellants went as far as to say that the decision in Cheatle and Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171 entitled this Court to regard the interpretation of s80 as not definitively settled by Kingswell. Brown v The Queen decided by majority (Brennan, Deane and Dawson JJ; Gibbs CJ and Wilson J dissenting) that s80 of the Constitution precludes an accused person from electing pursuant to s7(1) of the Juries Act 1927 (SA) to be tried by judge alone for an offence against a law of the Commonwealth. That was a very different question from that decided in Kingswell. Gibbs CJ, dissenting, at 182 considered that the law regarding the interpretation of s80 of the Constitution was settled by R v Federal Court of Bankruptcy; Ex parte Lowenstein and Kingswell, notwithstanding the strong dissenting judgment of Deane J in Kingswell. Wilson J, at 184, considered that a detailed consideration of Kingswell was unnecessary. Brennan J at 196 and Dawson J at 215 referred to past differences of judicial opinion on the operation of s80 and to the dissenting judgment of Deane J in Kingswell, but neither suggested that Kingswell was wrongly decided. Even Deane J, although expressing the view (at 202) that some judgments of the High Court (without referring specifically to the majority in Kingswell) had mistakenly given the phrase "trial on indictment" a meaning which would deprive s80 of much of its effectiveness, did not comment further or at all on the correctness of the decision in Kingswell.

The appellants also submit that the error of the majority in Kingswell was compounded by the majority in R v Meaton [1986] HCA 27; (1986) 160 CLR 359 where, although the matters referred to in s235 were described as "circumstances of aggravation" (at 363), and were validly for the trial judge to determine, the majority nevertheless considered that the circumstances should be pleaded and should be the subject of adjudication by the jury where possible. They said (at 363-364):

"The inclusion in the indictment of matters of fact, which, although not elements of the offence, render the accused liable to a greater maximum punishment, serves the double purpose of informing the accused of a very important feature of the case made against him and of enabling the jury (in the event of a trial by jury) to decide questions of fact which may very materially affect the maximum punishment to which the accused is exposed. Where a jury determines the guilt of the accused the satisfaction of the court for the purposes of s.235(2) should be consistent with the finding of the jury. The preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation; the jury can then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation: see Archbold's Criminal Evidence & Practice, 42nd ed. (1985), pars. 4-459 - 4-461. Where the accused is alleged to have been convicted of a previous offence in respect of narcotic goods, in New South Wales the practice governed by ss.394 and 414 of the Crimes Act 1900 (N.S.W.), as amended, should be adopted. In those States where the matter is not governed by express statutory provision, the practice which is set out in Kingswell v. The Queen (1985) 159 CLR, at pp279-281 should be followed. In other words, the accused should, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence together with any circumstances of aggravation other than the alleged previous conviction. If he pleads not guilty or the court orders a plea of not guilty to be entered, the jury should be charged in the first instance to inquire only regarding those matters. If the accused is convicted the jury will, if the accused does not admit the previous conviction, be asked to find if he was previously convicted of the earlier offence alleged: but, in relation to Victoria, see Crimes Act 1958 (Vict.), as amended, s.395. In the event of an accused pleading guilty to the offence as charged but then disputing an alleged previous conviction, since no jury will have been empanelled the judge will proceed to determine that issue. Furthermore, if an accused person pleads guilty only to the offence as defined by s.233B, any matters of aggravation that may be in dispute will fall to be determined in accordance with the practice prevailing in the State concerned."

The majority nevertheless described such pleading as a rule of practice, and affirmed that failure to observe it does not necessarily mean that the conviction should be set aside.

The appellants attacked the reasoning in R v Meaton as being confused and inconsistent. Whether that be so or not, and whatever may be the strength of the arguments which the appellants now advance, we are bound by the decision in Kingswell to the effect that s235 of the Customs Act does not enlarge the number of offences prescribed by s233B but is merely a method of fixing a penalty, and that s235 is not rendered invalid by s80 of the Constitution. I would respectfully adopt the observation of Brennan CJ in Ravenor Overseas Inc v Readhead [1998] HCA 17; (1998) 72 ALJR 671 at [3]:

"Nothing is more important to the due administration of justice than that the Courts of Australia should faithfully follow decisions of this Court. This Court has the responsibility of determining the law applicable throughout the Commonwealth. Nor should it be thought that, because some new argument can be devised contrary to a holding of this Court, the authority of its decisions become problematic. Although the decisions of this Court will, when this Court deems it necessary, be revisited, there should be no qualification about the duty of other Courts faithfully to apply the decisions of this Court as they stand."

The appeals against the convictions must therefore be dismissed.

Although that is enough to dispose of the present appeals against conviction, I consider that even if the appellants' arguments were to succeed, the appeals against conviction would still have to be dismissed.

Before the trial judge it was argued that the scheme of penalties prescribed in s235 rendered s233B of the Act invalid, so that no offence could be committed. Before us it was argued that both s233B(1)(d) and s235 were invalid. The argument in Kingswell, however, was only that s235(2)(c) and (d) were invalid on the grounds that I have described. It was not suggested that s233B(1)(cb) (which for present purposes bears no relevant difference from s233B(1)(d)) did not create an offence. It was argued that the only penalty available was that provided by s235(2)(e), namely a maximum penalty of two years' imprisonment or a $2,000 fine or both. That argument was accepted by Brennan and Deane JJ, both holding (Brennan J at 296 and Deane J at 322) that the maximum penalty that could be imposed was that specified in paragraph (e). They would not have disturbed the conviction. Indeed, Deane J specifically referred to the fact (at 322) that it was not suggested in argument that the effect of the invalidity of s235(2)(c) and (d) would be that the provisions of s235(2)(e) or s233B(1)(cb) were also invalid.

Although the appellants' argument before us alleged that the whole of s235 was invalid, that sweeping conclusion is not justified even by the minority in Kingswell. It was not suggested in Kingswell, and was not suggested in argument before us, that paragraph (e) could not be severed from the rest of subsection (2) of s235 if the other paragraphs were invalid. It is difficult to see how the appellants could successfully attack the validity of s233B(1)(d) coupled with s235(2)(e) based on the arguments they have advanced.

It would follow that in any event the appeals against conviction must be dismissed whether or not the constitutional argument succeeds. If it were to succeed, the result would be that the appellants only have a valid appeal against the sentences imposed, but on the additional ground (not mentioned in the present appeals against sentence) that the sentences imposed are invalid for the reasons advanced. In the circumstances I would be prepared to treat the appeals against sentence as including those grounds, but would reject those grounds of appeal for the reasons I have already given.

Other Grounds of Appeal Against Sentence - The Facts

The amount of heroin powder seized was 13,462 grams. It was about 70% pure. On analysis it was shown to contain 9,350 grams of pure heroin. Its street value was said to be in excess of $13,000,000.

The heroin was sent from Bangkok in five marble pedestals. The column of each pedestal was hollow and had been filled with heroin. The pedestals were packed in five crates and sent by air freight by a person giving a false name and address. On arrival in Adelaide, the crates were shown to a sniffer dog. The dog reacted to two of the crates. The crates were X-rayed and irregularities were noted. The crates were opened and the pedestals were removed. The pedestals were then carefully opened and the heroin was found inside. Federal police officers removed the heroin and replaced it with a substitute powder. The pedestals were then carefully resealed and repacked. Listening devices were placed in two crates and in one pedestal.

The crates were addressed to the appellant Yu Shing Cheng at his flat in Frederick Street, Adelaide. On 4 November 1997 he was informed that goods had arrived for him. He telephoned the appellant Bach An Chan, and they later met at the Talbot Hotel in the city. No further steps were taken that day about collecting the crates.

On the afternoon of 5 November 1997 the appellant Yu Shing Cheng went to the airport with his girlfriend. The sentencing Judge appears to have accepted that he was not then aware of the number and size of the packages. He then arranged for the crates to be delivered to his flat. The crates were delivered at about 5.00pm that afternoon, whereupon Yu Shing Cheng again telephoned Bach An Chan. At about 6.30pm Bach An Chan arrived at Yu Shing Cheng's flat with another man named Andy Hsu. The crates were unpacked. Bach An Chan and Mr Hsu then loaded the pedestals in Bach An Chan's car and went to Hsu's flat in Winifred Street, Adelaide. The appellant Gang Cheng was supposed to have assisted in removing the pedestals, but could not because he was meeting his girlfriend. Bach An Chan was at the flat at Winifred Street at different times that night, and late that evening Bach An Chan, Gang Cheng and Mr Hsu went out together for some time.

On 6 November 1997 Gang Cheng rented a Toyota Landcruiser. He used a driving licence in the name of Tan Tran and paid the hire charge with a credit card which he had stolen from a woman called Dewi Takarini. Later that night Gang Cheng met Mr Hsu and loaded the pedestals into the Landcruiser. Bach An Chan was present at the flat at different times that night. At 1.00am on the morning of 7 November Gang Cheng and Andy Hsu drove off in the Landcruiser to Sydney. Bach An Chan was in the flat in Winifred Street when they left. Gang Cheng and Andy Hsu arrived at Stanmore, an inner suburb of Sydney, at about 4.00pm on 7 November.

Bach An Chan had, in the meantime, flown to Sydney. Upon arriving at Stanmore, Gang Cheng telephoned Bach An Chan, and about one hour later Bach An Chan and two other Chinese men arrived at McDonald's Restaurant at Stanmore. One of Bach An Chan's companions then drove the Landcruiser away. Gang Cheng, Andy Hsu and Bach An Chan then went to the Royal Gardens Hotel in the Haymarket at Sydney where they stayed for a short time. They were arrested later that night. Yu Shing Cheng was arrested in Adelaide on 8 November 1997.

That was the extent of the involvement of the three appellants. However, because it may have some relevance to questions of parity, the rest of the story needs to be told, and this appears from the sentencing remarks of Chief Judge Blanch in the New South Wales District Court when sentencing Ngai Sze Law on 5 August 1998. These sentencing remarks were before the sentencing Judge in this case.

During the evening of 7 November Ngai Sze Law was seen to get into the Landcruiser and drive it to a residence in Cherrybrook owned by Mr Law's father and where Law was living. His parents at that stage were living in Hong Kong. On 8 November 1997 Ngai Sze Law, a Mr Wong and a Mr Leung were seen to be manoeuvring the pedestals into a garage, the windows of which had been covered internally with cardboard. By means of the listening device which had been installed, it appeared to police that they were breaking up the pedestals in the garage and removing the contents. It became clear to them that they were not dealing with heroin. They sought to clean up and remove all traces of the substance and the pedestals to the extent of using surgical gloves, and vacuuming the floor of the garage of the premises where they were. They were then arrested.

That is sufficient factual background for present purposes. I will need to consider circumstances peculiar to each of the appellants when considering the particular sentences imposed. Before doing so, it is convenient to deal with arguments common to two or all three of the appellants.

The appellants Yu Shing Cheng and Gang Cheng argued that, independently of the constitutional argument, they had been sentenced on an incorrect statutory basis. It was their case that the Court was precluded from imposing any sentence greater than the maximum prescribed by s235(2)(e). In short, it was said that proof of knowledge that the narcotic substance imported was a commercial quantity was a necessary ingredient of the offence, and that without such proof or proof of knowledge of a trafficable quantity, the lowest maximum penalty prescribed by paragraph (e) was all that could be imposed. In their cases, it was said that such knowledge had not been proved, and that in the case of Yu Shing Cheng, he was specifically sentenced by the sentencing Judge on the basis that he had no knowledge of the contents of the pedestals.

I would reject this ground in each case, both because it is contrary to the proper construction of the Act, and also because, if it were necessary to do so, I would hold that it can properly be inferred that each of the appellants did know that they were dealing with a commercial quantity of a narcotic substance.

I turn to the construction of the Act. It is beyond question, at least since He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, that proof of mens rea is required before a person can be found guilty of an offence against s233B(1)(b) (importing a prohibited import), and that an alleged breach of subsection (1)(c) (having in possession any prohibited import) requires at least proof of knowledge of the substance possessed. It may readily be accepted that proof of mens rea is also necessary in order to establish a breach of s233B(1)(d).

The question is whether, at the sentencing stage, knowledge of the nature and quantity of the prohibited import is necessary in order to attract a greater penalty than that prescribed in s235(2)(e).

It must follow from the decision in Kingswell that all the necessary elements of the offence (including the requirement of mens rea) can be found in s233B(1)(d) alone. If that is so, the only relevant knowledge that is required to be proved in order to secure a conviction is knowledge that the substance imported is a prohibited import, or goods containing a narcotic substance.

Merely because particulars of the substance imported or to be imported are given does not mean that the prosecution must prove knowledge of those particulars in order to prove the offence, any more than it is necessary to prove knowledge of the identity of the victim of a murder because the victim is named in the particulars contained in the information. As Wells J said in R v Pfitzner (1976) 15 SASR 171 at 192:

"Particulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining what exactly the defence is called on to answer. Even where, at the end of a trial, they are indisputably correct as they stand, they could not, on their own, have performed the broad task of ensuring that the forensic contest is directed to the same issues, and that the accused is treated fairly."

Particulars are therefore an aid to ensure the fairness of the trial of the accused. They are not there to add to the burden of what the prosecution must establish in order to prove the offence. Even on some occasions, when the evidence departs from the particulars, the trial will not necessarily miscarry: Saffron v The Queen (1989) 17 NSWLR 395. The only question in such a case is whether there has been any unfairness to the defendant in the misstatement of the particulars. See the examples given by Wells J in R v Pfitzner (supra) at 192-193. See also Kenning v Hayes (Unreported, 17 September 1992, Judgment No S3616) where Duggan J said (at 5-6):

"To say that the prosecution is to be held to the case disclosed by its particulars is not to say that in every case where there is a discrepancy between the particulars and the evidence there must be an acquittal. If a material averment in the complaint itself has not been proved then the prosecution must fail. But where particulars which are supplied in addition to the facts contained in the statement of the charge are at variance with the facts relied upon by the prosecution at trial and there is a conviction on that evidence, an appellate court will be required to determine whether there was any unfairness to the person convicted giving rise to the possibility of a miscarriage of justice."

Duggan J was there speaking of particulars given of a complaint on a summary trial, where the giving of particulars is even more important than in a trial on indictment where there has been a committal.

Once the elements of an offence are proved or admitted and a conviction entered, determination of the appropriate penalty range, where such is specified, will depend on whether the criteria specified in the penalty provisions have been met. They might depend on the state of knowledge of the defendant; they might depend on other objective criteria. In s235 of the Customs Act they depend on the court (in this case the sentencing judge) being satisfied as to certain objective criteria. In the case of the maximum possible penalty of life imprisonment there are two alternative sets of criteria that may be used. For present purposes the court could impose a sentence up to life imprisonment if it were satisfied that the provisions of paragraph (c)(i) were met, namely:

(a) that the narcotic goods the subject of the offence were a narcotic substance in respect to which there is a commercial quantity applicable. This will depend on proof of the nature of the substance and whether a commercial quantity for it has been specified in Schedule VI. (Not all narcotic substances have commercial quantities specified in that Schedule.); and

(b) that the quantity the subject of the offence is not less than that specified commercial quantity.

None of the relevant criteria specify proof of knowledge of the quantity on the part of the defendant or proof of knowledge of any other factor. Proof or admission of the objective facts will be sufficient.

The provisions of paragraph (c)(i) are to be contrasted with those of subsection (3), where the maximum penalty that may be imposed depends on the court being satisfied that the offence was not committed by the particular defendant for a particular purpose. Proof of such matters will obviously demand inquiry into the state of knowledge and intention of the defendant. However, that is not the case here.

Mr T A Gray QC for the appellant Yu Shing Cheng argued that by parity of reasoning to that of the majority of the Court in He Kaw Teh v The Queen, the Court should nevertheless hold that proof of knowledge of the amount involved is an essential element in determining the appropriate penalty range. It is true that one of the factors which persuaded the majority in that case that the offences in question were not absolute offences was the seriousness of the offence as reflected by the possible maximum penalty. Gibbs CJ, in referring to s233B(1)(a) considered that there were many factors which contributed to the conclusion that proof of mens rea was necessary. One of them was the subject matter of the offence. On the one hand there was the grave social evil which Parliament intended should be rigorously suppressed, suggesting that the offence should be an absolute one. On the other hand, he pointed to the truly criminal nature of the offence and the fact that a convicted criminal becomes liable to the highest penalty that may be imposed under the law. He said (at 530):

"[O]ffences of this kind, at least where heroin in commercial quantities is involved, are truly criminal; a convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so."

"I have already shown that the offence created by s.233B(1)(b) is treated by the Parliament in some circumstances as being one of the most serious in the criminal calendar. It seems improbable that the Parliament would have intended that it might be committed as a result of mere carelessness, although that would be the case if guilty knowledge was not an element, and an unreasonable although honest mistake would not be sufficient to exculpate the accused. It is true that the penalty of life imprisonment provided by the statute is a maximum one and that a judge who considered that the accused had brought in narcotic goods in the honest but unreasonable belief that his luggage did not contain them would sentence accordingly. Nevertheless, to provide that a sentence of life imprisonment might be imposed for an offence committed merely through negligence would appear to be exceedingly severe. The gravity of the offence suggests that guilty knowledge was intended to be an element of it."

Mason J agreed with the reasons for judgment of the Chief Justice. Remarks to similar effect may be found in the judgments of Brennan J at 567 and Dawson J at 597.

However, the seriousness of the offence was only one factor in a number that were considered in reaching the conclusion that the majority did. That factor would have far less influence if the maximum penalty were only that prescribed by s235(2)(e). However, the court did not suggest any differentiation so far as proof of the mental element was concerned, between serious breaches and minor breaches. The state of knowledge or criminal intent necessary to be proved only went to the elements of the offences prescribed in s233B(1). It was the seriousness of those offences, reflected in the level of possible penalty, that made proof of those mental elements necessary. The importance of knowledge and intention went to the elements of the offence because of (inter alia) the seriousness of the offence and the stigma attached to a conviction. It was not because of stigma attached to the penalty which might, in some circumstances, be relatively low. Once all the necessary elements were proved, the actual assessment of penalty was to be by reference to other and different considerations. I am therefore not satisfied that the reasoning in He Kaw Teh v The Queen requiring proof of the necessary mental element for guilt applies to the assessment of the penalty.

It is not surprising that Parliament should not have required proof of knowledge of the nature and quantity of the substance the subject of the charge in order to determine the penalty. Parliament has prescribed very heavy penalties for being involved in drug importation. They reflect the seriousness with which such activities are viewed. Those involved in the international drug trade use highly sophisticated methods to conceal their activity and to deceive police and customs authorities. In order to achieve that level of concealment and deception, those actually transporting the drugs are told only as much as they need to know in order to permit and induce them to undertake their part in the process. In most cases, actual information as to the nature and quantity of the substance involved will be kept from those involved in the physical transportation of the substance. They may well not know the precise nature of the drug. They will know even less of the quantity, other than the possible upper limit by reference to the size and weight of the containers. Except in the most obvious of cases, it is quite impossible for the uninformed courier to know positively whether he or she is handling a trafficable or a commercial quantity. It is hardly surprising, given the seriousness and prevalence of the offence and the obvious need for deterrence, that Parliament would prescribed penalties not dependent upon knowledge of the nature or amount of the substance, but on the actual substance and the amount imported or to be imported. It is consistent with the high risk and high reward nature of the activity that Parliament has decreed that the risks of being caught or detected are correspondingly high and are not dependent on proof of knowledge of the nature and quantity of the substance.

Proof of actual knowledge of possession or importation of a commercial quantity is not necessary for proof of an offence of possession or of attempting to obtain possession contrary to s233B(1)(c) of the Act. In R v Kok Bin Lee and Others (1990) 47 A Crim R 187, customs officers intercepted a parcel from Thailand. A clock inside the parcel contained a total of 2,035 grams of 78% pure heroin. All but 20 grams was removed and the residue was mixed with glucodin to make up the original weight. The three defendants became involved after the parcel was delivered to its designated address. It was opened by one of the defendants, who discarded the contents when they were found to be apparently worthless. All three defendants were convicted of possessing the 20 grams of heroin. They were also charged with attempting to obtain possession of the total amount which had been intercepted. The trial judge directed an acquittal of that charge on the ground that the intention was to obtain what the parcel contained when delivered, and there was no evidence that the defendants knew of the actual amount imported. He considered that, unless there was knowledge of the extra quantity, they did not have the requisite mens rea of the wrongfulness of the act. A Crown appeal was allowed by the Court of Criminal Appeal of Western Australia. The Court of Criminal Appeal held that it must be proved that the accused intended to import something which was known to the accused to be a prohibited import. It was not necessary to prove knowledge of the actual quantity. Evidence pointing to the defendants' belief that the parcel contained an unknown quantity of heroin which had been imported was sufficient to sustain an inference that each of them intended to possess whatever that quantity was. It would be surprising if such an inference were sufficient to support a conviction but insufficient to justify the maximum penalty where the amount imported was a commercial quantity.

In my opinion it was not necessary to prove before the sentencing judge knowledge of the appellants that the actual amount of heroin involved was the commercial quantity in order to justify the penalties imposed.

If I am wrong in that conclusion, and proof of knowledge that the amount involved was a commercial quantity was necessary in order to sustain the penalty, then I consider that there was evidence on which such knowledge could be properly inferred, notwithstanding the finding of the sentencing judge on which the appellant Yu Shing Cheng relied.

This appellant argues that he did not agree to or admit the particulars, and maintains that at all times he denied that he was knowingly concerned in the importation of "about 9,350 grams of heroin being not less than the commercial quantity". He submits that he was sentenced on the basis of his counsel's submission that he was not aware of this quantity of prohibited import, nor that it was heroin, but rather that he believed he was concerned in the importation of two small quantities of cocaine.

The appellant pleaded guilty to the charge as particularised. The particulars were that he was "knowingly concerned in the importation into Australia of a prohibited import to which section 233B of the Customs Act 1901 applies, namely about 9,350 grams of heroin, being not less than the commercial quantity". As I have already pointed out, the plea of guilty amounted to a formal admission of the charge and its elements and as to the particulars of the offence. In the way that the particulars are drawn, it may be a nice question as to whether the appellant was admitting being knowingly concerned in the importation of a prohibited import, which import happened to be about 9,350 grams of heroin, or whether he admitted being knowingly concerned in the importation of a prohibited import, knowing that the prohibited import was about 9,350 grams of heroin. If the latter, he has made a formal admission of his state of knowledge. However, consistent with my previously expressed view as to what is to be established to prove the offence, and what then has to be established to fix the possible penalty range, I do not consider that it was necessary for him to plead to knowledge of the quantity of the prohibited import. I would not regard his plea as an admission of such knowledge.

Was it established that he knew that the substance involved was not less than the commercial quantity? The argument that he did not was based on what was said on his behalf by his counsel in submissions. She said (at AB195):

"MS POWELL: So what we say is this: Our instructions with respect to Joe (Yu Shing) Cheng's participation in this matter is that some period, and we cannot say with any precision, but some period prior to our collection of the crates we were contacted by Mr Vadasz's client Chan and we were asked - HIS HONOUR: That's Bach An Chan. MS POWELL: Bach An Chan and asked whether our address could be used for a consignment. What we believed at that stage we were involving ourselves in was allowing our address to be used for a consignment and that we would go and collect from the airport two small packages with cocaine in them. We agreed to do that and in consideration for doing that we were to receive the sum of $6,000. We did not receive that money. When we attended as advised at the airport to collect the two small packages, as we told the witness Spencer Hills, whose statement your Honour has before you, we arrived, we saw that there was a crate and we were then told that there were four other crates the same size. As a result of that we were unable to transport the crates without hiring a delivery vehicle to do that and so we thereupon arranged for the transportation of the crates to our address at Fredrick (sic) Street and then of course we took no further part after it was collected from that address and moved on. So that is what I thought it was important that we say what we say our participation in the matter was and that's the extent of it."

His belief that only two small parcels were involved was supported by deposition of a Mr Hills, a man who used to call at the appellant's house to collect the rent. The passage of Mr Hills' deposition read to the sentencing judge (at AB196) was as follows:

"I can't remember exactly how the conversation went but Joe said that that day he had to collect two small parcels from the airport or customs, I'm not sure which. Joe said that when he went to Customs or the airport a guy brought out a crate and Joe thought 'Shit' it was big. The guy said there were 4 other crates the same size. He told me that he was suppossed (sic) to pick up two small packages with 'Coke' in them. I thought he meant this to mean drugs. He told me that when he went there he was told it was 360 kilograms and that if it was over 250 kilograms the guy was suppossed (sic) to check it or inspect it again. He told me that because the day was so hot the guy told him not to worry about it. Joe said he thought he was lucky not to have it checked again. I can't remember exactly how the conversation went, but at one point Joe told me that he was getting $6,000. I thought that he meant that he was getting 6 grand for collecting the parcels. He told me it was worth 50 million dollars and that he didn't get enough for collecting it. He was pretty mad about the guy that told him to collect it because he was told it was only going to be two small parcels. He said even one of the crates wouldn't fit in the back of his car, so he had to get a courier to deliver it to Frederick Street. I told him that I had seen the van pull up the front earlier that day. There was some other conversation about going to gaol if you got caught with a couple of ounces but he had collected kilos, I can't remember if he said how many kilos. Joe had said to me about 2 or 3 weeks prior to this that he might be going to Sydney. I mentioned about going to Sydney again, but this time, he said 'No, don't go'."

On a subsequent occasion the appellant's counsel repeated the submission that when the appellant went to the airport to collect the consignment, he did not know that it contained five large crates, and that he went to collect it in his own car - a vehicle which proved inadequate for the purpose. It was after that that he arranged for delivery by means of a more appropriate vehicle.

The sentencing judge included the following observations when imposing the sentence on this appellant (AB289):

"Yu Shing Cheng you knew Bach An Chan. He asked you to allow the goods to be sent to your flat. Through your counsel, you say that you believe that only two small parcels of cocaine were being sent to you. You were to be paid, you say, $6,000 for your involvement. With some diffidence, I am prepared to accept what has been said on your behalf. There is one fact which supports your assertion that you believed that the parcel would be much smaller. In a conversation with Spencer Hills on the evening that the pedestals came to your flat you told him that, when you went to the airport to collect the goods, you were expecting to receive two small parcels. He said that you had said that you were surprised when you saw a large crate and were told that there were four more. You had thought that you could collect them in your motor car. Instead you had to arrange for the crates to be delivered. Your role was limited to that of providing the address to which the goods would be sent and in collecting the goods. Not long after the crates arrived at your flat they were unpacked and the pedestals were removed to Winifred Street. You took no further part."

It can be seen that the sentencing judge's acceptance of his counsel's submissions related only to the appellant's state of mind until the time when he attended at the airport to collect the consignment. From that point on, whatever may have been his previous belief, he can have been under no misapprehension that the consignment he had been asked to collect was not two small packages with cocaine in them but five very large ones. Although he could no longer hold the belief that two small parcels were involved, he nevertheless continued to participate in the operation. His belief as to what he was then involved in must have changed from the moment he was told the nature of the consignment at the airport.

Not only was his previous state of belief proved wrong, but he knew that he was to receive $6,000 merely for providing a consignment address. He knew that the pedestals, having been unpacked from their crates at his house, were moved on to somewhere else. By his account to Mr Hills, he believed that the consignment was worth $50,000,000, that he had collected "kilos" and that a trip to Sydney could be involved.

No findings were made by the sentencing judge as to the appellant's state of knowledge other than those to which I have referred. For reasons which I have expressed, such a finding was not necessary, and it appears that the sentencing judge took a similar and, I would respectfully say, a correct view in that regard. However, from all the circumstances placed before the sentencing judge, the inference is irresistible that the appellant knew that he was dealing with a substantial quantity of a prohibited import and not just two small parcels, but a quantity well in excess of a commercial quantity. In my opinion the appellant was correctly sentenced on the basis referred to in s235(2)(c)(i).

So far as the appellant Gang Cheng is concerned, the sentencing judge made the following findings (AB289):

"Gang Cheng, you were recruited by Bach An Chan to drive the pedestals to Sydney. You were to be paid $3,000 as well as $1,000 for the expense of renting the car in which to drive the pedestals. You arranged for the hire of the Landcruiser. You helped load the pedestals into the Landcruiser. You then drove to Sydney and arranged for the delivery to someone else in Sydney. You knew that drugs were involved. However, you say you did not know the quantity of the drugs or what kind of drug it was. I am prepared to accept your explanation, although I add it must have been obvious to you that a substantial quantity of drugs was involved once you had seen the pedestals."

I respectfully agree that it must have been obvious to this appellant that a substantial quantity of drugs was involved once he had seen the pedestals. From the nature of his part in the operation (driving the vehicle to Sydney with the pedestals) and the amount he was to be paid for that purpose must have indicated to him that it was not less than a commercial quantity. I would hold that he too was properly sentenced on the basis set out in s235(2)(c)(i) of the Act.

Section 16G Crimes Act 1910

Section 16G of the Crimes Act provides:

"16G If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly."

That section took effect on 17 July 1990. Since 1 August 1994 South Australia has been a State where neither head sentences nor non-parole periods are subject to remission or reduction.

All three appellants complain that the sentencing judge failed to give effect to this section in imposing the sentences on the appellants.

The cases indicate that the general level of reduction brought about by the application of s16G is of the order of approximately one-third of what would have applied under the former regime.

The sentencing judge made no reference at all to s16G. It was not referred to by any counsel who made submissions, including counsel for the DPP. In each case his Honour did make specific reference to a number of factors leading to the reduction of the sentences from a notional starting point. In respect of each appellant the sentencing judge said (AB292):

"In other circumstances, Yu Shing Cheng, a sentence of 18 years imprisonment would have been appropriate. Given your plea of guilty, your previous good character and the fact that you will be serving this sentence far from your family, in a country which is not your own, I fix a head sentence of 14 years. Your prospects of rehabilitation are very good. I also have regard to the fact that you are still very young. In all the circumstances, I think that a non-parole period of 7 and a half years is appropriate. Gang Cheng, you also have no prior convictions. You are aged 31 years. You were born in Beijing, and came to Australia in 1988. You took up the offer of permanent residence made to Chinese students after the incident in Tienamen Square. You did not pursue your studies. You tried various kinds of employment. In the year or so before your involvement in this crime you were working in Chinese restaurants. You indicated that you would plead guilty at an earlier stage than Yu Cheng, and are entitled to a slightly higher discount for doing so. Your culpability is at the same level as Yu Shing Cheng. I think the starting point for determining the appropriate sentence is, again, 18 years imprisonment. I note that, like him, you will have to serve a long period of imprisonment in a country which is not your own. In all the circumstances, I fix a head sentence of 13 and a half years imprisonment. I believe you should serve the same non-parole period of 7 and a half years, as will be served by Yu Shing Cheng. Although you pleaded guilty earlier, he is very much younger than you and there is very much the same degree of culpability. Bach An Chan, you are aged 30 years. You were born in Vietnam and came to Australia with your family in about 1984. You were continuously employed by the one employer from 1987 to 1997. Unfortunately for you, you gave up that employment and went with your girlfriend to Brisbane, where she was doing work experience in the hospitality industry. You could not gain work there. You returned to South Australia and were unemployed for several months before your involvement in this crime. As I have mentioned, you were more deeply involved than either Yu Shing Cheng or Gang Cheng. As I have said, you must receive a higher sentence than that to be served by either of them. But for your plea of guilty, I would have sentenced you to 20 years imprisonment. I have regard to your plea of guilty. In all the circumstances, I fix a head sentence of 16 years imprisonment and a non-parole period of 11 years."

One would have perhaps expected the learned sentencing judge, if he had brought s16G into account, to have mentioned it in that context, but he did not. If, in fixing the sentences the sentencing judge was doing so by reference to other sentences after s16G had been taken into account, he could be considered to have made due allowance for it. However, if his basis of comparison comprised sentences where s16G has no operation, or comprised notional sentences before making the appropriate allowance under s16G, then he fell into error.

Counsel for the DPP referred the sentencing judge to two particular cases. The first was R v Choon Sien Tee [1994] SASC 4434; (1994) 61 SASR 501. The quantity imported was 2,003 grams of heroin. The defendant was a courier who had brought the material from Bangkok. He had cooperated with police, but was able to tell them very little. On a prosecution appeal the sentence was increased to twelve years, with a seven month non-parole period. However, that was before remissions were abolished in this State, and the equivalent head sentence now would be of the order of eight years. That factor was not drawn to the sentencing judge's attention.

The other case was R v Kwong Yue Cheung (1997) 97 A Crim R 283, a decision of the Court of Criminal Appeal of Western Australia. The defendant in that case was convicted of being knowingly concerned in the importation of 32.1 kilograms of heroin. He pleaded guilty. He had assisted in delivering the drugs to a ship in China and then assisted with the unloading when the ship arrived at Geraldton. The drugs were put into his own car. He was described as being third or fourth rung in the hierarchy. He had no previous record. The sentence imposed was twenty-two and a half years, after allowing two and a half years of pre-sentence custody. In other words, the effective head sentence was twenty-five years. The sentence also reflected a plea to possession of the same drug. No mention is made of s16G of the Crimes Act, but sentences in Western Australia are subject to remissions. The trial judge therefore allowed a period of thirty months for pre-sentence custody when in fact the amount served was twenty months. The equivalent head sentence in this State would be of the order of seventeen years. Once again, none of those features were drawn to the attention of the sentencing judge.

The learned sentencing Judge was therefore referred to only two cases by counsel for the DPP in both of which the sentences were subject to remissions, and no mention was made of that fact or of s16G of the Crimes Act.

His Honour's attention may have been drawn to the provision indirectly by way of the sentencing remarks of Chief Judge Blanch upon sentencing Ngai Sze Law on 5 August 1998 in the District Court of New South Wales. In the course of those remarks the Chief Judge referred to the need to reduce a notional sentence of fifteen years by one-third by virtue of the Commonwealth Crimes Act. However, in a report to the Acting Registrar of this Court upon the institution of these appeals, the sentencing judge observed that he had been informed of the sentence imposed on Law and said "I took the view that, given the substantial amount of heroin involved, the seriousness of the offence and the high penalties prescribed by the Customs Act, the sentence was quite inadequate". It is possible that the perceived disparity might have been accounted for by the application of s16G to the notional starting point in the case of Law.

If his Honour did take into account s16G, then the notional starting point for Yu Shing Cheng and Gang Cheng was twenty-seven years, and in the case of Bach An Chan, thirty years. As will be seen below, these are very high starting points, tending to confirm the suggestion that s16G may have been overlooked.

Given the significance of the effect of the section on the actual outcome of a sentence and the sentencing judge's failure to mention it, and particularly given the two cases to which he was referred, I consider that the appellants have demonstrated that a relevant sentencing consideration was not taken into account, and that the sentencing process has miscarried. In the circumstances it becomes necessary for this Court to consider the appropriate sentences afresh. It does not follow, however, that the sentences will be substantially different or that they will necessarily be reduced by approximately one-third. That will depend on factors yet to be considered.

All three appellants complain of the great disparity in sentences imposed on the appellants when compared to the earlier sentence imposed by Chief Judge Blanch in respect of Ngai Sze Law. As has been pointed out, the Chief Judge began with a notional sentence of fifteen years. That took into account Law's active participation in the offence and other matters personal to the defendant, including his lack of any criminal history, the unlikelihood of his re-offending, his cultural and language isolation whilst in custody and his plea of guilty. That notional sentence was then reduced by one-third on account of s16G of the Crimes Act. Bearing in mind his youth (he was aged 22 at the date of sentence) and the other subjective matters referred to, Chief Judge Blanch fixed a non-parole period of six years. Law had been sentenced before the learned sentencing Judge sentenced these appellants. We were informed that since then Law's co-offenders in New South Wales, after being found guilty by a jury, were both sentenced to twelve years with a non-parole period in each case of seven years. We were informed that all three New South Wales sentences are the subject of appeals by the DPP to the New South Wales Court of Appeal, but that the appeals have not yet been heard.

All three appellants argued that there was too great a disparity in the sentence imposed on the three appellants in this State when compared to the earlier sentence imposed by Chief Judge Blanch in respect of Law. It was said that the New South Wales participants were more actively concerned in the importation, Law having driven the vehicle containing the pedestals to his home, and all three of them having been involved in the opening of the pedestals and, one infers, had the scheme not been interrupted, in the further distribution in New South Wales of a large quantity of heroin. Unlike their South Australian counterparts, they plainly knew the amount of heroin involved. It was argued that the disparity with Law's sentence gave rise to a "justifiable sense of grievance on the part of the offender" and to give the appearance that justice had not been done within the principles concerning sentence disparity enunciated by the High Court in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

Without dwelling on the argument at this stage, for the appeal must be allowed for other reasons, it will become apparent that I consider that the New South Wales sentences as they stand and the sentences imposed on the appellants, do result in unacceptable disparity. However, I will need to return to this topic when considering the sentences that should now be imposed.

All three appellants, in addition to the arguments I have already mentioned, allege that their respective sentences are manifestly excessive. Once again this ground need not be considered independently at this stage. I will return to it after consideration of the sentences that should now be imposed.

Approach to Sentencing - Matters Relevant to the Offence

At the outset one must avoid the temptation of concentrating too greatly on one or two particular cases which might be said to reflect similar characteristics. The use of actual sentences in other individual cases can, on occasions, be misleading, and is likely to lead to error: R v Lawson (1997) 142 FLR 323. However, one can and should have regard to the general pattern of sentencing: R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti [1982] 2 NSWLR 104 at 107; R v Lawson (supra) at 324. Nevertheless, even when considering such a range or pattern, it must be applied with care, as some cases may not fit within that pattern.

By far the greatest number of sentences under s235 of the Customs Act and appeals against such sentences occur in New South Wales, and it is appropriate to give due weight to decisions of those courts, at least in identifying the pattern or range of sentences.

Convenient summaries of most of the recent sentencing decisions from all States appear in appendices to the reasons for judgment of both Hulme and Hidden JJ in the recent New South Wales case of R v Spiteri [1999] NSW CCA 3. It is apparent from those summaries and the reports of the cases summarised, where those cases are reported, that there is and can be no particular tariff or starting point. Rather, one can detect a range of penalties for different types of offence. What can be said, however, is that sentences generally increase according to the quantity of the drugs involved, and that there are significant differences in sentences between couriers, organisers or supervisors and principals in respect of whatever quantity may be involved. It is also clear that substantial discounts have occurred for cooperation and assistance given to the police.

Some of the New South Wales cases, however, have identified sentencing ranges or patterns for various types of offence. In R v Ferrer-Esis (1991) 55 A Crim R 231 at 236-237 Hunt J (with whom Gleeson CJ and Lee CJ at CL agreed) identified a recognised pattern of sentencing for couriers of "substantial quantities" of heroin prior to 1989 as being within a range of 12-16 years' imprisonment. Minimum terms were generally fixed within the order of 60% to 75% of the head sentence. He noted that, taking into account the effects of s16G of the Crimes Act, that translated to a head sentence range of between eight and half and eleven years.

In R v Bernier (Unreported, 19 May 1998) the New South Wales Court of Criminal Appeal considered that the range referred to in Ferrer-Esis should be seen as more appropriate for offences in respect of quantities at the lower end of the commercial range. In the case of cocaine, that would embrace amounts up to about 3-5 kilograms. The Court also considered that the range referred to in Ferrer-Esis assumed a plea of guilty and prior good character. Although R v Bernier related to cocaine, the Court also held in Ferrer-Esis that sentences involving cocaine should be no lower than sentences involving heroin.

In R v Bernier the Court also considered a range of sentences for the importation of cocaine in the high trafficable and low commercial range where the trafficker was properly described as being a principal, and in such circumstances identified a range of head sentences of between nine and fourteen years.

In R v Spiteri (supra) Hidden J referred to a number of schedules which had been placed before the New South Wales Court of Criminal Appeal. The first involved the importation of cocaine in quantities of between two and seven kilograms, where the offenders were couriers, and most of whom pleaded guilty. The range of head sentences was from seven to twelve years, with a non-parole period of four to eight years.

A second schedule involving offences concerning a similar quantity and range of heroin, where the offenders were also couriers who pleaded guilty indicated a range of between five and a half and twelve years, with a non-parole period between four and eight years. The Court pointed out that in both schedules the lower sentences for the most part related to persons who provided assistance to the police.

The third schedule, comprising only three cases after one had been discounted for special factors, related to offences committed by principals, relating to the importing of cocaine or heroin in quantities of between two and ten kilograms. The sentencing range was twelve to thirteen years, with a non-parole period of eight to nine years. Given the relatively small sample, this schedule must be viewed with some care.

All the sentencing ranges to which I have referred had been arrived at following pleas of guilty and after making allowance for the operation of s16G of the Crimes Act.

The sentencing judge in this case did not indicate precisely the cases to which he might have made reference in determining the head sentences. In the course of submissions he said that he had looked at a number of cases and observed (AB189) that there were sentences in other States in other matters where the amount of heroin had been less than this and the sentences had been "really quite substantial, fifteen years and so on". There undoubtedly have been sentences of that level for lower quantities of heroin, but in each case the defendant was much more than a courier and had a substantial level of involvement either as a principal or high up in the organising chain. I have already referred to the two particular cases to which the learned sentencing judge was referred.

For the sake of convenience I repeat the sentences imposed in this case:

Yu Shing Cheng: Head sentence fourteen years; non-parole period seven and a half years.

Gang Cheng: Head sentence thirteen and a half years; non-parole period seven and a half years.

Bach An Chan: Head sentence sixteen years; non-parole period eleven years.

Given the several ranges or patterns of sentence to which I have referred, it would appear that these sentences are substantially out of line with a sentence which might be considered to be appropriate to the amount of heroin involved in this case and the levels at which the various appellants were operating. However, as I have already said, the range or pattern is not to be rigidly adhered to if there are other circumstances which demand a higher penalty in the case in question. However, in these cases I am not aware of any such circumstances, and even if the apparent failure to consider s16G of the Crimes Act had not been made out, I would hold that the sentences imposed were manifestly excessive such as to justify interference by this Court. Having said that, I should also record that the learned sentencing Judge had a difficult and (for this Court) an unusual sentencing task. The amount of heroin intercepted was said to have been the largest ever intercepted in this State. The learned sentencing Judge received quite inadequate, even misleading assistance from counsel and particularly from the DPP, whose national resources should have provided more assistance than was done.

It remains to consider what sentences should have been imposed in the circumstances. In doing so I have had regard to the quantity of heroin involved, the level at which the appellants were apparently operating, their respective levels of culpability and their own personal circumstances. The conclusions I have reached allow for the operation of s16G of the Crimes Act.

I have already referred to his role in collecting the drugs from the airport and taking them to his house where the pedestals were unpacked from their crates. He was aged 19 at the time of the offence. His parents live in Hong Kong. He came to Australia as a secondary school student. He left school in the middle of year 11 and later enrolled in an accounting course at a TAFE college. His parents encountered financial difficulties and were unable to continue to support him in Australia. He sought employment in restaurants but the sentencing Judge described that as "unsuccessful".

He had no prior convictions, and a relevant factor identified by the learned sentencing Judge was that the sentence would be served in a country not his own and away from his family. He had expressed shame and remorse for his involvement, and the sentencing judge considered that he had excellent prospects of rehabilitation. He pleaded guilty, but as the sentencing judge pointed out, none of the appellants made full and frank admissions to the police. Although that might well be driven by fear of possible retribution by those controlling the operation, that fear cannot justify any discount in lieu of rendering assistance. Whilst some credit must be given for the plea of guilty, a conviction was almost inevitable, as it was a strong case against him. In my opinion, the factors most favourable to this appellant are his previous good record, his level of cooperation with prison authorities since his arrest and his relative youth.

In my opinion an appropriate head sentence in his case is nine years with a non-parole period of five years.

I have already described his role in the operation in transporting the drugs from Adelaide to Sydney. The learned sentencing Judge considered that he had much the same level of culpability as Yu Shing Cheng. I disagree. In contrast with that of Yu Shing Cheng, Gang Cheng's role, particularly in the hiring of the Toyota Landcruiser, involved significant dishonesty and deception. He too has no prior convictions, and I have already referred to the sentencing Judge's observations as to his personal circumstances. He was aged 31 at the date of sentence. The sentencing judge considered that his head sentence should be six months less than that of Yu Shing Cheng because of his earlier plea. However, as in the case of Yu Shing Cheng, a conviction was almost inevitable. Gang Cheng does not have the advantage of youth attributable to Yu Shing Cheng. Having regard to that and the greater level of culpability, in my opinion the appropriate head sentence in his case is ten years with a non-parole period of six years.

This appellant plainly organised the Adelaide end of the operation. It was his job to supervise and manage at every point the movement of the heroin from Adelaide to Sydney. He did more than that. He flew to Sydney to supervise its delivery to its recipients there, obtaining his ticket under a false name. He recruited the other two appellants. He was plainly operating at a higher level than a mere courier. He was not frank with the police, and the learned sentencing judge found that he was less than frank with the Court and tried at all times to minimise his role. Whilst it is difficult to be precise about the level at which he was operating, in my opinion his head sentence should be thirteen years with a non-parole period of nine years.

I have reached these conclusions without reference to the sentences imposed in the District Court of New South Wales in respect of Ngai Sze Law (ten years with a non-parole period of six years) and Nelson Tak Fat Wong and Jackie Kai Chu Leung (both twelve years with a non-parole period of seven years). We were provided at the hearing of the appeal, without objection, with the sentencing remarks made in respect of Ngai Sze Law. We were later supplied, again without objection, to the sentencing remarks published in respect of Nelson Tak Fat Wong and Jackie Kai Chu Leung. We also invited and received further written submissions on the question of penalty in the light of those additional sentencing remarks.

I have already described Mr Law's role in receiving and breaking open the pedestals. The sentencing judge in that case was unable to draw any firm conclusions about the relative parts played by the three men concerned in Sydney. He was treated, however, as a middle person. He was aged 22 at the date of sentence and had come to Australia with his family from Hong Kong. He had no prior criminal history, and was unlikely to reoffend. The sentencing judge regarded his cultural and language isolation in custody in Australia as being of some significance. He was clearly operating at a higher level than either Yu Shing Cheng or Gang Cheng, and a number of his relevant personal characteristics bear similarities to those of both Yu Shing Cheng and Gang Cheng. Wong and Leung were found guilty after a trial. Both had been present at the breaking open of the pedestals. Both were sentenced on the basis that they were more than couriers, but were "middle men". Both were to be engaged in an ongoing process of ultimate supply. The sentencing judge considered that Law was not, although he had also been sentenced as a "middle person". Wong and Leung were considered to be closer to the ultimate evil than Law. Leung had no previous convictions. Wong had two prior convictions but the sentencing judge did not regard either the nature of them or any other aspect of them to be of significance for sentencing purposes. Both were in their twenties, having come to Australia from Hong Kong.

I am proposing a slightly lower sentence than that imposed on Law for Yu Shing Cheng, the same sentence as Law for Gang Cheng and a significantly greater sentence for Bach An Chan, who would appear to have been operating at much the same level as Mr Law. The sentence I am proposing for Bach An Chan is also greater than the sentence imposed in NSW on both Wong and Leung. On that basis it could be argued that there is a disparity between the sentence imposed on the NSW offenders and those which I am proposing in this case. The question is whether that should cause me to modify the sentences I am proposing.

Taking into account the respective roles of the several players in the operation, I am prepared to accept that there is a disparity between the sentence imposed by the District Court in New South Wales on the NSW offenders and those that I am now proposing. However, whilst a majority (Gibbs CJ, Mason, Wilson and Dawson JJ) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 held that mere disparity between sentences imposed on co-offenders is not of itself a ground for the intervention by an appellate court, if the difference is manifestly excessive and if the disparity engenders a justifiable sense of grievance or gives the appearance that justice has not been done, the higher sentence may still be interfered with even though it may be free from error except in so far as the discrepancy itself constitutes or causes error. See also Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Gummow J at 322-323.

This Court had occasion to state further principles derived from Lowe v The Queen in R v MacGowan (1986) 42 SASR 580 at 582-583. As they are principles which will affect this Court in determining what should be the appropriate sentences for the three appellants, it is appropriate that they be repeated:

"1. Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal on appeal by the Attorney-General or the offender even though the sentence under review, considered apart from disparity, might be regarded as within the permissible sentencing range. 2. Sentences imposed by different judges on co-offenders should also be proportionate to the respective degrees of culpability and the individual circumstances of the co-offenders. In such circumstances, a sentencing judge should ascertain the punishment which has been imposed upon any co-offender previously sentenced. He should endeavour to assess a sentence which fairly reflects any relevant distinctions. If, however, the earlier sentence is, in the opinion of the judge imposing the subsequent sentence, outside the range of sentences properly applicable to the case, he may legitimately impose what he regards as the appropriate sentence, leaving any correction of disparity to the Court of Criminal Appeal. The sentencing judge should give reasons explaining any disparity between the sentence which he imposes and earlier sentences imposed on co-offenders. 3. Marked disparity of sentences imposed upon co-offenders by different judges is a ground upon which the Court of Criminal Appeal may intervene on an appeal by the Attorney-General or an offender. If both sentences are within the maximum authorized by law and are within the range of sentences properly open on the facts of the case, the Court of Criminal Appeal is not bound to intervene. In such circumstances disparity, although a ground for interference, will not necessarily lead the Court of Criminal Appeal to interfere. It is a matter for the discretion of the Court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case."

The situation referred to in paragraph 2 above is little different in the instant case. However, there is one important difference. This Court as presently constituted, and as now called upon to impose the correct sentence on the South Australian appellants, is not at the same jurisdictional level as the District Court of New South Wales. Although this Court can exercise no appellate jurisdiction from the District Court of New South Wales, there is a greater reason in the hierarchy of criminal courts in Australia for this Court to reach its own conclusion, notwithstanding that it may create disparity with sentences imposed by the District Court of New South Wales.

While there is disparity, and in the case of the sentences imposed by the learned sentencing Judge, that disparity might well be described as manifestly excessive, I do not need to consider whether the differences between what I am proposing and the current sentences on the NSW offenders are such that they would necessarily require interference on that ground if this Court were sitting on appeal from them. If the NSW sentences do inspire a sense of grievance, then that may have to be tolerated in the public interest. In all the circumstances if this Court endorses my view as to what are the appropriate sentences, then this Court would be shrinking from its own responsibility in not imposing those sentences. As King CJ said in R v MacGowan (supra), to establish what might be regarded as parity with the NSW sentences would be felt to compound an error which would be unacceptable to the public conscience.

This is particularly so in the light of the outstanding appeals to the New South Wales Court of Criminal Appeal. It will be for that court to make up its mind about the adequacy of the New South Wales sentences, and in doing so it may have regard to but will not be bound by this decision. It will be for the parties to take such steps as they may be advised if, at the end of that process, there is a disparity which engenders a justifiable sense of grievance and which gives the impression that justice has not been done.

In reaching this decision, I have had regard to all the requirements of s16A of the Crimes Act. In accordance with the requirements of s17A of the Act I have considered all other available sentences, but I am satisfied that no sentence, other than a period of imprisonment is appropriate in each case. This is because of the gravity of the offences, the obvious need for deterrence and the scale of penalties imposed by courts throughout Australia for similar offences.

I would therefore impose the following sentences:

All sentences and non-parole periods should date from the day on which each was taken into custody, namely Gang Cheng and Bach An Chan, 7 November 1997, and Yu Shing Cheng, 8 November 1997.

WICKS J. I agree with the orders proposed by Bleby J for the reasons he gives.