86 The Court also went on to observe that the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge and the greater the reward, the heavier the punishment will usually be.
87 The whole venture in the present matter was the prisoner's venture. He used Mr U and Mr Cassar to achieve his illegal purposes. The fact that he was not arrested for another nine months after the other participants were arrested, does lead to the inference that the steps taken by him to distance himself from all, nearly succeeded. He is to be sentenced as a principal who was responsible from beginning to end for the illegal enterprise, and who used others to achieve his unlawful object.
88 Turning to the other relevant matters set out in s.16A(2), there is no evidence to show contrition on the part of the prisoner.
89 Turning to the question of deterrence, the first question is specific deterrence of the prisoner. This brings me to his prior convictions.
90 After the jury had delivered their verdict, the Crown obtained leave to file an amendment to the presentment setting out a list of prior convictions. Later the Court's attention was drawn to s.376 of the Crimes Act 1958 (Vic.) In my view, it was not open to the Crown to add to the presentment the previous convictions after verdict. Accordingly, leave granted is withdrawn. However, in my view it does not preclude the Court from considering the prisoner's antecedents, which would include prior convictions properly proven pursuant to s.16A(2)(m) of the Crimes Act.
91 The Crown placed four certified certificates before the Court as to the prior convictions. I am satisfied that each concerned the prisoner.
92 The first related to a conviction in Yass recorded on 11 April 1989 for possessing an unlicensed pistol, and the prisoner was fined $1,000. He was then aged 22 years.
93 The second prior conviction proven was the conviction of him on a charge of attempting to pervert the course of justice. He was sentenced for a period of 12 months, six months of the sentence being suspended for a period of 12 months. He was then aged 22 years. That prior conviction is serious.
94 The next prior conviction proven was on 21 May 1992, when he was convicted of receiving stolen goods and fined $1,500.
95 The next was a charge brought against him of hindering police, which was heard on 1 April 1998 at the Prahran Magistrates' Court. He pleaded guilty to the charge but was not convicted, and the matter was adjourned for a period of 12 months. He was required to pay $1,000 to the court fund.
96 I ignore the latter and also the two offences heard in the Magistrates' Court, but so far as the conviction in the County Court of Victoria on 24 April 1992 is concerned, it was, on any view, a serious matter. He has served his punishment for that offence. That antecedent criminal conduct, together with what occurred in the present case, shows the prisoner's attitude to the law. Despite serving a term of imprisonment, he indulged in the conduct which is the subject of this conviction. It shows his attitude to the law and his propensity to ignoring the law and, when coupled with what has occurred in the present proceeding, in my view, is relevant to the question of specific deterrence.
97 As I have stated, there is no evidence that the prisoner has shown any contrition for the commission of the offence. I am satisfied that the sentence should take into account specific deterrence to deter the prisoner from committing further criminal activities. General deterrence in this area is, of course, of the utmost importance.
98 There is no doubt that the returns for those engaged in drug trafficking are enormous. The return in this case was in the order of A$105,000 for participation in the venture of providing money, recruiting others, taking possession of the drug for a short period and on-selling. It is unnecessary to labour the point as to the deleterious consequences of an excess use of narcotics, and cocaine is no exception. Greed and the ease of making quick money underpin most drug trafficking. It is important to send a message to those who are like-minded that drug trafficking does not pay.
99 Turning to the level of criminality, I am satisfied that the prisoner's level of criminality is indeed high for the reasons I have already stated.
100 I now to the prisoner's personal matters. The prisoner is presently aged 40 years, having been born on 8 August 1965. As I understand it, the prisoner was born outside of this country and came to this country with his family at an early age. He has a number of siblings. He has been married and has children.
101 The prisoner has been successful in various business endeavours and the evidence suggests that he has assets worth millions of dollars. Based on the telephone intercepts and the evidence placed before the Court, the prisoner is intelligent and a cunning person.
102 It is necessary to consider any mitigating factors. In my opinion, the delay in bringing this proceeding to trial and finalisation is a matter that I must take into account, and I do so. It does result in a substantial reduction in the period of imprisonment, however I am not aware of any other mitigating factor. The prospect of rehabilitation plays no part in this sentencing process. The prisoner's attitude to the law and authority shows a man who treats both with contempt. If what he stated to others in the recorded conversations is true, he is a man of considerable wealth and any dependants he has would be looked after, assuming he recognises his obligations to them.
103 It is necessary to briefly avert to the sentences imposed on the other participants in this importation. Mr U pleaded guilty on one count of being knowingly concerned in the importation of the cocaine and four State counts of possessing a drug of dependence, namely cannabis and various varieties of ecstasy. He was sentenced to a term of three years and three months' imprisonment on the Commonwealth count and the non-parole period was fixed at two years and three months.
104 The learned County Court judge, as required by the Crimes Act, was obliged to state that but for Mr U's co-operation in undertaking to give evidence against the prisoner, he would have imposed a sentence of six and a half years imprisonment and a non-parole period of four years and six months. I interpolate to note that Mr U pleaded guilty and this would have resulted in some reduction. He was sentenced to two months on each of the State counts and they were made concurrent with the Commonwealth sentence. Mr U's involvement was indeed central to organising the actual purchase, but in my view his role was far less significant than the prisoner's role.
105 It was noted by the learned sentencing judge in that case that much of what Mr U was doing, he was doing to impress the prisoner. On the evidence before me in this proceeding, I gained the same impression, that that was the motivating force behind the involvement of Mr U. The parity principle does not apply in the present matter because his role was significantly different to the prisoner's role. He was not the principal. Further, he pleaded guilty.
106 The brothers Sonny and Pale Schmidt pleaded guilty. Ron Cassar was found guilty of the count of being knowingly concerned in the importation. The learned County Court judge sentenced Mr Cassar to a period of six years imprisonment and fixed a non-parole period of four years. He appealed the sentence and the appeal was dismissed. Sonny Schmidt was sentenced to a period of three years, to be released after serving 18 months subject to him entering into an undertaking. With respect to Pale Schmidt, he was sentenced on the Commonwealth matters to two years imprisonment but the sentence was suspended.
107 The learned County Court judge who dealt with Cassar and the Schmidt brothers, His Honour Judge Hart, noted that parity of sentence did not apply because of the significant differences played by each participant. He also noted that Mr U had pleaded guilty and undertaken to give evidence against the prisoner, and further noted that Mr Cassar defended the count and was convicted.
108 In my view the parity principle does not apply here, however I do note that Mr Cassar's maximum sentence was six years with a four year non-parole period. The Court requested the Crown to provide details of sentences for drug offences throughout Australia. The Court was given details of sentences, however the Court must proceed with the utmost caution in considering sentences imposed in like cases because no cases are exactly the same.
109 Nevertheless, the cases demonstrate a range of sentences much influenced by the amount of the narcotic drug, the type and the level of participation by the prisoner. A useful summary is found in the judgment of Justice Hulme in the New South Wales Court of Criminal Appeal decision of R v Spiteri,[30] where His Honour summarised sentences imposed in cases involving principals engaged in cocaine involving quantities in the top half of the traffickable range. However, as I stated, sentencing is a matter for this Court, after considering and weighing all relevant matters in this proceeding and taking into account all the circumstances.
110 This Court is bound by s.16A(1) to impose a sentence which is of a severity appropriate in all the circumstances of the offence. I have discussed the relevant matters and carefully weighed all that I am obliged to do. It is an obvious observation that each person involved in illegal drug importation plays a vital role in the success of the operation. The roles vary from the financier to the couriers. It is trite, but a failure at any level brings the venture down. But the highest level of criminality is at the principal level, that of the instigator, the organiser, the planner and the financier.
111 The prisoner was at that level. He must be punished and deterred from like conduct. A strong message must be sent to those who are prepared to fund these illegal activities. In my view, the sentence which is appropriate in all the circumstances is to sentence the prisoner to a term of imprisonment of 12 years.
112 It is now necessary to consider whether there should be a minimum period of imprisonment. In other words, whether the Court should fix a non-parole period. The Court is obliged to do so by reason of s.19A(1)(d) of the Crimes Act unless it proposes to make a recognisance release order, which the Court does not propose to do. By reason of s.19A(3) the Court may decline to fix a single non-parole period, however, in my view I should fix a minimum non-parole period. The principles that guide the Court have been stated in a number of cases. I refer to Deakin v R[31] and Lowe v R.[32] The same factors which are taken into account on the head sentence are relevant to the exercise and must be weighed carefully in fixing a minimum non-parole period.
113 The weight which should be attached depends upon particular circumstances and as a general proposition, factors favourable to the prisoner, if there are any, are given more weight. In the circumstances, I am prepared to fix as a non-parole period the period of nine years.
114 By reason of s.16E(2) of the Crimes Act, the Court is bound to give effect to any pre-sentence detention. By reason of that section, s.18 of the Sentencing Act 1991 Vic applies. I make the declaration pursuant to s.18(4) of the Sentencing Act 1991 that the prisoner has been in custody for a period of 390 days calculated as follows: