R v KEVENAAR & ORS

IN THE COURT OF CRIMINAL APPEAL 60530/03 60531/03 60529/03

REGINA v Theodorus KEVENAAR REGINA v Marinus DEDOES REGINA v Jin Rong PAN

1 HULME J: The three Respondents to this Crown appeal were charged with, on or about 17 September 2002, attempting to commit an offence against s233B(1)(c) of the Customs Act 1901 in that they attempted to have in possession prohibited imports to which s233B of that Act applied, viz. narcotic goods consisting of a quantity of 3,4-Methylenedioxmethamphetamine being not less than the commercial quantity applicable to that drug which had been imported into Australia in contravention of that Act. 3,4-Methylenedioxmethamphetamine is commonly, and will be in these reasons, referred to as MDMA or Ecstasy. The maximum penalty provided for their offences is life imprisonment and a fine not exceeding $750,000.

2 The three persons were arrested on 17 September 2002. Their trial was scheduled to commence on 12 May 2003. On that day all 3 pleaded guilty to the charge, Messrs Kevenaar and Dedoes having indicated during the previous week that that was their intention. On 26 September a hearing on the question of sentence occurred. These proceedings did not conclude and were adjourned to 30 October. There was some hearing on that day and the matter stood over to 10 December for sentence. Also on 30 October an order was made as to the time any written submissions should be supplied. On 10 December 2003 the Respondents were sentenced by Acting Judge Mahoney.

3 Mr Kevenaar was sentenced to imprisonment for a period of 3 years including a non-parole period of 21½ months, both such periods to commence on 17 September 2002. His Honour indicated that in arriving at this figure, he had allowed a discount of 1 year for Mr Kevenaar's plea and then discounted the resulting period of 6 years by 50% for assistance to the authorities. These matters indicate that his Honour's starting point for Mr Kevenaar was 7 years and the total discount was over 57%. It is appropriate to note also that Mr Kevenaar's non-parole period will expire on 30 June next.

4 Mr Dedoes was sentenced to imprisonment for a period of 4 years including a non-parole period of 28½ months, both such periods to commence on 17 September 2002. His Honour indicated that in arriving at this figure his starting point was 7 years from which he had allowed a discount of 1 year for Mr Kevenaar's plea and then discounted the resulting period by 30% for assistance to the authorities. The result indicates that his Honour must have allowed a further reduction of 2 months or so along the way.

5 Mr Pan was sentenced to imprisonment for a period of 6½ years including a non-parole period of 43½ months, both such periods to commence on 17 September 2002. His Honour indicated that in arriving at this figure he had allowed a discount of 1 year for Mr Pan's plea and a further 6 months for assistance to the authorities. These matters indicate that his Honour's starting point for Mr Pan was 8 years.

6 The Crown contends, inter alia, that the sentences imposed were manifestly inadequate and that his Honour erred in a number of respects in arriving at them.

7 A summary of the events which led to, constituted, and surrounded the offending with which the Respondents were charged appears in his Honour's remarks from which I quote:-

"(I)n 2002 arrangements were made in Holland to send the ecstasy to Australia and to position certain Dutch Nationals, at least Kevenaaar, Dedoes and Pan, in Sydney. Obviously the purpose of those three being in Sydney was to facilitate the dissemination of the ecstasy drugs into the market in Australia.

On 8 September 2002 Kevenaar and Dedoes both arrived in Sydney by air on Flight CX111. Under arrangements which had been made from Holland, Kevenaar was booked into the Park Regis Hotel in room 907, and Dedoes was booked into the Royal Garden Hotel in room 1007. On 9 and 10 September 2002 the relevant authorities in Holland intercepted two packages and conducted tests and ascertained that those two packages contained illicit substances.

On 11 September 2002 Pan arrived by air in Sydney on Flight CX111 and booked into the Corus Hotel in room 1711. That reservation had also been organised from Holland.

On 13 September 2002 the packages were put onto a Malaysian Airlines Flight and sent to Sydney. The Dutch authorities had notified the Australian authorities of what was happening. On 14 September 2002 the packages arrived in Sydney. There they were intercepted by the Australian Federal Police and the Customs authorities. They were examined then tested. When it was found that they contained suspicious substances, the testing confirmed the suspicions. The Australian authorities repackaged the two items and then organised what is described as a "controlled delivery" of one of them to Mr Kevenaar at the Park Regis Hotel.

On 17 September 2002 at 10.30am the "controlled delivery" was carried out. Kevenaaar accepted receipt of the package in the foyer of the Park Regis Hotel and signed for it. At 8pm on that day Pan booked himself for that night only into room 805 in the Park Regis Hotel. At 8.22pm on that day Pan went to room 907 at the Park Regis Hotel where he spoke to Kevenaar and Dedoes.

8 The package was then opened. Mr Pan also made a phone call, in Mandarin, to a Mr Li. About half an hour after entering, Mr Pan left the room. All 3 were shortly thereafter arrested.

9 It should also be mentioned that at some stage or stages while in Sydney, Messrs Kevenaar and Dedoes ran out of money. They approached Mr Pan who provided or arranged the provision of further support, presumably by way of funds.

10 Acting Judge Mahoney found that the level of involvement of Messrs Kevenaar and Dedoes was about equal and found that they could not be regarded as much more than peripheral on the very edge of the operation. His Honour thought that Mr Pan was significantly more involved but slightly less than a middle man. His Honour observed:-

"Clearly those further up the hierarchy trusted him to be sent to Australia, if I can use the every day expression "as a minder" of Kevenaar and Dedoes. He was also in Australia to facilitate an unbroken chain of passage of the drugs until they were ultimately sold on the streets… I reject his claim that he was unaware that ecstasy was a dangerous drug."

11 The ecstasy was contained in some 48,828 tablets containing 5,987.7 grams of pure MDMA. It seems to have been accepted that the street value of the tablets was of the order of $50 each.

12 Neither these details of the importation nor any of the remarks of his Honour which I have so far quoted were the subject of challenge in this appeal.

Subjective Circumstances 13 All three offenders were citizens of the Netherlands prior to their involvement in the activities with which the Court is concerned.

14 Mr Kevenaar was born in December 1978. He had been convicted in 1998 of breaking, entering and stealing or some similar offence. Mr Kevenaar gave evidence during the sentencing hearing and a report from Duffy Barrier Robilliard was tendered on his behalf. Because of the death of his father and subsequent illness of his mother he was placed in a children's home until he was 18. He is poorly educated. His Honour accepted a submission that he was an ex-garbageman - work he commenced at age 18 - with a bad back and out of work when recruited with the promise of a parcel of money and a trip to the other side of the world. His Honour said that he tended to accept the proposition that Mr Kevenaar had no idea that he was involved in drug importation on the scale which occurred.

15 His Honour accepted that his contrition was genuine and his rehabilitation well on the way, if not already achieved. His Honour also accepted that his experience in gaol had brought him face to face for the first time with a real opportunity to comprehend the ravages brought on peoples lives by drug abuse.

16 Although these were his Honour's findings, it is appropriate to record that that Mr Kevenaar told the author of the Duffy Barrier Robilliard report that "he took leave from this employment (housekeeping at a hotel) to come to Australia in September 2002". He also said that although he is now close to his mother who is angry and upset with him over his offending and did not want him to come to Australia, his home life had had many problems. He was placed in a children's home until he was 18, and in between his employment as a garbageman and hotel housekeeper, he had been employed as a cook. He reported that he drank very little alcohol and had never used illegal drugs. The report also records that Mr Kevenaar told the author that Mr Li, who engaged him, told him that "the job was about computer chips" but he always suspected that that was not true. He also asserted that he did not know very much about illegal drugs prior to imprisonment and indicated that he was to be paid on completion of the enterprise. Mr Kevenaar said that when the parcel containing the MDMA arrived, he was surprised how big it was and would not touch it. Although the questioning in this regard was not as extensive as it might have been, the tenor of the Mr Kevenaar's evidence was that he told the truth to the author of the report.

17 Mr Dedoes was born in November 1979. He was convicted in Holland in 2000 of stealing and was on probation at the time of the offence the subject of this appeal. He said that the items stolen were a pair of pants and that he had spent one week in gaol as a result. He also gave evidence during the sentencing hearing and a report from Mr John Taylor, psychologist, was tendered on his behalf.

18 His Honour said he was satisfied that Mr Dedoes had demonstrated genuine contrition, and that the psychological investigation of Mr Dedoes revealed that he was the sort of person who "sadly lacks much insight into the consequences of his actions". His Honour also said he accepted the instructions given by Mr Dedoes that the most that he expected to get out of his involvement was a trip to Australia and "3000 euros".

19 Otherwise his Honour recited information contained in Mr Dedoes' evidence or in the psychological report, in large part, without any express indication of accepting it. That information included that Mr Dedoes had had a "miserably deprived upbringing, having been in and out of children's homes and Salvation Army hostels for the bulk of his life before taking up life with" his de facto wife.

20 In fact the psychologist's report says that according to Mr Dedoes when he was 10 he was taken out of his home and put into a children's home for his own safety where he remained until he was 17. For a time he went home at weekends but had begun to steal from his stepfather and as a result of this stayed at the children's home all the time thereafter. His mother, to whom he had always been close, used to visit him in the children's home. Released from there at age 17 he attended a government-run skills project until 18½, leaving this program because he was still aggressive. He lived on the streets for 4-5 months and then he lived with the Salvation Army for about 2 years until he met his girlfriend when he was 21. The report also provides a history of Mr Dedoes' employment. It was with two labour hire companies for a combined period of 6 years involving him in a number of short term jobs in a labouring capacity but with "continuous employment since leaving school" at age 16.

21 Mr Dedoes told Mr Taylor that by the time he was 20 he was smoking cannabis several times a day and that in Holland smoking cannabis was legal. He denied having any other involvement with drugs. Mr Dedoes told Mr Taylor and said that his airfare and other travelling costs to Australia had been paid for and he was to be paid about 5,000 euros. The report goes on:-

"When asked to comment upon how he felt about the offence, he said he feels strongly that the drug trade is bad. He said that ecstasy is "a bad drug - I know of people who have been killed by that drug - it's the same as speed, heroin and cocaine - it makes me scared - it only has to be one wrong pill and it's over"."

22 The nearest Mr Taylor's report comes to providing support for Judge Mahoney's finding that Mr Dedoes lacked insight into the consequences of his action was contained in the following passages:-

"A degree of immaturity is evident in his personality adjustment in that he has inadequately developed personality structures to assist him in coping with difficult situations that might arise. This would result in a diminished capacity to initiate action and to regulate affect, impulse and conflict."

"His personality profile also does not reveal that he has a personality disorder but does suggest that he has a somewhat depressive and dependent personality adjustment… "His personality profile is also consistent with his very troubled life in his formative years."

… "It is felt that he would not have been able to exercise sufficiently mature judgment and decision making in accepting his role with regard to the present offence. He has been vulnerable and would have become a relatively easy target for those who asked him to become involved in the offence."

23 Even if one accepted Mr Taylor's opinions, they do not justify his Honour's finding."

24 Mr Dedoes has two children and a de-facto wife who has indicated she is prepared to stand by him.

25 There were also placed before His Honour some handwritten statements of Mr Dedoes. One indicates that he was in and out of children's homes for a period, in the case of three homes, because he stayed the maximum permissible year or two. In another he says, inter alia:-

"Since being incarcerated I have seen and felt first hand the destruction and despair drugs have on families it's not pleasant. And it's not a fun night out of harmless dancing and partying for the majority of drug takers. Not to forget their victims and families. Suffering after seeing this level of damage you add it up and you don't feel so smart at all. I made a bad judgment call and will take a more responsible lifestyle and have no more to do with drugs or criminal activities."(sic)

26 There seems to be no basis for his Honour's reference to 3000 euros which may have just been a mistake in transcription.

27 Mr Pan was born in August 1979. At the time of his arrest he was on probation, having been released after serving one month's custody in Holland for the offence of blackmail. His Honour accepted that the history of Mr Pan's early life, particularly from the age of 13, was absolutely appalling through no particular fault of his own. However, His Honour said he did not accept that Mr Pan's plea demonstrated genuine contrition and any contrition was more along the lines of being sad that he was caught. His Honour said that he was unable to say how far along the road to rehabilitation Mr Pan had travelled.

28 There was also tendered on Mr Pan's behalf a report from Anita Duffy of Duffy Barrier Robilliard which records that, according to Mr Pan, he had a small business which closed in June 2002. Thereafter he did some part-time work until he was invited to go to Australia for which he would be paid 3,000 euros to deliver to two men in Sydney and a further 2,000 euros which he could keep. It was only after he was in Sydney that he found that drugs were involved but even then did not think much of it because ecstasy was not a "serious drug in Europe." He is reported to have said that, for picking up the drugs from his co-offenders, he was to be paid an extra 5000 euros. Mr Pan gave evidence that he had told the truth to Ms Duffy.

29 The report records also that Mr Pan does not drink alcohol or smoke cannabis. He said that "he would have half a pill (of ecstasy) given to him by his friends on two or three occasions".

30 In the course of expressing her conclusions, Ms Duffy remarked that in relation to the charge, Mr Pan "displayed relatively poor judgment. He did not seriously question A Hui's generosity in supplying him with money and purchasing a ticket and accommodation for him to travel to Australia. He saw it as an opportunity for tourism, and all he had to do was give money to some men in a hotel". ("A Hui" may be Mr Li. There was some evidence which I do not find clear directed to this topic. However, I do not think the topic is of consequence and do not pursue it.)

31 It is appropriate at this stage to say that I see no reason not to accept these accounts or summaries of the upbringing of the offenders or Acting Judge Mahoney's conclusions on the topic of their contrition and rehabilitation. Some of his Honour's further findings I refer to below. However it should be said that I see no basis in the evidence for a number of others. Nevertheless, as the Crown did not challenge these, I shall proceed on the assumption they were justified.

Assistance 32 The topic of assistance requires attention. Mr Kevenaar's assistance was described in a letter of assistance from the Australian Federal Police as "frank and fulsome". Summarised it was as follows:-

"On 25 September 2002 (he) participated in a taped record of interview with police. During this interview, the Prisoner clearly outlined the background surrounding the events that led to the arrest of" the three Respondents.

On 23 October 2002 he provided a written statement to police corroborating the information supplied on 25 September and indicated his willingness to give evidence against Messrs Dedoes and Pan.

On 16 January 2003 he identified a photograph of Mr Li as the person who had recruited him and Mr Dedoes.

On 29 January 2003 he provided a further written statement to police in relation to the then proposed extradition of Mr Li to Australia. This statement may be used in the impending prosecution of Li in the Netherlands.

33 Mr Dedoes' assistance was described in a letter of assistance from the Australian Federal Police as "not as timely as the assistance given by the Prisoner Kevenaar". The letter went on to say that Mr Dedoes did not agree to participate in a further record of interview and the value of his evidence could not be assessed by the Case Officer. Summarised, the assistance was:-

"On 17 September 2002 (he) participated in a taped record of interview with police. During this interview, the Prisoner outlined the background surrounding the events that led to the arrest of" the three Respondents. (In the description of this event the letter of assistance omits the word "clearly" included in the letter relating to Mr Kevenaar.)

On 25 September Mr Dedoes was given the opportunity to participate in a further taped record of interview and to provide a written statement. On legal advice, he declined.

On 16 January 2003 he identified a photograph of Mr Li as the person who had recruited him and Mr Kevenaar.

On 6 May 2003 he provided a further written statement in relation to the then proposed extradition of Mr Li to Australia. This statement may be used in the impending prosecution of Li in the Netherlands.

34 On 25 July 2003 all three Respondents gave evidence before an examining magistrate at the Downing Centre in the course of a video linkup with authorities in Rotterdam engaged in proceedings against Mr Li and a Mr Croes, one of Mr Li's associates. Each was summoned to appear and compelled to give evidence.

35 That was Mr Pan's only assistance. The substance of his evidence was as follows. Asked if a photograph he was shown was of Mr Li, he said that the person had been introduced to him as Mr Shun, the introduction was by a Mr Hui who had asked him to take some money to Australia where, according to Mr Hui, packages were being sent by Mr Shun to two people. Mr Pan said that there was no mention of ecstasy. Mr Hui also gave instructions as to the handing over of the money and the placing of the tablets in another rented room.

36 Relevant to the value of the Respondent's assistance is the fact that, prior to the Respondents' arrest, police had obtained substantial evidence against all three Respondents in consequence of electronic and physical surveillance and telecommunication interceptions. In the way the matter was left, it is impossible to say to what extent their assistance went beyond the facts as earlier discovered by the authorities in their pursuit of the three.

37 On the topic of assistance, his Honour remarked, inter alia, that Mr Kevenaar volunteered his assistance early in the piece, that it was probably the catalyst that produced the "early plea of Dedoes and the somewhat later plea of Pan", and that it was difficult to imagine what more Mr Kevenaar could have done. His Honour assessed Mr Dedoes' assistance as not as great as that of Mr Kevenaar. So far as Mr Pan is concerned, his Honour said that while he had "provided some but very little demonstrable assistance" and that on a reading of the evidence given in the video link and seeing Mr Pan in Court, his Honour would not be prepared to say that he came through as a "compellingly attractive witness of truth".

38 Mr Dedoes gave evidence which his Honour accepted that he was on strict protection. Messrs Kevenaar and Pan said they were not. His Honour found that Mr Dedoes would probably spend all of his time in prison on strict protection and each of the others may seek or require it at some stage.

His Honour's Reasoning 39 There is one further aspect of his Honour's approach to the sentencing of the Respondents which must be noted. In the course of sentencing his Honour said:-

I would have imposed a head sentence of nine years. After allowing twelve months' discount for your plea of guilty, but pursuant to s16G of the Commonwealth Crimes Act and because there are no remissions in this State I propose to reduce that by 30 percent to a head sentence which would have been for six years. But that then is reduced by 50 percent for your assistance to the authorities, so that there will be a head sentence that you will have to serve of three years. That is back-dated to the day you went into custody on 17 September 2002. I fix a non-parole period of twenty-one and a half months, that will commence on 17 September 2002 and you will be eligible to be considered for release on parole subject to good conduct on 30 June 2004."

40 Counsel for Mr Pan then interrupted his Honour and drew attention to the fact that section 16G has been repealed. There was then discussion about the implications of this in the course of which His Honour asked whether "it's got to go back to 9 years has it? The legal representative appearing for the Crown said "yes". Counsel for Mr Pan agreed that his Honour had to remove the discount but submitted that his Honour might want to revisit the nine years upon the basis that sometimes the discretion is more complex. His Honour adjourned for half an hour of so to consider the matter and then resumed his remarks on sentence. He adverted to the fact that pursuant to section 16G something of the order of a one-third reduction in the term of the sentence was generally effected and continued:-

"Since early this year the Commonwealth Crimes Act precludes or mandates that the deduction of 30 to 33 and a third percent should not take place. The question is how does the New South Wales judge then fix a sentence which is consistent with the pattern of sentencing for similar offences by similar offenders in the period leading up to this change in the law. That question is the one that has troubled me. I do not know the answer to it. I am going to have to do as best I can.

What I have done is to consider the schedule of ecstasy cases attached to the judgment of Hulme J in Schofield's case and see if there are any offenders in that schedule, appearing on pp23 to 38 respectively of his judgment, who seemed to be comparable with the position of any of the offenders that I am sentencing today."

41 His Honour then referred to decisions in Carey 97 A Crim R 552, Mordacai Cohen (an unreported judgment of Howie J, then a judge of the District Court) and R v Rocco [2001] NSWCCA 124 and went on:-

"There are no other cases that I can turn to, to help me produce a result in which there is what the ordinary person in the street would regard as a fair match between a sentence for Kevenaar, Dedoes and Pan on the one hand and the various sentences listed in the Schofield table at pp 39 to 41 of the judgment of Hulme J. I do notice however looking through that, that the sentences for mid-level offenders hovered around about seven to nine years by way of a head sentence, and couriers (or post boxes) were somewhere between three, five and six years in broad terms.

It seems to me that the community's expectation would best be met if, instead of proceeding in the way in which I had commenced to proceed before I was fortunately stopped by the bar table this morning, if I fix the head sentences at less than what I would have done, but do not deduct 30 percent because of the s16G of the Crimes Act, consequently I will now revert to the process of sentencing Kevenaar.

In your case I would have fixed a head sentence of six years imprisonment after allowing twelve months for your plea of guilty, but because of the high level of assistance that you rendered the authorities I propose to give you a further discount of 50 percent. That will reduce your head sentence to three years."

42 In support of its contention that the sentences imposed on the Respondents were manifestly inadequate, the Crown contended that the approach of his Honour reflected in the above quoted passages was both wrong in principle and contrary to the clear tenor of the legislation which effected the repeal of s16G.

43 Finally, in this account of what Acting Judge Mahoney did, I should record that he said that the level of discount to which the Respondents were entitled was to be determined by reference to only the utilitarian value of their plea. He said that the allowance would be something of the order of 10% and in the ultimate exercise he would reduce the head sentence of each by 1 year. All this was prior to His Honour's reference, which I have quoted, to the head sentence on Mr Kevenaar being 9 years. His Honour did not adjust the discount for the Respondent's plea after his adjustment of his starting point.

Repeal of section 16G 44 The effect of the repeal of s16G of the Crimes Act (Cth) was the subject of decision by this Court in R v Studenikin [2004] NSWCCA 164, judgment in which was handed down on Friday 21 May 2004, 3 days before the instant case was argued. There Howie J, with the concurrence of the other members of the bench, pointed out, at [24, 43, 62 and 69] that

(i) that while s16G was in operation, the procedure adopted by the courts of this State in the sentencing of Federal offenders, was to determine the appropriate head sentence (and non-parole periods) by the application of normal sentencing principles and the (other) relevant provisions of the Crimes Act and then, to give effect to the section, before pronouncing the sentence, to reduce by about a third, the periods so determined;

(ii) that the effect of the repeal of s16G is to remove the authority of the courts to apply such a discount; and

(iii) that Parliament had dictated that the repeal was to take effect from 16 January 2003 and is to apply to all sentences imposed on Federal offenders after that date regardless of when the offence is committed and that it is not open for a court to act in opposition of the will of Parliament and determine for itself when the repeal of s16G should take effect.

45 I agree fully with these propositions save and except that there are to be found a number of cases where the 2 step procedure referred to in paragraph (i) was not, or at least not obviously, followed. In those cases the s16G discount was brought into account in other ways.

46 It follows that the pattern of sentences imposed after the repeal of s16G can be expected to accord with the pattern in earlier cases of the periods determined by the application of normal sentencing principles and the (other) relevant provisions of the Crimes Act prior to the application of the s16G discount rather than in the pattern of the length of the sentences ultimately imposed in the earlier cases. Those pre-discount periods are commonly to be found expressly stated in those cases.

47 As Howie J made clear, the discount figure of one third was not a fixed proportion. However, it was the reduction almost invariably applied. If demonstration of that proposition is required, an examination of many of the cases reviewed by me in R v Spiteri [1999] NSWCCA 3 and R v Schofield [2003] NSWCCA 3 will provide it. Simple mathematics demonstrates that once such a discount is removed, the pattern of sentences can be expected to be of sentences about 50% longer than when the discount was in operation.

48 Would-be offenders and sentencing judges should be under no misapprehension. The effect of the repeal of the section is that the length of sentences of imprisonment (and non-parole periods) for those offences to which s16G previously applied should, as a necessary and logical consequence of the way the courts implemented s16G, increase by approximately 50%.

49 That proposition of course depends on an assumption that the pattern of sentencing operating prior to the repeal of s16G was not excessive. After a thorough investigation of the cases in this area on a number of occasions, including in R v Spiteri, R v Schofield and R v Bourel (unreported, CCA, 11 December 1998) I am satisfied that it was not. There certainly has been no appellate court indication that it was.

50 There is one further point which may be made. Even in the absence of the Explanatory Memorandum which accompanied the Bill which provided for the repeal of s16G, Parliament can be assumed to have known of the sentencing practice which prevailed under it. It may fairly be inferred therefore that Parliament contemplated when it effected the repeal without any ameliorating measures, that sentences thereafter would reflect the periods expressed by the courts as appropriate but for the application of s16G.

51 It is, of course, apparent from remarks of his Honour which I have quoted that he did not approach the sentencing of the Respondents in the way that the Court in R v Studenikin said was correct. His Honour's remark,

"The question is how does the New South Wales judge then fix a sentence which is consistent with the pattern of sentencing for similar offences by similar offenders in the period leading up to this change in the law.

52 However, it is not only in adopting an approach inconsistent with R v Studenikin that his Honour erred. His Honour erred also, indeed in respects more fundamental, by attempting to set at nought the change in the law which Parliament had enacted. And this error was compounded by the fact that, having concluded that the appropriate sentence for Mr Kevenaar, prior to the application of discounts was 9 years, when told that he could no longer discount this pursuant to s16G, he then selected a fresh starting point - in his words, "head sentence" - of 7 years (prior to the discount for a plea), not for any reason conceivably legitimate, but just so the result would be what he wanted to achieve.

53 Yet another error appears in his Honour's statement that:-

"… the various sentences listed in the Schofield table at pp 39 to 41 of the judgment of Hulme J …for mid-level offenders hovered around about seven to nine years by way of a head sentence, and couriers (or post boxes) were somewhere between three, five and six years in broad terms.

54 A simple perusal of the only table of sentences contained in that case - R v Schofield [2003] NSWCCA 3 at [70] shows his Honour's description to be quite inaccurate.

55 Furthermore, as I demonstrate below, his Honour's choice of 7 years was itself an error and outside the legitimate range of his Honour sentencing discretion.

Discounts 56 I turn then to the topic of the discounts his Honour allowed for the Respondents' pleas and their assistance.

57 The Crown was content to accept that the allowance his Honour made for the Respondents' pleas was within a permissible range, albeit at the high end, but challenged the allowances his Honour made for assistance. The Crown submitted that that Mr Dedoes' assistance was less than that of Mr Kevenaar and that of Mr Kevenaar did not even qualify as "significant" so as to justify a discount within the range of 25 to 50% referred to in R v Chu (unreported, CCA, 16 October 1998) for such assistance. In fact the range referred to in R v Chu as "customarily given in New South Wales" was from 20 to 50%. Somewhat inconsistently, later the Crown submitted that Mr Kevenaar's assistance might be assessed towards the lower end of the 25-50% range. Of course, sometimes discounts are lower than 20%. For example, in Yenice (1994) 72 A Crim R 234 it was approximately 15%.

58 This Court was not, and it seems that Acting Judge Mahoney was not, provided with copies of the transcripts of the early interviews in which Messrs Kevenaar and Dedoes participated. Any accurate judgment as to their significance is therefore almost impossible but, in light of the description of them in the letters of assistance and the relative timing of them, it is not apparent why his Honour concluded that it was Mr Kevenaar's assistance which had led to Mr Dedoes pleading guilty. Nor is it possible to ascertain to what extent, if at all, any evidence Mr Kevenaar could have given would have added to what Mr Dedoes had already admitted in his interview.

59 His Honour was entitled to infer that Mr Kevenaar's willingness to give evidence was a likely inducement to Mr Pan to plead guilty and would have been of substantial benefit if he had not. Mr Kevenaar's identification of Mr Li and then his willingness to give, and giving of, evidence against Mr Li and Mr Croes was also something deserving of substantial recognition.

60 On that last mentioned topic, Mr Dedoes' actions are also deserving of recognition, particularly as they seem to have been voluntary and, one may infer, to have been at least in part the occasion for him going into strict protection. In describing them as voluntary, I do not ignore evidence that indicates that all 3 Respondents were summoned to attend to give the evidence against Mr Li and his associate. However Mr Dedoes did assist in photographic identification and there was no indication that, but for the summons, he would not have given the evidence in an apparently truthful manner.

61 I have no doubt that Mr Kevenaar's assistance should properly be described as significant. To what extent Mr Kevenaar's sentence should be reduced because of it and its consequences is, however, another question. Although his Honour indicated that he did not see how Mr Kevenaar could have done more, that is not the test. Otherwise assistance, small in degree, is liable to attract large discounts for those whose ability to assist is also low.

62 Of the nature of things precision, indeed one may say measurement, of the assistance is not possible. However, it is appropriate to observe that, by comparison with the degree of assistance which has been rendered in many other cases with which the courts have had to deal, Mr Kevenaar's assistance fell within a limited compass. It was certainly not at or close to - I do not need to decide which - the top of the range which the 50% which his Honour allowed would suggest. A fortiori is this so, when one recognises that the allowance his Honour made was in addition to the discount - 14% of his Honour's starting point of 7 years or 11% of his originally proposed starting point of 9 years - for Mr Kevenaar's plea.

63 Acting Judge Mahoney saw fit to give separate figures for the discount for the Respondent's pleas and for assistance. There are disadvantages in that course, not the least of which is the risk that there will be double counting - see R v El Hani [2004] NSWCCA 162. Furthermore, the imposition of discount upon discount, does tend, as it may have done in this case, to distract attention from the extent to which a sentence has been reduced below what an offender's criminality deserves. Although the separate specifications do tend to make it clear to an offender that his assistance has been recognised, they also are liable to give an appearance of mathematical exactitude which is not justified. In the case of Mr Kevenaar it seems to me appropriate to allow a composite discount of 40% which includes "something of the order of 10%" which Acting Judge Mahoney allowed for the Respondents' plea. I do not regard Mr Kevenaar as entitled to more.

64 Mr Dedoes' assistance was less than that of Mr Kevenaar. However he is already on protection and his Honour found that Mr Dedoes would probably spend all of his time in prison on strict protection. In his case the discount I think appropriate is 35%, a figure which also includes "something of the order of 10%" for his plea.

65 Mr Pan falls into a somewhat different category. His assistance was, as the above summary of it indicates, minimal at best and under the compulsion of a summons. There is much to be said for the view that he should receive no discount for assistance. However his Honour gave him a discount by way of a six month reduction in what would otherwise have been a 7 year sentence (7%). The Crown has not submitted that no discount should have been given and in these circumstances, I would not interfere with Acting Judge Mahoney's decision in this regard beyond making adjustments to reflect any change in the starting point compared with Acting Judge Mahoney's 7 years (or 8 years prior to the plea). I would thus allow Mr Pan a discount for his plea and assistance of 20%.

Sundry Errors 66 Before I turn to the topic of the appropriate range of sentences for the Respondents' offending there are some other findings of his Honour and matters to which I should refer. In light of what Mr Kevenaar told Ms Robilliard, His Honour's finding that Mr Kevenaar was unemployed was clearly wrong.

67 As I have said, his Honour accepted that Mr Kevenaar's experience in gaol had brought him face to face for the first time with a real opportunity to comprehend the ravages brought on people's lives by drug abuse. His Honour made no such finding in the case of Mr Dedoes notwithstanding evidence from him indicating a similar Paul like conversion. Findings of judges who have seen witnesses are not lightly upset but I regard it as impossible to conclude otherwise than that Honour's finding in this regard is perverse. Given the history of each of them prior to their offending, it is impossible to believe other than that they had at all times some appreciation that illegal drugs can have serious detrimental effects on some who take them. It is not without significance in this regard that both of them have eschewed the use of illegal drugs (except, in the case of Mr Dedoes cannabis which he said was legal in Holland).

68 The evidence as to Messrs Kevenaar's and Dedoes' employment indicates that their offending was not out of any particular need for money, albeit I do not suggest they would not have found their promised payment useful. It is impossible to avoid the conclusion that each made a deliberate decision to participate in the offending for the financial reward it would bring him. It is appropriate to give some recognition to their past difficulties in life but they can have little cause for complaint when the risks they willingly undertook for that reward eventuate.

69 Somewhat similar considerations apply in the case of Mr Pan although the failure of his business and the apparent need to rely on casual work may have imposed some greater need for money than Messrs Kevenaar and Dedoes had.

70 One matter which should be mentioned is the approach of counsel appearing for the Crown before Acting Judge Mahoney. All three respondents gave evidence. There was tendered on behalf of each a psychological report, favourable to its subject both in terms of the history recounted and in the opinions expressed. Yet for all practicable purposes there was no cross-examination or intimation that any part of what was said was not accepted by the Crown. Of course, the nature of much of what was said was such that the Crown was almost certainly not in a position to contradict it and was circumscribed in the nature of any cross-examination which could occur. However, saying virtually nothing puts a sentencing judge and this Court in the difficult position where, it can be fairly urged on behalf of offenders that their evidence, some not inherently probable, stood unchallenged when there was opportunity to challenge it in some way.

71 As I pointed out in R v Schofield, at [7-26] where I dealt with this topic at more length, one must look at the reality of how sentencing proceedings are conducted, commonly with a considerable degree of informality and with little regard to the usual rules of evidence see Evidence Act s4(2). It would be unrealistic to expect every assertion of fact whether made from the witness box, contained in Pre-Sentence or other report, or made from the bar table, to be individually expressly challenged. But in relation to any matters of significance the parties, including the Crown, have an obligation to make clear what issues are, and which are not, common ground or in dispute. This may be done by cross-examination or, in relation to many matters, by simple statement that they are not accepted but one way or another, definition should occur.

Commencing Point 72 Against this background, I turn to the issue of the appropriate penalty prior to the operation of any discounts. The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself. "In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" - R v Peel (1971) 1 NSWLR 247 at 262.

73 The Customs Act provides that where the quantity of MDMA involved in an offence is at least 50 grams but less than 500 grams, the maximum penalty is 25 years imprisonment plus a fine of $500,000. Where the quantity is 500 grams or more, the maximum penalty is life imprisonment and a fine of $750,000. The quantity involved in the Respondents' offending of 5,987.7 grams was thus almost 12 times that which Parliament selected as the dividing line between these penalties.

74 By virtue of s237 of the Act an attempt to commit an offence is punishable as if the offence had been committed. In R v Schofield, at [139], Carruthers AJ, with the concurrence of Heydon JA, expressed the view that:

"It is important to appreciate that where an attempt to commit a substantive offence is involved, it is relevant to consider, in evaluating the seriousness of the offence, inter alia, that the offence was not completed; the chances of its success; the seriousness of the attempt; whether the attempt was sophisticated or naive; the competence of the attempt and all the other surrounding circumstances: see R v Taouk(1992) 65 A Crim R 387 at 390."

75 I took a different view, viz. that "any general proposition that an attempt is necessarily less serious than a completed offence is inconsistent with the tenor of the legislation" - see at [62]. In Irusta [2000] 117 A Crim R 6, Simpson J, with the concurrence of Dowd and Bell JJ, said, in the context of the provisions of the Customs Act, that attempts are not necessarily to be treated as less serious, and warranting less severe punishment, than a completed offence. Irusta was not brought to the attention of the Court in R v Schofield. R v Taouk was a case of an attempt to pervert the course of justice, a substantive offence in itself.

76 In this case I do not find it necessary to choose between the two different approaches because I regard the comfort the Respondents can derive from the fact that their offences were but attempts as so limited as to be negligible. It was only through the actions of the Customs authorities that their attempts were not successful. It is artificial to suggest that the Respondents' criminality would have been to any appreciable extent greater than it was had the Customs authorities allowed the parcel containing the MDMA to be delivered intact and then arrested the Respondents when they had possession of its original contents.

77 There is no evidence demonstrating that the Respondents knew the quantity of drugs involved although one might legitimately infer from Mr Pan's role that he may well have had a good idea. Mr Kevenaar, as has been said, expressed some surprise when the parcel was opened. However, I regard this ignorance as of little moment. No Respondent suggested he sought to limit his offending to a small quantity or had reason to believe that was the case. All three apparently agreed to assist with whatever quantity Mr Li or his associates cared to send.

78 As has been said, Acting Judge Mahoney found that the involvement of Messrs Kevenaar and Dedoes could not be regarded as much more than peripheral on the very edge of the operation. One might wonder whether that is so, given the expense incurred in their coming to Australia but there is no evidence which would justify a conclusion that their involvement was higher. On the other hand, one must recognise that they may have been employed to maximise the possibility that if the Australian authorities became involved, others higher in the organisation were not caught.

79 Be that as it may, the importance of such persons at the lower levels of involvement has long been recognised by the courts - see Le Cerf (1976) 8 ALR 349, at 351. The approach there enunciated has received endorsement in this Court on numerous occasions - see e.g. the cases cited in R v Markarian, at [26].

80 Equally recognised has been the importance of imposing punishments harsh enough to act as a real disincentive to those tempted to participate in importations, many of whom, like Messrs Kevenaar and Dedoes, are attracted by the rewards that participation in drug related activities may bring. There is nothing to suggest that any of the offenders participated otherwise than as a naked commercial operation on his part although, according to what Mr Kevenaar told Ms Robilliard, he also seems to have been influenced by his girlfriend who said, "we need the money". It is of course equally clear that there is no evidence which would justify the conclusion that they were to have any share in the profits.

81 I have referred above to such of the Respondents' subjective circumstances as seem to me important. I have also had regard to the terms of s16A of the Crimes Act (Cth) but I do not regard it as necessary to deal with the matters there referred to seriatim here.

82 In R v Schofield [2003] NSWCCA 3, I had occasion to consider, summarise, and include in a table of penalties many of the cases in this Court where examples are to be found of penalties which have been, or should be, imposed on persons concerned with the importation of ecstasy. Putting aside some cases which, either because of their number, the penalty or other factors can be fairly described as aberrations, the cases show that couriers of quantities between 41 and 499 grams, i.e. trafficable quantities, have commonly received head sentences of between 6 and 7 years. Putting aside discounts for assistance, sentences of between 7 and 10 years imprisonment has been the general range for couriers of quantities between 500 grams and 2 kilograms. Demonstrating this are the following cases.

83 In Budiman (unreported, CCA, 8 September 1998) this Court refused to interfere with a sentence of 8 years and 3 months imprisonment with a non-parole period of 6 years and 3 months. A discount of 9 months had been allowed for willingness to assist. The report does not say from what term(s) the 9 months was deducted but it is a clear inference that one of them must have been the head sentence. The quantity of ecstasy involved was 591gms pure. The offender had come to Australia to be the consignee of a parcel of speakers containing the drug and was regarded as a courier. He had a previously unblemished character but pleaded not guilty.

84 In MacGregor (2000) 120 A Crim R 24 a courier who had brought into Australia tablets containing 657.3 grams of ecstasy had been detected at the airport. A controlled delivery containing some ecstasy was arranged and the applicant picked this up from the courier. The applicant was motivated by financial gain. He was 23 at the time, had no prior record and was regarded as having good prospects of rehabilitation. The sentencing judge said that she would sentence upon the principles applicable to couriers and imposed a sentence for this offence of 9 years with a non-parole period of 6 years. Hidden J, with the concurrence of Mason P and Carruthers AJ said that the sentence of 9 years appeared excessive but that the applicant's entitlement to have it reduced was put beyond doubt by considerations of parity. The Court reduced the sentence to one of 8 years imprisonment with a non-parole period of 5 years.

85 In Bowers (1997) 97 A Crim R 461 the applicant pleaded guilty at an early stage to a charge of importing not less than a commercial quantity. Reference to the Court file shows it was 719.2 grams. He was a courier who was to be paid 5,000 pounds for his efforts. He was apprehended at the airport, offered to participate in a controlled delivery, had no prior convictions, was found to be contrite and had been unemployed for some period. This court recognised that there had been errors - operating in opposite directions - in the sentencing process but declined to interfere with a sentence of 8½ years imprisonment with a non-parole period of 4½ years. Ireland AJ described the sentence as proper. Hunt CJ at CL, with whose observations Levine J agreed, said that he would not impose any shorter sentence and that the correct range was much higher than a number of District Court decisions to which reference had been made.

86 In R v Tan [2001] NSWCCA 219 this Court dismissed an appeal against a sentence of 7 years with a non-parole period of 4 years and 6 months on an offender who had pleaded guilty at committal to importing 736 grams of ecstasy. He was regarded as a mere courier and had been apprehended at the airport. He was 41, of prior good character and regarded as contrite. His motive was to obtain money for medical attention to his mother.

87 In Amran Efendi v R [2001] NSWCCA 391 the applicant had been convicted of two counts, one of importing about 0.8 kg of ecstasy and one of importing 10.7 grams of methylamphetamine. The sentences imposed were, respectively, 10 years imprisonment with a non-parole period of 6 years and a fixed term of 5 years. The applicant was regarded as a courier, being paid $3,000 for his efforts, and had been apprehended at the airport. He was 39, had no prior criminal history but there was no evidence of contrition. He would have difficulties in prison, speaking no English and having no family in Australia. This Court saw no reason to interfere, even if the sentence marked the top of the relevant range revealed in the statistics.

88 In R v Guiu [2002] NSWCCA 181 this Court reduced to a term of 6 years with a non-parole period of 3 years and 9 months the sentence imposed on an offender who had been found guilty of attempting to obtain possession of a commercial quantity of ecstasy. Reference to the Court file shows that the pure weight was about 1.102 kilograms. This Court took the view that "the evidence supports a conclusion that the applicant willingly and knowingly engaged in the pick up of drugs from a person she knew to be an international courier to provide them to her husband who she knew was knowingly concerned in the importation and delivery to whom she knew would commence the process of distribution". She was more than a mere collector of the drugs. Taking the view that there was error in the process at first instance, the Court was influenced by considerations of parity with the importer and the offender's husband. The offender was 44 and there were favourable subjective circumstances.

89 In R v Niketic [2002] NSWCCA 425, this Court refused to reduce a sentence of 7½ years including a non-parole period of 4½ years imposed on an offender who pleaded guilty at the committal proceedings to importing not less than a commercial quantity, viz. 1.1953 kg, of ecstasy. The offender was apprehended at the airport but declined to be interviewed and it was impossible to determine his role. He was infected with HIV but it is not clear what, if any, weight had been given to this.

90 In Behar (unreported, CCA, 14 October 1998) the respondent pleaded guilty to a charge of importing 1.231 kg of MDMA. He was apprehended at the airport and regarded as a courier. His subjective features were strong. The head sentence imposed at first instance had been 6 years imprisonment, a discount of 4 years having been allowed for assistance. The appeal was concerned with the non-parole period. Spigelman CJ, with the concurrence of the other members of the Court said that in the working out of the appropriate sentence for an offence of the character under consideration, a starting point of 10 years was too low unless it were reached after the discount required by s16G of the Crimes Act (Cth), and even then it might be at the lower end of the appropriate range.

91 In R v Woolery [2002] NSWCCA 299 this Court dismissed an appeal against a sentence of imprisonment for 7½ years with a non-parole period of 4½ years for importing 1,570 grams of ecstasy. The offender was apprehended at the airport. It was found that the applicant was not involved in the manufacture or in the distribution, except perhaps to a single collector but "in terms of this importation, he was the central character". He was regarded as, in one sense, a courier. A discount of 10% for a plea of guilty at the earliest opportunity and 15% for assistance had been allowed.

92 Only 2 of the cases I considered concerned couriers of greater than 2 kilograms - R v Soonius (unreported, CCA, 29 May 1998) and R v Lim and Yeung ([2002] NSWCCA 293. Messrs Lim and Yeung were involved with a quantity of 6.15 kgs and were sentenced to imprisonment for 9 years. The appeal to this Court was only on the basis that one of the sentencing judge's factual findings was wrong and there was no endorsement of the sentence.

93 In R v Soonius the quantity involved was 3.34 kgs. The applicant had been a courier for reward but had pleaded not guilty and was not regarded as exhibiting remorse. He had however provided assistance, for which the sentencing judge had allowed a discount of 2 years before imposing a sentence of 11 years imprisonment with a non-parole period of 6 years. This Court reduced the terms to 9 years imprisonment with a non-parole period of 5¼ years. A feature distinguishing the case from many others was Soonius' psychiatric condition, to which Wood J in Budiman (unreported, CCA 8 September 1998) referred as "powerful and unusual subjective circumstances".

94 In R v Schofield itself, the offender pleaded guilty to a charge of attempting to possess 2.0979 kg (pure weight) of imported MDMA. He was for a time the driver of a car in which a carton containing the drug had been placed and from which, after a time it was removed and hidden. His role was described as that of a "fairly lowly category of courier". Also taken into account were offences of attempting to possess 60.2 grams of methylamphetamine and 74.8 grams of amphetamine. The offender had a criminal record for a number of offences of, or indicative of, dishonesty and was on parole at the time. Nonetheless he was regarded by the majority of this Court as having good prospects of rehabilitation.

95 Carruthers AJ, with the concurrence of Heydon JA, thought that an appropriate starting point in the determination of the sentence but after making allowance for the offender's plea, was 9 years. From this one third was deducted on account of s16G and a further year deducted for assistance, leading to a head sentence of 5 years. There were also special circumstances justifying a non-parole period of 3 years. I would have imposed a heavier sentence. All members of the court said that ignorance by the offender of how much of the drug was in the carton, which contained legitimate cargo also, was not, in the circumstances, a mitigating or exculpatory factor.

96 It is not clear what allowance the majority made for the offender's plea. It occurred at the earliest opportunity but because the Crown case was easily proved, I was disposed to allow a discount of only 15-20%.

97 Other cases not referred to in R v Schofield which have been referred in argument to or which have come to my attention are the following. In Togias [2001] 127 A Crim R 23 at 25, the Chief Justice referred to "a detailed schedule of sentences for ecstasy and other mid-range narcotics" which the Crown had put before the Court and said:-

"Putting aside the occasional exceptional case of a very large shipment or substantial assistance to authorities, the schedule suggests a sentencing range for persons low in the hierarchy of five to nine years, with a non-parole period from three to six years. The lower end of the range was applicable to trafficable quantities, often quite small amounts."

98 The identity of the cases referred to is not apparent from his Honour's reasons. However Grove J in a separate judgment referred to eight which were apparently within the group. All except R v Osborne (unreported, CCA, 6 November 1997) are included in those I considered in R v Schofield.

99 In R v Osborne the offender had pleaded guilty to importing ecstasy, the pure weight of which was 240 grams. His appeal against a sentence of imprisonment for 8 years with a non-parole period of 5½ years was dismissed. His plea was at the committal stage but only after a number of inconsistent stances were adopted. He was arrested at the airport, had no significant record and was regarded as more than a bare courier and somewhere close to half way (in the scale of offenders). Referring to R v Ferrer-Esis (1991) 55 A Crim R 231 at 236 and DPP v El-Karhani (1990) 21 NSWLR 370 at 386, this Court said that the ratio of non-parole period to head sentence was not out of line.

100 In R v El Hani [2004] NSWCCA 162 this Court refused to interfere with a sentence of imprisonment for a period of 15 years including a non-parole period of 10 years on an offender who pleaded guilty to being knowingly concerned in the importation of 480,000 ecstasy tablets containing 34.4 kg of pure drug. The offender was regarded as a "senior person in the organisation who played an important managerial role" after the substitution of other material for most of the tablets by Customs authorities. The sentence imposed reflected discounts totalling 25% for the offender's plea and assistance. The judge's starting point was imprisonment for 30 years.

101 Appearing for Mr Kevenaar, Ms Burgess pointed out that most of the cases referred to by me in R v Schofield involved importation and drew attention to a number of cases dealing with attempts to possess. R v Schofield was such a case. Neither R v Guiu nor R v Macgregor, referred to above, show that the fact the charge involved an attempt, rather than possession, made any appreciable difference to the result, although it was certainly emphasised in the first of these cases that attention must be given to what the offender actually did. In that case, the offenders role was known. Nor do the other cases to which Ms Burgess referred, all of which were in fact among those referred to in R v Schofield, show that where a charge is of an attempt only, a lower sentence is merited. These were R v Schluenz [2001] NSWCCA 314 (83 grams; 7 years with 4 years NPP; above courier), and R v Pejovski [2001] NSWCCA 182 (214 grams; 6 years with 3½ years NPP; consignee, courier or warehouseman; NPP affected by parity).

102 In many of the cases to which I have referred above s16G is expressly mentioned. It is to be inferred it was reflected in all. However in R v Studenikin [2004] NSWCCA 164 the sentence did not reflect a s16G discount. This Court reduced from 12 to 10½ years a head sentence imposed on an offender who pleaded guilty to an offence of importing ecstasy tablets with a pure drug weight of 3.2786 kg. The Court made no change to the non-parole period of 7 years. The offender had also been sentenced to imprisonment for a concurrent fixed term of 1 year for making a false statement in connection with his entry into Australia. The sentencing judge had been unable to precisely identify the offender's role in the importation other than that he had brought the drug into Australia in his luggage. In this Court he was described as "not a 'mule' courier". He had pleaded guilty at a very early stage and had assisted police on a "limited basis". The ground on which the head sentence was reduced was that it was manifestly excessive although the 7 year non-parole term was described as "lenient".

103 Of course, the cases to which I have referred, the above summaries and the patterns which I deduce are but a guide or a check. No two cases are identical. And while it often is, and has been above, convenient to refer to "couriers" to encompass most of those at the lower end of criminality in drug importation in contradistinction to "principals" or persons in the middle, terminology must not be a substitute for recognition of the actual roles or involvement of offenders including the Respondents where those roles and involvement can be determined.

104 What conclusions should be drawn from the above? Firstly, that the sentences imposed on couriers involved with trafficable quantities have generally been 6 or 7 years. Secondly, having regard to the fact that a higher maximum penalty is prescribed for commercial quantities, viz. 500 grams or more, one would expect that as quantity increased and particularly the further it moved away from 500 grams, so penalties could be expected to increase. Thirdly, the general pattern of sentences for commercial quantities show that that has occurred. Fourthly, there is in the decisions of Budiman, Macgregor, Bowers and Amran Efendi strong support for the view that, in the case of offenders who had pleaded guilty, a head sentence of 8 to 10 years imprisonment is appropriate in the case of quantities appreciably above 500 grams but under 1 kilogram and a clear indication in Bowers that the sentences should not be less than 8 years. Fifthly, Behar provides support for this view.

105 The sentences imposed in the District Court in Tan (7 years), and Niketic (7½ years) are less than the pattern referred to although there were subjective factors in those cases which might explain the difference. The sentence imposed in the District Court in Lim and Yeung (9 years; 6.15 kg) is also less. Having regard to the extent of the discussion of the role of, and sentences imposed on co-offenders, and the absence of any discussion of the other cases to which I have referred, I do not regard Guiu (6 years) as arguing against the pattern to which I have referred

106 On the other hand, in Schofield when one disregards the discount for assistance, the sentence imposed was 6 years. Schofield was described as "a fairly lowly category of courier" and Heydon JA and Carruthers AJ were clearly influenced by the fact that Schofield's offending was only an attempt. On the other hand, at 2.09 kg, the quantity was much higher than in Budiman, Macgregor, Bowers, Amran Efendi and Behar.

107 The above periods all reflected the existence of s16G. Studeniken, where the quantity was about 3.27 kgs, i.e. 2½ to 5 times the amounts in Budiman, Macgregor, Bowers, Amran Efendi and Behar, and the head sentence was 10½ years, did not. That period reflected some allowance for assistance to investigating police, albeit this was characterised as on "a limited basis".

108 In the immediately preceding discussion, I have concentrated on weights. I do not for one moment suggest that weight is the only relevant factor or even the predominant factor. The decision of the High Court in Wong v R [2001] 207 CLR 584 makes that clear and I have recognised the fact in R v Spiteri at [11, 27, 37] and in other cases since. See also R v Schofield at [43]. However the roles of the offenders in all of the cases to which I have referred, while not identical, have been at least roughly comparable and in the summaries I have given I have sought to identify other matters of major significance. I have indicated why, in this case, I do not regard the Respondent's knowledge or ignorance of the quantity of drugs as particularly relevant. Furthermore, as I said in R v Schofield, at [43],

"…. Although it is obviously not the sole criteria, other things being equal, dealing with a commercial quantity is more heinous than dealing with a quantity not answering that description. Other things being equal, doubling the quantity is calculated to double the illegal profits for the principals engaged in a drug dealing activity and, if not to double, at least substantially increase the harm. "In general, … the larger the importation, … the heavier the punishment that would ordinarily be exacted" - Wong v R (supra) at [64]."

109 For completeness, I would add that there is another group of cases to which reference may be made. In R v Wong and Leung [1999] 48 NSWLR 340 at 358 the Chief Justice, after a consideration of a large number of earlier cases involving couriers of heroin and cocaine concluded that they showed a pattern of sentences as follows:-

Low range trafficable quantity 5-7 years (2-200 grams)

Mid range trafficable quantity 5.4-10 years (200 grams-1 kilogram)

High range trafficable quantity 6.5-10 years (1-1.5 kilograms heroin) (1-2 kilograms cocaine)

Low range commercial quantity 8-12 years (1.5-3.5 kilograms heroin) (2-3.5 kilograms cocaine)

110 The Chief Justice said that no discernable pattern existed for higher quantities.

111 Earlier in R v Spiteri [1999] NSWCCA 3, I had been led by an examination of largely the same cases to the view that, subject to some qualifications to which it is presently unnecessary to refer, the general pattern of sentencing revealed was:- Courier Above Courier 70-700 grams 6 - 8 years 8.5 - 10 years Top half of trafficable range 9 years 10-10.5 years One to two times commercial 9¼ - 11½ years 12 - 13 years

112 Whichever of these conclusions is accepted, they show a pattern of sentencing somewhat higher than for comparable quantities of MDMA. That was to be expected so long as MDMA was regarded as a "mid-range" drug, not as deleterious as heroin or cocaine. However, in R v Nai Poon [2003] NSWCCA 42 this Court pointed out that all 3 drugs are dealt with similarly in Schedule VI to the Customs Act in that trafficable and commercial quantities are specified, and that any difference in approach between the drugs was to be determined primarily by reference to the statutory provisions and the weights there specified.

113 There is much to be said for the view that, in light of the decision in R v Nai Poon, there should not be the disparity in sentences for the importation of MDMA on the one hand and the importation of heroin and cocaine on the other which there is. However, this is a Crown appeal and, given the discretion which exists in consequence, the circumstances of this case make if not inappropriate to deal with the matter on the basis of the lower, MDMA, pattern of sentencing.

114 It remains to consider whether, notwithstanding the errors to which reference has been made, this Court should exercise its discretion to interfere. One factor which argues against the Court interfering is the fact that the custodial sentences imposed on, particularly Messrs Kevenaar and Dedoes are very soon to expire. I have set out the history of proceedings before Acting Judge Mahoney. The Crown lodged its Notices of Appeal on 18 December 2003 and it is therefore apparent that there has been no appreciable delay on its part. The imminent expiration of the non-parole periods of Messrs Kevenaar and Dedoes really arises because they were not greatly longer than the time served prior to sentence.

115 Also relevant to the exercise of the Court's discretion is the extent to which the sentences imposed were affected by error and inadequate. Although it is not possible to reconcile all the cases, I am satisfied that the head sentences should have reflected the 8 to 10 years to which I have referred and evidenced in the sentences in Budiman, Macgregor, Bowers, Amran Efendi and Behar, the remarks of Hunt CJ at CL and Spigelman CJ which I have quoted, an increase of the order of 50% in light of the repeal of s16G to reflect the absence of that section, and an increment to reflect the much greater quantity involved in the Respondents' offending. The extent of that increment would depend on where in the 8 to 10 year range one started. Furthermore, the discount for assistance for Messrs Kevenaar and Dedoes should, as I have indicated, have been less than Acting Judge Mahoney allowed. Of course, there was also to be taken into account the nature of the Respondents' roles which, at least in the case of Messrs Kevenaar and Dedoes seem to have been appreciably less than those of many "couriers", the Respondents' subjective factors, and the other matters to which Acting Judge Mahoney did refer, and which have not been held to be erroneous. In addition, there were affidavits from all three offenders which were read on the appeal together with a little further evidence as to events in prison.

116 But for the fact of assistance, an appropriate head sentence for persons such as Messrs Kevenaar and Dedoes, i.e. on the periphery and less than couriers, but committing offences involving quantities of the magnitude here could be expected to fall within the range of 13 to 16 years. It may be acknowledged that such a sentence is severe. However, as Simpson J said in R v Benais [1999] NSWCCA 236, at [23-24]:-

"The escalation in drug use in this country is a matter of notoriety, as is the effect of drug use and abuse on the wider community. While minds may and do differ on policies that should be adopted in relation to drug use and on drug addiction there is, as I perceive it, less controversy about tolerance of imported drugs such as Ecstasy.

Governments and Government agencies that struggle to control the importation of drugs deserve the support of the courts. Their efforts are diminished where courts fail to give that support. To fail to give the necessary support is to undermine the efforts that have been made by Governments and other agencies to control the spread of drug use."

117 Furthermore, Parliament has indicated clearly that sentences should be severe. A principal factor in sentencing in this area is to provide deterrence to others - to induce others tempted to offend as the Respondents did to regard the risks and the costs as too high. Experience shows that not uncommonly the consequences of the use of drugs of the nature of those the Respondents were involved with are even more severe.

118 What I have already said indicates that Judge Mahoney's errors were substantial and the sentences inadequate to a major degree. In my view the only appropriate decision for the Court is to allow the appeal and re-sentence the Respondents.

119 In a Crown appeal, the usual practice these days is to impose a sentence at the bottom of the available range, although there is also power to go even lower. Given the extent of the inadequacy of the sentences imposed by Acting Judge Mahoney, any increase which brings their sentences close to what they should have been will necessarily be large. That, the fact that Mr Dedoes is close, and Mr Kevenaar is very close, to the end of their non-parole periods, and their particular circumstances leads me to the view that in this case their sentences should be, albeit to a limited degree, lower than the bottom of what I would regard as the appropriate range. In the case of Messrs Kevenaar and Dedoes, I would propose a starting point of a period of 12 years. I make it clear that in doing so, I am exercising the discretion which exists in Crown appeals.

120 When the discount to which I have referred of 40% in the case of Mr Kevenaar is applied, this results in a head sentence of, in round figures, 7 years. An appropriate non-parole period is 4½ years.

121 When the discount to which I have referred of 35% in the case of Mr Dedoes is applied, this results in a head sentence of 7 years and 9 months. An appropriate non-parole period is 5 years.

122 In the case of Mr Pan, parity probably argues for him being given the benefit Messrs Kevenaar and Dedoes are receiving in light of the imminence of the end of their non-parole periods. However, his greater role means that the starting point for him should be higher than the 12 years I have adopted in the case of the other Respondents. Influenced by Acting Judge Mahoney's approach of making that starting point only 1 year or approximately 14% higher, and although I doubt if this adequately reflected the difference in roles, the starting point in his case should be 13 years and 8 months. After taking account of the discount of 20% to which I have referred, his head sentence should be 11 years. An appropriate non-parole period is 7 years.

(ii) Each of the sentences imposed on the Respondents is quashed.

(iii) In the case of Theodorus Kevenaar he is sentenced to imprisonment for a period of 7 years including a non-parole period of 4½ years, both such terms to commence on 17 September 2002.

(iv) In the case of Marinus Dedoes he is sentenced to imprisonment for a period of 7 years and 9 months including a non-parole period of 5 years, both such terms to commence on 17 September 2002.

(v) In the case of Jin Rong Pan he is sentenced to imprisonment for a period of 11 years including a non-parole period of 7 years, both such terms to commence on 17 September 2002.

(vi) Direct the legal advisors for the parties to explain to the Respondents the purpose and consequences of the above orders as required by s16F of the Crimes Act 1914 (Cth).

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