R v Salgado-Silva

60742/00 HEYDON JA WOOD CJ at CL CARRUTHERS AJ

1 HEYDON JA: I ask Carruthers AJ to deliver the first judgment. 2 CARRUTHERS AJ: Salvador Salgado-Silva seeks leave to appeal against a sentence imposed upon him by his Honour Acting Judge Stewart in the Sydney District Court on 3 November 2000 in relation to the offence of importing a commercial quantity of cocaine into Australia, contrary to the provisions of s 233B(1)(b) of the Customs Act 1901. 3 The total amount of cocaine imported was 12.8 kilograms of 63% purity which produces 8.105 kilos of pure cocaine. In evidence before his Honour this was said to have a street value of approximately $3 million to $4 million. 4 On 9 August 2000 the applicant appeared for trial with his co-accused Juan Cordero-Vidal in the District Court before Acting Judge Stewart and both entered pleas of not guilty. Each was charged with one offence under s 233B(1)(b). Their joint trial proceeded until 21 August 2000 when the jury was discharged, the applicant was re-arraigned, and a plea of guilty was entered by him. On the following day Cordero-Vidal was re-arraigned before a new jury and his trial proceeded until 5 September 2000 when he was found guilty. The sentence proceedings for both were heard on 13 October 2000 and they were each sentenced by Acting Judge Stewart on 3 November 2000. 5 The maximum penalty for the subject offence is life imprisonment. His Honour sentenced Salgado-Silva to imprisonment for 17 years to date from 3 November 1999 and to expire on 2 November 2016 and fixed a non-parole period of 13 years also to date from 3 November 1999 and to expire on 2 November 2012. 6 His Honour sentenced Cordero-Vidal to 16 years imprisonment with a non-parole period of 11 years. His appeal is yet to be determined by this Court. It involves an appeal also against conviction in addition to an application for leave to appeal against sentence. 7 Bearing in mind the submissions which have been put to this Court in support of the application, it is convenient if I set out hereunder the document entitled "Outline of Crown Case" tendered to his Honour: "On 6 February 1999 Ferney Soto-Sanchez, a male Colombian national, born 19 October 1975, arrived at Sydney (Kingsford Smith) Airport. He subsequently obtained rental accommodation at unit 59, 1-5 Harwood Street, Pyrmont NSW 2009. On 26 September 1999 2 male Spanish nationals, Salvador Salgado-Silva, born 6 August 1970 in Spain, and Juan Cordero-Vidal , born 24 April 1963 in Spain, travelled from Spain to Miami, USA. On 8 October 1999 they departed Miami and travelled to Venezuela. They departed Venezuela on 29 October 1999 and travelled to the Caribbean island of Curacao, Netherlands Antilles, and then to Amsterdam, Holland. At about 4.50 pm on 3 November 1999 Salgado-Silva and Cordero-Vidal arrived at Sydney Airport on flight KL843 from Amsterdam. Salgado-Silva was in possession of a Spanish passport containing an 'electronic travel authority' authorising travel to Australia as a tourist, issued in Madrid on 24 September 1999. The passport was issued on 20 September 1999. He also had in his possession 2 plastic laminated identity cards styled as follows: 'NBC New York Salvador Salgado-Silva Cameraman NBC-04365901 PRESS' And 'CCB Canal Cultural Badajoz Nombre Salvador Apellidos Salgado-Silva Operador De Camara' He also had in his possession a document entitled 'NBC New York Script' which purported to itemise film work to be undertaken in Miami, Venezuela, 'Curazao', and Amsterdam. The final entry read 'General recording preparation Olimpics Games to celebrate in Sidney' (sic) Cordero-Vidal, similarly, was in possession of a Spanish passport containing an Australian visa issued on the same day, plus identical laminated cards, but referring to himself as an assistant cameraman. The passport was issued on 21 September 1999. The 2 men also had in their possession various other items including a large silver metallic suitcase, 2 large sports carry bags, one small backpack, a shoulder bag, one large video camera, and 9 'Beta' brand video tapes. The metal suitcase contained various items of video equipment including 2 black belts approximately 26 cms wide and 100 cms in length. The silver suitcase had attached to it an airlines baggage check-in label bearing the serial number 'KL074635'. A corresponding label was attached to the rear of Cordero-Vidal's airline ticket voucher. Attached to each belt were 12 pockets or pouches, each of which contained a rectangular plastic box measuring approximately 19 cms by 8.5 cms, totalling 24 boxes. Each plastic box was labelled as follows: 'anton bauer DIGITAL Propac Logic Series 2.0' On the reverse of each box further labelling referred to the items as 2 volt rechargeable batteries. The boxes in each belt were connected in series by means of electrical wiring to a single power outlet point. Each box contained a sealed lead inner lining or casing within which was secreted a quantity of compressed off-white cocaine powder. Some of the plastic boxes also contained, in addition to the cocaine, a number of small genuine batteries connected to the external wiring, such that each battery belt, if tested was capable of delivering an electrical current. The bulk weight of the cocaine powder totalled 12.862 kgs, consisting of 63% or 8.105 kgs of pure cocaine. At about 5.30 pm Salgado-Silva and Cordero-Vidal approached the customs inspection barrier for incoming passengers at terminal C. All items of luggage were loaded on a trolley which was being pushed by both men. Neither person appeared to understand when spoken to by the customs officers attending at the barrier. An examination of the luggage in the possession of Salgado-Silva and Cordero-Vidal proceeded. At about 5.40 pm the 2 battery belts were subjected to an ionscan examination. The test produced a positive reading for the presence of cocaine. In the course of the baggage examination Salgado-Silva and Cordero-Vidal, upon request, connected one of the battery packs to a camera. The camera was activated and appeared to function. At about 5.45 pm the battery packs were removed and subjected to X-ray examination. At about 6.10 pm Salgado-Silva and Cordero-Vidal were spoken to by a Spanish speaking customs officer. Salgado-Silva stated: 'We are working for a company in Spain, CCB. We've come to do work for NBC. We've come to Sydney to film the areas where they hold the Olympic games.' He added that neither he nor Cordero-Vidal had booked any hotel accommodation in Sydney, but rather they intended to telephone 'CCB' to ascertain further details. He said of the battery packs 'We picked them up from Amsterdam. … They were bought new.' When informed of the results of the ionscan test Salgado-Silva replied 'I don't know what is inside'. At about 6.30 pm customs officers subjected the 2 battery packs to a further ionscan examination which again disclosed the presence of cocaine. At about 7,30 pm Salgado-Silva and Cordero-Vidal were placed into the custody of the officers of the Australian Federal Police who had been requested to attend at the airport. At about 8.35 pm they were informed through an interpreter that the 'camera equipment' was to be removed for further examination at AFP headquarters. Both men replied that they were unaware as to 'what's inside'. At 2.02 am on 4 November 1999 Cordero-Vidal was formally interviewed at AFP headquarters. He stated that he was by occupation an assistant camera operator and that in about September 1999 in Spain he and Salgado-Silva had accepted an offer of employment involving filming 'tourist guides' at various locations on behalf of 'CCB' as a result of which he and Salgado-Silva travelled to Miami, Venezuela, Curaceo, Amsterdam then Sydney. He said he was unable to identify the person who had employed him. He said that he and Salgado-Silva had been provided with tickets and some money for expenses in Spain, but the camera equipment had been supplied to them in Miami plus the CCB and NBC identity cards and NBC itinerary. He said that he and Salgado-Silva had collected the battery packs from a 'transport agency' in Amsterdam prior to their arrival in Sydney. He denied knowledge of the cocaine in the batteries and asserted he had been tricked. At 4.45 am on 4 November 1999 Salgado-Silva was formally interviewed at AFP headquarters. He stated his occupation was 'salesman and I'm also a camera man and I do productions for TV', occasionally for CCB but in the present case he was contracted to NBC. He said that in Spain he had made contact with a person, one Octavio Quintero, a US citizen, who did 'jobs' for NBC. As a result he enlisted Cordero-Vidal as assistant camera man, whereupon they flew to Miami where he again met with Quintero and received instructions as to filming work to be undertaken. He said Quintero had supplied him with the NBC identity cards in Miami plus camera equipment. He and Cordero-Vidal then travelled to Venezuela where the battery packs were supplied, the silver suitcase and some other items of equipment, then to Curacao and Amsterdam, and finally to Sydney. He said he Quintero was supposed to telephone upon arrival in Sydney and provide instructions as to what to do with the battery packs. Later in the interview Salgado-Silva stated he suspected the equipment delivered to him contained drugs but that he was unaware it was cocaine. He stated that he and Cordero-Vidal were to be paid $US 20,000 each upon delivery and that he was prepared to assist the police with a controlled delivery. At about 9.55 am on 4 November 1999 AFP agents booked a room at the Furama Hotel, located on the corner of Elizabeth Street and Albion Street, Surry Hills. The AFP selected the hotel and were allocated a room number 302. At about 12.15 pm on 4 November 1999 Salgado-Silva attended room 302 in company with a number of AFP agents. Cordero-Vidal arrived a short time later. At about 12.26 pm Salgado-Silva made an outgoing telephone call to telephone service 0011-346-9679-9227. The dialling code for Spain is 0011-34. Salgado-Silva indicated he was late calling because he had been sleeping - 'the time has put me up sidedown'. He gave the other person the hotel telephone number and room number. The other person said he would contact a third person and that person would telephone Salgado-Silva soon. The other speaker asked 'Is all okay, all okay'. Salgado-Silva assured him 'All is okay'. A short time later an incoming call was received in room 302. Salgado-Silva answered. The caller asked where Salgado-Silva was located. Salgado-Silva stated 'Furama Central Hotel… 28 Albion Street… Surry Hills'. The caller said that a person will 'soon' attend on Salgado-Silva and that he should take a walk with that person: '… you go out to have a little walk with the man'. The caller asked Salgado-Silva for a description of himself. At about 2.57 pm there was a knock on the door of room 302. Salgado-Silva exited the room. At about 3.00 pm Salgado-Silva and Soto-Sanchez were observed crossing Albion Street in the vicinity of the Furama Hotel. They appeared to be engaged in conversation. The 2 men parted company on the northern corner of Albion Street and Mary Street. Soto-Sanchez turned and walked in an easterly direction along Albion Street. Salgado-Silva returned to room 302 at about 3.07 pm. At about 4.00pm Salgado-Silva made a telephone call from room 302 to the same number as previously, 0011-346-9679-9227. He confirmed that he had been out for a walk, but was concerned about things that person had said to him. The other speaker replied: 'See, what is happening is that they are… preoccupied with you because you are there since yesterday. … why didn't you call me yesterday as soon as you arrived, because you were supposed to report as soon as you arrived'. Salgado-Silva replied that he had tried to call but had been unable to get connected. The other speaker said 'you follow their instructions'. Each of these telephone conversations was recorded by Salgado-Silva by means of a hand held listening device. At about t4.30 pm there was another knock on the door to room 302. Salgado-Silva opened the door and Soto-Sanchez entered. The 2 men appeared to have a conversation. On the bed nearest the window lay the silver suitcase previously comprising a part of the luggage of Salgado-Silva and Cordero-Vidal. The 2 battery straps containing the cocaine powder were contained within the suitcase. Salgado-Silva indicated the silver suitcase. Both men walked towards the suitcase. Salgada-Silva opened the suitcase and he and Soto-Sanchez appeared to have a further conversation. Salgado-Silva then closed the silver suitcase and a short time later Soto-Sanchez was observed leaving room 302. At about 8.19 pm Soto-Sanchez again entered room 302 at the Furama Hotel. He was carrying an empty black 'Colmante' brand back pack with a light brown suede base section. Salgado-Silva and Cordero-Vidal were present. The silver suitcase containing the battery straps was lying on the bed nearest the window. To the left of the suitcase lay a large video camera. To the right of the suitcase lay a dark coloured bag. Salgado-Silva and Soto-Sanchez approached the silver suitcase. Salgado-Silva placed a light coloured bag on the bed to the right of the suitcase. Salgado-Silva opened the silver suitcase and removed the 2 battery straps. He placed the battery straps into the light coloured bag, as he did so Soto-Sanchez held the bag. Soto-Sanchez then assisted Salgado-Silva to close the bag but they were unable to. Cordero-Vidal opened the silver suitcase. Salgado-Silva placed the light coloured bag containing the straps into the suitcase. All 3 men appeared to have a conversation. Cordero-Vidal emptied the contents of the light coloured bag into the silver suitcase while Salgado-Silva obtained another dark coloured carry bag from the vicinity of the second bed. He tipped the contents of that bag on to the bed and carried it to the vicinity of the silver suitcase. Salgado-Silva then removed the battery straps from the silver suitcase and placed them into the dark bag he had emptied. He fastened the bag and placed it on the floor. Soto-Sanchez bent down to lift the bag containing the battery straps. At one point Soto-Sanchez said 'man you were to give all … you know'. The events in room 302 were electronically monitored by the AFP. At about 8.23 pm Salgado-Silva and Soto-Sanchez departed room 302. Soto-Sanchez carried the black bag and battery packs. The black 'Colmante' bag Soto-Sanchez came with was left in the room. Soto-Sanchez was arrested in the vicinity of an elevator near room 302 with the black bag in his hand. When asked by police what he was doing he replied 'I don't know anything'. When asked who owned the bag he again replied ' don't know anything'. In his possession at the time of his arrest was an amount of cash totalling $930 plus a green piece of torn paper with the following handwritten words on it '28 Albion Str, Surry Hills, HOTEL FURAMA CENTRAL'. The only calls made by or received by Salgado-Silva or Cordero-Vidal prior to the arrest of Soto-Sanchez are those referred to above. At about 10.23 pm Soto-Sanchez was interviewed at AFP headquarters. He denied he was holding the black sports bag when arrested. He said he had telephoned a friend by the name of Carlos Castro in Colombia on 3 November 1999. Carlos asked him to go to room 302 at the Furama Hotel and escort the occupant to a 'pub' where another person was expecting to meet the person from room 302. He said he first met Salgado-Silva and Cordero-Vidal when he attended at room 302 earlier in the afternoon, where he used the bathroom, and thereafter went for a short walk with Salgado-Silva. He said he then left Salgado-Silva and returned to his apartment at Pyrmont. He stated he returned to room 302 later that evening to escort Salgado-Silva to the nominated pub. He denied visiting room 302 at 4.30 pm. He said that when he arrived in the evening the following occurred: 'I went in, I told him we have to go to see this man. He said he couldn't - he was having problems packing those things in - in the bag. So, he asked me to go and help him. Then I help him and then we - I took the camera to help him and then we left. … I was carrying a small bag because I had to take some things back home. So I offered him if he wanted to pack it in that bag but he said no, it was too small.' At 9.59 pm on 10 November 1999 Salgado-Silva was again interviewed at Australian Federal Police headquarters. He stated he and Cordero-Vidal had been recruited in Spain by Quintero, that they stayed with Quintero in Miami and observed the manufacture of the false CCB and NBC identification cards. He confirmed the battery packs were supplied in Venezuela. At about 6.04 am on 5 November 1999 officers of the AFP executed a search warrant at unit 59, 1-5 Harwood Street, Pyrmont seizing a number of documents personal to Soto-Sanchez. Two female persons were present when the police searched the premises." 8 As to the objective facts, his Honour said they were very serious and established that, "this importation was a carefully planned operation." His Honour continued "they also showed beyond reasonable doubt, that is to say the objective facts showed beyond reasonable doubt that both prisoners are more than mere couriers, although [Salgado-]Silva was the senior of those two in the organisation, and importation." 9 He continued, It is abundantly clear that their reason for coming to Australia was to import the drugs they had acquired in Venezuela and to pass them on to another member of the organisation." His Honour noted the false accounts given by both Salgado-Silva and Cordero-Vidal to customs officers and police which, his Honour said "were designed to mislead and obfuscate." 10 His Honour referred to the ultimate decision by both men to help police with a controlled delivery culminating in the arrest of Soto-Sanchez by Australian Federal Police agents after Soto-Sanchez had actually taken delivery. 11 His Honour expressed satisfaction beyond reasonable doubt that both men were in the position of what has been called "middle men" in some cases, overseers in other words, of importing not less than a commercial quantity of a higher range drug. Later his Honour said: "The objective facts in this case clearly establish that the prisoners played a very important role with what I have already described as carefully planned importation of these narcotics for commercial gain." 12 When emphasising the objective seriousness of this matter, his Honour referred to the remarks of Lee J in R v Shepherd (1982) 37 A Crim R 303 at 313. Lee J there made the point that offenders: "…acting in combination to achieve unlawful ends present a far greater evil and danger to the community than do the acts of individuals acting alone to achieve their nefarious ends". 13 That was, in the subject case, an apposite observation. Added to that was the use by the offenders of false identification where they used the names of highly reputable organisations. 14 Turning to subjective factors, his Honour took into account the applicant's prior good character, albeit his Honour acknowledged the authorities that establish that in a case such as the present, less weight should be accorded to the question of good character: see e.g. R v Leroy [1984] 2 NSWLR 441 at 446. 15 His Honour acknowledged the problem of serving a sentence in a foreign country as a difficulty to be faced by the applicant. However, his Honour does not appear to have treated that as an ameliorating factor so far as the determination of the quantum of sentence was concerned. This approach was clearly open to his Honour: see R v Ferrer-Eisis (1991) 55 A Crim R 231 at 239. 16 His Honour took into account the plea of guilty by the applicant, albeit once again the last witness for the Crown had almost completed his evidence when the applicant entered the plea of guilty, which was an acknowledgment of the inevitable. Nevertheless, his Honour took this into account, as he was required to do, pursuant to s 16A(2)(g) of the Crimes Act 1914. 17 His Honour also took into account, pursuant to para (h) of ss (2) of s 16A, the fact that the applicant rendered assistance to the authorities. His Honour noted, however, that neither the applicant nor Cordero-Vidal intends to give evidence against Soto-Sanchez. 18 His Honour made reference to psychiatric reports to the effect that the applicant was demonstrating symptoms consistent with a major depressive episode. He had lost some sixteen kilograms in weight and was not eating well. He tires with minimal effort and his concentration is impaired. However, there was no evidence of any thought disorder or delusions. His prognosis is uncertain. The applicant contended that he undertook this criminal exercise because of financial difficulties he had incurred in Spain. 19 His Honour noted by way of some guidance that in R v Wong & Leung (1999-2000) 48 NSWLR 340, Spigelman CJ proposed the following sentence range in relation to the importation of a substantial commercial quantity of a prohibited drug (being 3.5 kilograms to 10 kilograms) of 10 to 15 years imprisonment by way of a head sentence. That range was intended to apply in the case of couriers and persons low in the hierarchy of the import organisation. 20 Having noted that s 16G of the Act required him to take into account the absence of remissions in New South Wales, his Honour assessed a head sentence of twenty-five years' imprisonment. His Honour then discounted that figure by twenty per cent for the assistance to the authorities, leaving a figure of twenty years. His Honour then allowed a discount of "about fifteen per cent" for the plea of guilty, resulting in a reduction of the above figure to seventeen years. That, as I have indicated, was the sentence which his Honour imposed by way of a head sentence. 21 His Honour did not indicate how he calculated the non-parole period, although it is immediately to be noted that it was just a little under 75% of the head sentence. Specifically, his Honour gave no reason why he would depart from the generally accepted range of 60 to 65% as a proportion of the head sentence. 22 There are effectively four grounds of appeal. Firstly, that the sentencing Judge erred in setting too high a starting point to represent the objective criminality inherent in the offence. Secondly, he erred in his approach to fact-finding which resulted in identifying the applicant's role in the enterprise at a higher level than supportable on the evidence. Thirdly, that he erred in the determination of the appropriate ratio between the non-parole period and the head sentence, because this was not a "worst case". And, finally, the sentence is on its face manifestly excessive. 23 As to the role of the applicant, it is contended that it cannot be determined on the available evidence that he was a promoter of the enterprise and his role was 'senior' to Cordero-Vidal only in the sense that as the primary courier he had recruited Cordero-Vidal in order to share the task and, no doubt, to make his "cover" more credible. 24 It is appropriate at this stage to recall the following passage from the majority judgment (Gleeson CJ, Gaudron, Hayne and Callinan JJ) in The Queen v Olbrich (199-2000) 199 CLR 270 at 277: "We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process. It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate." 25 In that case the High Court held that the sentencing Judge had correctly rejected the respondent's contention that he was merely a courier and that he was correct "to simply apply normal sentencing principles, taking into account the nature of the offence, the maximum penalty and such other matters which are relevant to an assessment of the objective features of a criminal offence." 26 Those remarks are particularly apposite to the subject case. The sentencing Judge had been unable to accept the reliability of certain assertions by the applicant relating to the role which he played in this criminal enterprise. This made his Honour's task necessarily more difficult so far as precise assessment of the applicant's involvement. 27 It was incumbent on the applicant to prove on the balance of probabilities that he was to be regarded as a courier, as that was a matter which he sought to have taken into account in mitigation of his sentence: see Olbrich at 281. The applicant failed, however, to discharge this onus. 28 The Crown has identified, correctly in my view, certain specific matters which his Honour could have taken into account in his determination (expressed in different ways) to the effect that the applicant was involved at a high level in the hierarchy of the organisation. 29 Firstly, there are the circumstances which preceded the applicant's arrival in Sydney, he having travelled from Spain to Miami where he spent almost two weeks, then three weeks in Venezuela, then to Curacao, then to Amsterdam and from there to Sydney, during which journeys he used false documents and participated in the collection of the drugs. 30 Secondly, the Crown refers to the content of calls between the applicant and Quintero and the discussions with Australian Federal Police Officers which preceded them, which made it apparent that his knowing involvement with Quintero related to something other than filming. In particular, it is clear that he knew prior to his arrival in Sydney that he was supposed to contact Quintero immediately upon arrival and that he was to hand the batteries over to someone. 31 Having rejected the applicant's contention that he was merely a courier, it was then appropriate for his Honour to consider the degree of objective criminality revealed by the evidence before him, which was available for his acceptance. In essence, the applicant was demonstrated to be an importer of the drugs. The factual matrix demonstrated a high level of criminal conduct by the applicant which, as his Honour said, merited condign punishment. However one categorised his involvement, it was beyond the role of a courier or a person low in the hierarchy, to use the phrase in Wong. I would, therefore, reject grounds 1 and 2. 32 The remaining grounds of appeal may be dealt with together and in a general fashion. 33 By a process of analysis, counsel for the applicant has sought to dissect his Honour's sentencing process as follows. It would appear, it is contended, that his Honour must have used, as an actual starting point, some 37.5 years. This is, of course, before reaching the figure of 25 years as a starting point, as explained above. His Honour must, in accordance with general practice, have allowed a discount to the order of 33 1/3 % to allow for the fact that remissions are not available in New South Wales, to reach the figure of 25 years. 34 This analysis, it is suggested, demonstrates that the subject sentence places this matter near, or at the level appropriate to, a worst case. However, there is not the massive quantity of drug involved or the high level of involvement on the part of the applicant necessary to attract such a categorisation to this case, as counsel for the applicant contends. 35 This analysis by counsel for the applicant, which produced an asserted starting figure of 37.5 years, is of interest because it demonstrates, once again, that it is inappropriate for a sentencing Judge to adopt a mechanistic approach to the assessment of an appropriate sentence when it comes to the application of discounts and allowances for the various subjective matters which his Honour was required to take into account. With so many sentencing principles jostling against each other for primacy, a balancing exercise must necessarily be undertaken to reach an appropriate sentencing regime. 36 In their written submissions, the parties have drawn our attention to a number of cases which provide some assistance for evaluating whether his Honour's sentence was manifestly excessive. We have been provided with a lengthy and detailed schedule by the Crown of sentences imposed under Pt 1B of the Act after review by this Court. Some cases are of particular interest. I cite Laurentiu (1992) 63 A Crim R 402, Contreras-Ortiz [2000] NSW CCA 328, Covacs [2000] NSW CCA 74, Spiteri [1999] NSW CCA 3 and Heeng Ung [2000] NSW CCA 195. 37 Although every case is different, both from an objective and a subjective point of view, those cases do, it seems to me, provide some helpful guidance here. 38 If I could pause at this stage to interpolate that the Crown (fairly and in my view correctly) concedes that his Honour, having indicated that the subject case was not amongst the worst cases, may have been in error in fixing a non-parole period which was approximately seventy-six per cent of the head sentence. It is now well-established that a non-parole period in the region of 75% should be reserved for the worst class of case: see for example Guzman and Henao [2000] NSW CCA 261, and cases there cited. 39 It has been accepted by this Court in a number of cases that the appropriate practice is to fix a non-parole period of between 60 to 66%, except for the worst class of case: see Regina v Bernier (1998) 102 A Crim R 44. This practice may apply even if the role of the offender is more than a courier. See, for example, Regina v Meloh (2001) NSW CCA unreported 21 May 2001. 40 I am not persuaded that, balancing the objective and the subjective circumstances and by reference to comparable cases, that the intervention of this Court is called for in so far as the head sentence is concerned. 41 It was within the sentencing range which was available to his Honour. The case is not, however, one which justifies a departure from the generally accepted ratio between the non-parole period and the head sentence. This requires the intervention of this Court in so far as the non-parole period is concerned. I would propose, therefore, the following orders:

1. That leave to appeal be granted.
2. That the appeal be allowed.
3. That the head sentence imposed by Acting Judge Stewart be confirmed but that the non-parole period be set aside.
4. The non-parole period be fixed at 11 years and 4 months to date from 3 November 1999 and to expire on 2 March 2011 which represents a ratio between the non-parole period and the head sentence of two-thirds. 42 HEYDON JA: I agree. 43 WOOD CJ at CL: I also agree. 44 HEYDON JA: Your appeal has succeeded, to some extent. I am obliged to explain to you what the effect of the new sentence is. Your barrister will explain it to you afterwards in case you do not understand what I say now. 45 The new sentence means that you will serve a minimum term of imprisonment of eleven years and four months before being eligible for release on parole on 2 March 2011. 46 That release will be available for a period of up to a further five years and eight months. Neither of those periods is subject to any further reduction for remissions. That reduction has already been taken into account by the Court in fixing the periods which would otherwise have been appropriate for your offence. 47 It may well be that after eleven years and four months you will be deported but if not you may be released on parole. If so, that will be subject to supervision and also to the various conditions, including a condition that you be of good behaviour. 48 If during any period on release on parole you re-offend, or breach any of the conditions of parole, then parole may be revoked and if that happens you will be liable to return to prison to serve the balance of the sentence. 49 Alternatively, the parole may be amended to provide a partial return or altered provisions as to the supervisional conditions to which you would be then subject. 50 Accordingly, the orders of the Court will be those which Carruthers AJ proposed. o0o

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