R v Schofield

CITATION : R v Schofield [2003] NSWCCA 3 HEARING DATE(S) : 22 November 2002 JUDGMENT DATE : 6 February 2003

CATCHWORDS : Sentencing - Crown appeal against alleged manifest inadequacy of sentence - attempted possession of prohibited imports - not less than a commercial quantity of Ecstasy - two further offences on a Schedule - respondent elects not to give evidence at sentence hearing - whether and to what extent judge entitled to act upon hearsay material - probation and parole report and statements made from the bar table - appropriate allowance for assistance to the authorities considered. Crimes Act 1914, s 16A(2), s 16G, s 20(1)(b) LEGISLATION CITED : Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act, 2002 Customs Act 1901, s 233B (1), 233B(1)(c), 235(2) Amran Efendi v R [2001] NSWCCA 39 Bradley (1997) 137 FLR 314 Dinsdale v The Queen (2000) 202 CLR 321 Doan (unreported, CCA 27/9/96) Dodd (1991) 57 A Crim R 349 Fabian (1992) 64 A Crim R 365 Klein (2000) A Crim R 90 Le Cerf (1976) 8 ALR 349 Malvaso v R (1989) 168 CLR 227 Muanchukingkan (1990) 52 A Crim R 354 Perrier & Richardson (1990) 59 A Crim R 164 Postiglione (1991) 57 A Crim R 301 Radenkovic v The Queen (1990) 170 CLR 623 R v Allpass (1993) 72 A Crim R 561 R v Barientos [1999] NSWCCA 1 R v Baugh [1999] NSWCCA 131 R v Behar (unreported, CCA, 14/10/98) R v Benais [1999] NSWCCA 236 R v Bigic [2000] NSWCCA 9 R v Bimahendali (unreported, CCA, 15/12/99) R v Blakeman [1999] NSWCCA [1999] 415 R v Bourel (unreported NSWCCA 11/12/98) R v Bowers (1997) 97 A Crim R 461 R v Budiman (1998) 102 A Crim R 411 R v Bushell (unreported, CCA, (unreported, CCA, 7/8/98) R v Camilleri (unreported, CCA, 8/2/90) R v Camus [1999] NSWCCA 425 R v Capper [2000] NSWCCA 63 R v Carey (1997) 97 A Crim R 552 R v Chu (unreported, 16/10/98 CCA) R v Dinic (1997) 149 ALR 488 R v Dizel (unreported, CCA, 23/8/96) R v Dollwett (unreported, CCA, 6/7/93) R v Durant [2002] NSWCCA 295 R v El Karhani (1990) 21 NSWLR 370 R v Gallagher (1991) 23 NSWLR 220 R v Guinan [2001] NSWCCA 55 R v Guiu [2002] NSWCCA 181 CASES CITED : R v Hauser (unreported, 11/12/97, CCA) R v Jermyn (1985) 2 NSWLR 195 R v Jurisic (1998) 45 NSWLR 209 R v Kalache [2000] NSWCCA 2 R v Laurentiu & Becheru (1992) 63 A Crim R 411 R v Lim & Yeung [2002] NSWCCA 293 R v Malcolm McDonald (unreported, CCA, 12/10/1998) R v McGregor (2000) 120 A Crim R 24 R v Majors (1991) 54 A Crim R 334 R v Meloh [2001] NSWCCA 211 R v Moffitt (1990) 20 NSWLR 114 R v Niketic [2002] NSWCCA 425 R v Olbrich (2000) 117 A Crim R 326 R v Olbrich (1999) 199 CLR 270 R v Palu [2002] NSWCCA 381 R v Pejovski [2001] NSWCCA 182 R v Power [1999] NSWCCA 25 R v Robertson [2000] NSWCCA 266 R v Rose (unreported, CCA, 23/5/96) R v Rocco [2001] NSWCCA 124 R v Schluenz [2002] NSWCCA 314 R v Schmakowski [2001] NSWCCA 395 R v Simpson (2001) 53 NSWLR 704 R v Slatinee [1999] NSWCCA 2 R v Soonius (unreported, CCA, 29/5/98) R v Spillane [1999] NSWCCA 280 R v Tan [2001] NSWCCA 219 R v Chiap Nam Tan [2001] NSWCCA 438 R v Taouk (1992) 65 A Crim R 387 R v Tony Giam (No 2) [1999] NSWCCA 378 R v Tyler [2002] NSWCCA 272 R v Van Den Akker [1999] NSWCCA 426 R v W [2002] NSWCCA 192 R v Whyte [2002] NSWCCA 343 R v Wong & Leung (1999) 48 NSWLR 340 R v Woolery [2002] NSWCCA 299 R v X & R v Y [2002] NSWCCA 40 Veen v The Queen [No 2] (1988) 164 CLR 465 Wong v R (2001) 207 CLR 584 Wong & Leung v The Queen 76 ALJR 79 PARTIES : Regina v Vichai Schofield FILE NUMBER(S) : CCA 60435/02 COUNSEL : Crown - M. Cinque Respondent - P. Hamill SOLICITORS : Crown - Commonwealth Director of Public Prosecutions Respondent - Robertson, Saxton, Primrose Dunn

Thursday, 6 February 2003 REGINA v Vichai SCHOFIELD Judgment 1 HEYDON JA: I agree with Carruthers AJ. 2 HULME J: In this matter I have had the advantage of reading in draft form the Reasons for Judgment of Carruthers AJ. Subject to the matters referred to below and with the exception of his Honour's conclusion as to the appropriate sentence to be imposed on the Respondent - a sentence which should, in my view, be higher - I agree generally with his Honour's remarks. His Honour's detailed reference to the circumstances of the offence and proceedings also removes the need for me to recapitulate them. 3 In my view her Honour erred in her treatment of the Respondent's criminal history. After referring to the most serious prior offence being one of malicious wounding, the fact that the Respondent was serving the parole period of the sentence imposed for that offence at the time off commission of the drug offence which brought him before her, and that that was an "aggravating feature", her Honour continued:- "However, it should be seen in the context that the offence of malicious wounding is an offence of an entirely different sort to the offence that is before this Court. Otherwise, the matters on the offenders criminal record fall into the category, generally, of driving matters and minor dishonesty matters." 4 The Respondent's criminal record included 3 traffic convictions in 1997 and 4 in 2001. The latter group included one described as "possess thing like Australian driver licence with intent to deceive". In 1996 he was convicted of "possession of implements to enter conveyance" and "possession of offensive implement". In August 2001, one month before the commission of the offence with which Judge Murrell was concerned, he was convicted of "goods in personal custody reasonably suspected of being stolen" and "make false instrument with intent to use". It was in August 2000 he was convicted of malicious wounding and, as the result of a successful appeal, sentenced to periodic detention, with its associated parole period to which reference has been made. 5 The written submissions given to her Honour by the Crown included quotation of the well known passage from Veen v R (No 2) (1988) 164 CLR 465 at 477 to the effect that:- "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and the protection of society may all indicate that a more severe penalty is warranted." 6 Instead of merely passing the Respondent's record off as "of an entirely different sort" and "generally, of driving matters and minor dishonesty matters", the above summary of the record makes it clear that her Honour should have found that the Respondent was manifesting "a continuing attitude of disobedience of the law" and dealt with him on that basis. See also R v Malcolm McDonald (unreported, CCA, 12 October 1998) 7 A second area of error lay in her Honour's remarks and findings in the following passage:- "The offender states that he was unaware of the quantity or nature of the substance in the crate. That assertion accords with what the Court knows of the offence. He states that he was asked by a "friend" to help out by going to the premises and assisting in the collection of the drugs, without knowing anything about it. He asserts that he was not to receive any reimbursement whatsoever. There is nothing in the prosecution facts to suggest otherwise, and the nature of the offender's role so far as the prosecution evidence is concerned is quite consistent with these assertions by the offender. The bottom line is that the offender, knowing that he was carrying drugs, but not knowing the quantity or nature of drugs being transported, conveyed the drugs a short distance under the direction of another person who was the organiser of that part of the operation without receiving any reimbursement for his efforts. This must place him at the very bottom of the pyramid of levels of involvement with offences of this type." 8 The reference in the second of these paragraphs indicates, inter alia, an acceptance of the Respondent's statements referred to in the first paragraph. But those statements were not contained in evidence. The Respondent gave none. They were not contained in a contemporaneous record of interview which might have had indications of truthfulness about it. The Respondent declined to participate in such an interview. They were not even contained in the Pre-sentence Report. If one treats them as having been made by the Respondent, they can only have been made through the mouth of his counsel at the sentencing proceedings presumably during his address on penalty and after the evidence had closed. There seems to be a detailed transcript to that time, a transcript which records, after a witness called on behalf of the Respondent had retired, "CLOSE OF CASE FOR OFFENDER". 9 Made in those circumstances the statements were neither tested nor capable of being tested. Their author was a person whose criminal record showed a number of offences of dishonesty and the statements were made at a time when he had much to gain and nothing to lose by putting before the Court a favourable account which could not be positively disproved. And the fact that "there is nothing in the prosecution case to suggest otherwise", when the likelihood was that the prosecution could have no information on the topics of the Respondent's subjective knowledge, takes the matter no further. Subject to one matter to which I refer below, and even though the rules of evidence did not apply, counsel's statements that the Respondent was ignorant of the nature and quantity of drugs and that he was to receive no remuneration had no probative value and there was no reasonable basis on which they could be, or should have been, accepted. 10 In this regard there is one matter of evidence which was before Judge Murrell SC, additional to that to which Carruthers AJ has referred. The evidence showed that the Falcon WSF 057 in which the Respondent transported the crate containing the drugs was owned by Mr Peter Ling, the Respondent's partner in the café business. When one adds to this the other evidence referred to by Carruthers AJ that Mr Peter Ling's father hired the car in which the co-offender Mr Lee decamped, that the Respondent contributed not only his own efforts but also his vehicle which was driven by someone else throughout the operation, her Honour's acceptance of the Respondent's ignorance and claim of no remuneration becomes even harder to understand. 11 I indicated a moment ago that there was one reservation to my conclusion that the statements that the Respondent was ignorant of the nature and quantity of drugs and that he was to receive no remuneration had no probative value and there was no reasonable basis on which they could be, or should have been, accepted. That reservation arises out of a passage in the judgment of the majority in R v Olbrich (1999) 199 CLR 270 at 281 (omitting a citation):- "Much of the discussion of fact finding for the purposes of sentencing addresses question of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecutor and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. ( We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion .)" (my emphasis) 12 Uncontested evidence was placed before this Court that "at no stage during the addresses did the solicitor appearing for the Crown raise any objection to the matters being put from the bar table and at no stage did she state there were any factual disputes arising from the matters so put" and it was submitted that it flowed from the remarks I have quoted that her Honour was entitled to make the findings that she did. 13 The first thing that may be said about the parenthesised passage is that it was not necessary for the High Court's decision in R v Olbrich and accordingly not one by which this Court is bound. The second is that, if taken literally, it introduces, without discussion or reasoning, an entirely new dimension into sentencing proceedings. 14 Taken literally, and in light of the rules of natural justice, the passage means that insofar as the necessity for the calling of evidence is an unwillingness of the judge to act on an assertion, the judge is under an obligation during the course of the sentencing proceedings and before the opportunity of calling evidence has passed, to indicate what assertions he or she is not prepared to act upon. 15 Commonly, there are many such assertions, some contained in pre-sentence reports, some in psychological and the like reports (not infrequently canvassing much of the offender's life) and some from the bar table. Commonly the assertions will vary in importance and they are liable to cover the range between inherently probable and inherently improbable. Not infrequently a judge, minded to reserve his decision, will not during the sentencing proceedings in any comprehensive fashion decide which assertions he is not, or may not be, prepared to act upon. 16 But unless the judge informs the parties what he is not disposed to act upon, how can they know that it is necessary to call evidence? It cannot have been the intention of the authors of the passage, so briefly expressed, to impose such an obligation on a sentencing judge. 17 A requirement, or recognition of a requirement, that an opposing party controvert any asserted fact which it is desired to dispute is not so radical a change to sentencing proceedings. Carruthers AJ has drawn attention to the remarks in R v Palu as to the need for parties to identify with particularity the areas of dispute and it is an elementary proposition that opposing parties, both of whom have rights of appeal, can be expected to do so. 18 But even in this respect also, the passage cannot have been intended to be taken literally. It cannot have been intended that however many assertions are put forward from the bar table or in reports tendered, and however improbable, inherently or in the light of other information in the proceedings, any of those assertions may be, the opposing party is bound to formally register his disagreement with them. The High Court cannot have intended to so adapt the old adage that he who asserts must prove into, in sentencing proceedings, "he who must prove need only assert, and the onus is on others to disagree". 19 One is entitled to look at the reality of how sentencing proceedings are conducted. Assertions are, as I have indicated, often very numerous. Presumably most are intended by their makers, or counsel tendering the statements, to be taken into account or acted upon. Not infrequently the statements, or some of them, are not ones which can rationally be acted upon but neither the opposing counsel, who may be crediting the judge with some common sense, nor the judge think it necessary to canvass those matters. If counsel for the Crown is obliged to deal with every assertion of fact just because it is made, often without notice, and whether it should rationally be accepted or not, on pain of the risk of having the matter forever precluded against his client, sentencing proceedings are likely to be significantly prolonged. 20 The proceedings before Judge Murrell in this case provide a good example. Counsel for the Respondent announced that he would not be in a position to call his client. The Respondent was physically present. There was no legal impediment to him being called, so presumably counsel meant that he saw the disadvantages of calling his client as outweighing the advantages and chose not to call him to adduce evidence of the matters to which he could depose. Counsel for the Respondent called no other evidence as to his client's knowledge or as to the circumstances of his participation in the offence and closed his case. It was after the evidence was closed that he apparently made the assertions her Honour relied on. 21 Given their nature - the Respondent's knowledge, extent of involvement and remuneration - that the Respondent had consciously elected to give no evidence on the topics, and was in any event someone with a recent record of dishonesty, it seems to me that the Crown was fairly entitled to think that there was no rational possibility that her Honour would accept what was asserted. They were of a nature such that it was in the highest degree unlikely that in the circumstances of the case the Crown would be in a position to contradict them and, indeed, if the Crown had any evidence on the topics, one would have expected it to have been called during the course of its case in chief during the sentencing proceedings. And the time at which the assertions were made, after evidence had closed and the Crown had addressed, added further to the unlikelihood that they might be accepted. Indeed, although I do not suggest that the situation was irremediable, it was quite inappropriate if not unfair, for those topics to be raised as late as they were. 22 Given the matters referred to in the immediately preceding paragraph, one could not in the circumstances regard silence on the part of the Crown as agreement in any sense and, although I accept that her Honour was theoretically entitled to take account of assertions of fact made at that stage of the proceedings, I do not see that her acceptance of them should be beyond challenge any more than any other conclusion of fact. 23 Nothing I have said is intended to encourage any failure on the part of legal representatives to make perfectly clear what matters of significance are in dispute and, given the importance of the matters asserted, if only out of an abundance of caution, the solicitor appearing for the Crown should have done so in this case. However, it is not in my view either possible or practicable to have a blanket rule as a literal approach to the remarks I have quoted from R v Olbrich would suggest. 24 Neither does a failure to controvert an asserted fact necessarily preclude a challenge in this Court to a trial judge's acceptance of it. The passages quoted by me in R v Kalache [2000] NSWCCA 2 at [213-216] from R v Allpass (1993) 72 A Crim R 561, Malvaso v R (1989) 168 CLR 227 and R v Jermyn (1985) 2 NSWLR 195 support this view. Of course, there are differences in the circumstances under consideration in those cases compared with a challenge under appeal to a previously undisputed matter of fact but while some of those differences argue more strongly against a challenge being, as a matter of discretion, permitted, some argue in the opposite direction. 25 Of course a failure to controvert an asserted fact at first instance will commonly prevent any challenge on appeal succeeding. To make such a challenge only after the opportunity for calling evidence of the asserted fact is past would generally be unfair. Sometimes the absence of challenge will justify the conclusion that the asserted fact was, in effect, common ground. Furthermore, once it be accepted, as it must be, that a judge is entitled in sentencing proceedings to act on assertions of fact unsupported by formal evidence, the absence of any contemporaneous challenge is calculated to make more difficult the task of convincing an appellate court that the judge was in error in the conclusion of fact he reached. 26 In this case, a challenge for the first time in this Court creates no unfairness. The Respondent through his counsel had made a deliberate decision that evidence would not be called to support the assertions. The Crown of course faces the difficulty of persuading this Court that her Honour's factual finding was wrong but I have already indicated why in that respect the challenge should succeed. 27 While I do not accept that her Honour was justified in finding that the Respondent was ignorant of the quantity or nature of the drugs with which he was involved, I accept that there is no evidence that the Respondent had such knowledge. However, I am by no means persuaded that the Respondent's claimed ignorance of the nature and value of the drugs is a matter which is of assistance to him. He was prepared apparently to assist, whatever the nature of the drugs and, subject perhaps to some limits influenced by the weight of the automotive transmission assembly (46 kg) or the crate containing it, whatever the quantity. In those circumstances, I see no reason why, to the extent to which the nature and quantity of the drugs are relevant, his criminality should be measured otherwise than by the nature and quantity with which he was involved. 28 In so concluding I am not unconscious of the remarks of Gaudron, Gummow and Hayne JJ in Wong v R [2001] 207 CLR 584 at [64] that "the greater the offender's knowledge … the heavier the punishment that would ordinarily be exacted". While I do not dissent from that as a general proposition, it seems to me to have no application in this case. 29 Nor do I regard her Honour's findings that the Respondent's participation was without receiving any reimbursement as particularly significant. There was no evidence he was to be remunerated. More importantly, there was no evidence he was to share in the profits dealing in drugs can produce. I doubt whether evidence of some lesser remuneration would cause me to materially change my views as to the sentence appropriate to the Respondent's criminality as revealed by the evidence and am content to proceed on the assumption that he was not in fact, and was not to be, remunerated. 30 In this Court the Crown also criticised her Honour's findings firstly, that the Respondent merely conveyed the drugs a short distance under the direction of another person who was the organiser of that part of the operation and secondly, that he was at the very bottom of the pyramid of levels of involvement with offences of this type. To these one should probably add a later reference wherein her Honour categorised the Respondent's role as "one of a driver. I suppose that is a category of courier, but a fairly lowly category of courier". 31 However, before Judge Murrell the Crown submitted that:- The Prisoner's role appears to be that of a courier, in that he assisted in picking up the narcotics and driving them to a location where they were discarded. If the Prisoner wishes to be characterised as a courier in mitigation of his sentence the onus is on him to establish it on the balance of probabilities: R v Olbrich." 32 Given the Respondent's role as disclosed in the Statement of Facts largely detailed by Carruthers AJ, I am not persuaded that her Honour's description of the Respondent's role was, in any sense that matters to the outcome of this appeal, erroneous. Furthermore, insofar as sentences in earlier cases may throw light on what sentence should be imposed on the Respondent, it is the group of cases dealing with couriers and others at, or close to, the bottom end of the spectrum of drug dealing offenders from which one is most likely to gain guidance. 33 I turn then to the question of the sentence itself. So far as presently relevant the Customs Act provides that an attempt to obtain possession of not less than a commercial quantity of Methylenedioxymethamphetamine or Ecstasy renders the offender liable to life imprisonment (and a fine of $750,000). A commercial quantity is 500 grams or more. Where the attempt involves an amount of .5 gram but less than 500 grams (a trafficable quantity) the maximum penalty is imprisonment for, subject to the impact of s16G of the Crimes Act (Cth), 25 years and a fine of $500,000. The effect of s16G is to reduce that maximum to, effectively, about 16½ or 17 years - see R v Bourel (unreported NSWCCA 11 December 1998); El Karhani (1991) 21 NSWLR 370 at 385; Bradley (1997) 137 FLR 314; Doan (unreported, CCA, 27 September 1996); Li (1998) 1 VR 637 at 641-2. 34 The provisions of the Customs Act thus make very clear that Parliament regards dealing in ecstasy very seriously and something to be strongly deterred. No great experience in the courts is needed to see the harm that drugs such as ecstasy do and to know that superior courts also have made it abundantly clear that "stern punishment" - (2001) 207 CLR 584 at [64], or "heavy penalties" - Le Cerf (1976) 8 ALR 349, at 351, should be imposed. 35 Deterrence is to be given chief weight in the sentencing task - Wong v R at [64]. See also the authorities cited in R v El Karhani (1990) 21 NSWLR 370 at 371-2. Furthermore, as was accepted in Schmakowski [2001] NSWCCA 395 at [27-8]:- "It must be seen that there is a real price to pay for flaunting the laws prohibiting the importation of drugs. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent." 36 To similar effect are the remarks of Simpson J, with whom Meagher JA and Sperling J agreed, in R v Benais and which were quoted with approval in R v Bimahendali at [32]:- "(23) 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 ecstacy. (24) 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." 37 The remarks quoted apply equally to those who choose to assist the importers or those who deal with the drugs after importation. 38 A sentence must reflect the objective seriousness of an offence - R v Camilleri (unreported, CCA, 8 February 1990); Dodd (1991) 57 A Crim R 349; R v Whyte [2002] NSWCCA 343 at [157] - and this principle extends to the non-parole period - R v Simpson (2001) 53 NSWLR 704 at [63]; R v Behar (unreported, CCA, 14 October 1998) and the cases there cited. 39 A sentence of imprisonment for a period of 28 months, including a non-parole period of 18 months on someone who gave active assistance in an attempt to possess either 2 kilograms of ecstasy, or an unknown quantity of an unknown, but known to be illegal, drug, gives no recognition to the matters referred to in the immediately preceding paragraphs. The sentence is neither stern, nor heavy, nor an effective deterrent to others. It bears no reasonable relationship to sentences imposed in other cases, which have come before this Court and to a number of which - R v Bowers, R v Budiman, R v Bushell, R v Dinic, R v Hauser and R v Spillane - her Honour was referred. (Attached to these Reasons is a schedule which contains reference to these and other cases. It is accordingly unnecessary to provide their citations here.) A fortiori is there no reasonable relationship when regard is had either to the quantity of drug with which the Respondent was involved or even the simple fact that, as reflected in the charge against him, it was a commercial quantity.

41 Nor are there any circumstances which argue in any way persuasively against this Court imposing on the Respondent, as commonly occurs in successful Crown appeals, the least sentence that should have been imposed at first instance - R v Rose (unreported, CCA, 23 May 1996); R v Baugh [1999] NSWCCA 131; R v Tony Giam (No 2) [1999] NSWCCA 378 at [28]; R v Jurisic (1998) 45 NSWLR 209 at 232 42 The offence to which the Respondent pleaded guilty rendered him liable to imprisonment for life. Given that that penalty applies to all quantities above 500 grams it must include quantities measured in the hundreds, or theoretically thousands of kilograms. Thus the definition of the offence provides scant assistance in determining where on the scale of seriousness the instant offence lies. And the assistance is only marginally better if one compares the quantity with which the Respondent was involved with the largest quantity the subject of a prosecution of which I am aware - the 66 kilograms in R v W. On the other hand the offence committed where the quantity is trafficable does provide a guide. For Parliament has indicated that in a worst case - see Veen v R (No 2) (1987-1988) 164 CLR 465 at 478 - involving less than 500 grams, 16½ years (after the s16G discount) imprisonment is appropriate. Consideration of the statutory provisions relating to both offences, i.e. those involving trafficable and commercial quantities, indicates that once the 500 grams limit is exceeded to a significant extent, the appropriate penalty in a case which in respects other than quantity falls within the description of a worst case should exceed the maximum penalty prescribed for trafficable quantities -16½ or 17 years. That it is appropriate to consider offences involving commercial quantities against the benchmarks laid down for trafficable quantities was the view of the Victorian Court of Criminal Appeal in Perrier and Richardson (1990) 59 A Crim R 164 at 168-9 and 174.

60 Lest it be thought I have overlooked them, I make it plain that I do not ignore a number of matters which her Honour seemed inclined to regard as favourable subjective matters. Included in these were what her Honour referred to as the Respondent's upheaval from Thailand when he was 8 - at the time of sentence he was 24 - and for a time a strong work ethic and, as appears from a passage I have quoted, some honesty. I have also had regard to the list of matters to which s16A of the Crimes Act refers. 61 I should refer to the fact that the Respondent was charged only with an attempt to possess. Although I accept the proposition that an attempt to commit an offence may be of lesser seriousness than a completed offence - see Taouk (1992) 65 A Crim R 387 at 390 to which Carruthers AJ referred - much turns on the nature of the offence. Thus while a successful supply of illegal drugs into the community is more serious than an attempt at that supply, I do not regard the latter offence as significantly differing in seriousness from an actual supply to a police officer where the result is the forfeiture or destruction of the drugs. Similarly I would not regard many attempts at possession as different in seriousness from possession itself in circumstances where the authorities intervene and seize the drugs. More particularly for present purposes, I see no significant difference in criminality between the attempt to obtain possession in this case and the importation of the same drugs by a courier apprehended at the airport. 62 It must not be forgotten that Parliament has provided that the penalty for an attempt is the same as that for a completed offence. Any general proposition that an attempt is necessarily less serious than a completed offence is inconsistent with the tenor of the legislation. 63 In my view the head sentence to be imposed on the Respondent is one of 7 years. I have indicated that because the quantity involved in the Respondent's offence was 4 times the top of the trafficable range, if the case was one which in other respects fell within the description of a worst case, the appropriate penalty would be one which, after the s16G discount, well exceeded 16½ or 17 years imprisonment. His lesser role leads me to the view that, after the s16G discount but before any discount for assistance or for his plea the appropriate sentence would be one of the order of 11 years. 64 Particularly when regard is had to the matters referred to below, such a stance is supported by the decision in Carey where the subjective circumstances of the offender were far more favourable than those of the Respondent, and when the difference in quantity is taken into account, the decisions in Bowers, Tan [2001] NSWCCA 219 and, notwithstanding the difference in plea, Amran Efendi. Again when account is taken of the difference in quantity it seems to me to accord with the remarks of the Chief Justice in R v Behar that, as a starting point, 10 years after the s16G discount (but implicitly before account was taken of a plea) was at the lower end of the range for a courier of 1231 grams. The starting point is more than supported by the decisions on trafficable quantities. 65 Had it stood alone, the Respondent's somewhat lesser role than that of most couriers might have justified some downward adjustment of the 11 year figure but the fact of being on parole at the time and that his conduct was manifesting a continuing attitude of disobedience of the law more than offset any notional credit on this or any other account. Indeed, but for the fact that I am approaching the matter in light of the double jeopardy to which the Respondent has been subjected, I would have adopted a higher figure. Nothing less than the terms to which I have referred are appropriate to reflect the requirements of s16A of the Crimes Act, viz. "the need to ensure that the person is adequately punished for the offence" and that the Court "impose a sentence that is of a severity appropriate in all the circumstances of the offence" and the requirement of general deterrence for the serious assault on society which the Respondent's offending constituted. 66 I would fix the non-parole period at 4½ years. The commencing date of both periods should be the date of the Respondent's arrest, 20 September 2001. 67 It is apparent in what I have said above that I have so far taken no account of the repeal of s 16G of the Crimes Act (Cth) by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act, 2002. Indeed the above was written before that repeal occurred. By virtue of s 4 of that last mentioned Act the repeal applies to any sentence imposed on or after the Act's commencement, whether or not the offence was committed before its commencement. 68 The Respondent's offence was committed on 20 September 2001. He was sentenced by Judge Murrell SC on 28 June 2002. The appeal by the Crown was heard in this Court on 22 November 2002. The non-parole period fixed by Judge Murrell is due to expire on 19 March 2003 and the full term of the Respondent's sentence on 19 January 2004. Quite apart from the repeal of s 16G, I am proposing a very substantial increase in his sentence. 69 Because of the element of double jeopardy in Crown appeals, this Court has a discretion even where a sentence under appeal is manifestly inadequate, to dismiss the appeal or to impose a sentence which is lower than otherwise appropriate. In the particular circumstances of this case, I would exercise that discretion so as to, in effect, give the Respondent the benefit of s 16G. 70 In summary, the appeal by the Crown should be allowed, the sentence imposed by Judge Murrell quashed, and the Respondent re-sentenced to imprisonment for a term of seven years such term to include a non-parole period of four and a half years with both terms commencing on 20 September 2001.

In Amran Efendi v R [2001] NSWCCA 391 the applicant for leave to appeal had been convicted of one count of importing about 0.8 kg of ecstasy and one of 10.7 grams of methylamphetamine. On the first count a sentence of 10 years imprisonment with a non-parole period of 6 years was imposed. On the second count a fixed term of 5 years was imposed. He 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.

In R v Benais [1999] NSWCCA 236 the offender, who pleaded guilty, was sentenced to imprisonment for 6 years with a non-parole period of 3 years for importing 1,560 tablets containing 61 grams. He had been apprehended at the airport and was regarded as a courier. Although he was to receive $7,000 for his efforts, his involvement was attributed to need not greed. He was of previously good character, had no prior convictions and was contrite. The sentencing judge took as his starting point 9 years and then applied the s16G discount. This Court took the view that neither the starting point nor the sentence was excessive and that the courts must support governments in their efforts to control the importation of drugs.

In R v Bigic [2000] NSWCCA 9 this Court refused to reduce a sentence of 9 years with a non-parole period of 6 years on an offender who was knowingly concerned in the importation of 15,800 tablets weighing 2.255 kgs and consisting in part of methylamphetamine and in part of methorphan which, according to the evidence, was commonly sold as ecstasy. Both substances were treated as mid-range drugs. The offender was regarded as a "mid-level participant". He pleaded guilty on the morning of his trial and seems not to have been regarded as contrite. A parity argument based on sentences, before discount for assistance, of 6 years with a 4 years non-parole period imposed on the couriers of the drug was rejected.

In R v Blakeman [1999] NSWCCA 415, this Court dismissed an appeal against a sentence of 3½ years with a non-parole period of 2 years and 3 months on an offender who was convicted of a charge of conspiracy to import 296 tablets including 25.4 grams of ecstasy. The applicant had arranged that, while overseas, he would post articles containing the drug to post office boxes taken out in false names. He was 41, had an impressive work record and character references and was regarded as having no relevant criminal record. There was substantial delay - some 3 ½ years - not the fault of the applicant, in bringing him to trial. The Court said that the sentence was well within the appropriate range.

In Camus [1999] NSWCCA 425 this Court allowed a Crown appeal from a sentence of 8 years with a non-parole period of 5 years and imposed a sentence of 10 years with a non-parole period of 6 years on an offender who pleaded guilty to being in possession of a prohibited import, viz. 736.5 grams of ecstasy. Sully J, with the concurrence of Wood CJ at CL and Simpson J, said that the sentence was distinctly lower than what he considered the proper sentence at first instance should have been. The offender's role included finding customers, sampling some of the product to see if it was saleable, arranging the return of some that was not and, in the sentencing judge's words "one of importance in the distribution". The offender was to receive $40,000 for his role and was found to be motivated by greed. The sentencing judge regarded the offender as genuine in expressions of contrition and remorse but was not able to come to any conclusions as to prospects of rehabilitation. This Court regarded the plea as opportunistic and entitling the offender to only a modest reduction on that account.

In R v Capper [2000] NSWCCA 63 this Court refused leave to appeal against a sentence of imprisonment of 5 years including a non-parole period of 3 years imposed on an offender who pleaded guilty to being knowingly concerned in the importation of 167.1 grams of ecstasy. The report contains no details of the offence, it being said that there was "nothing remarkable" about it. The only ground of appeal was based on hardship to the offender's 10 and 12 years old children of whom, in practical terms he was the sole parent.

In R v Durant [2002] NSWCCA 295 this Court dismissed an appeal against sentences of 7 years including a non-parole period of 4 years and 3 months and 18 months to be served concurrently imposed in respect of charges of being knowingly concerned in the importation of firstly, ecstasy and secondly 10.9 grams of cannabis resin. There were 2,213 tablets containing 166 grams of ecstasy. The street value of both drugs was between $45,000 and $100,000. The offender had brought the tablets into Australia on, or in, his body. The sentencing judge rejected the view that the applicant was a courier and concluded he was responsible for the importation in a serious and significant way and more than half-way up the scale of culpability. There was evidence before this Court that the offender was paid 10,000 pounds for his involvement. 10% discount had been allowed for the offender's plea. The Court concluded from a schedule of some 32 cases (not identified in the report) that the sentence imposed was well within the range.

In R v Guinan [2001] NSWCCA 55 the appellant had been convicted of one count under the Financial Transactions Reports Act, 1988 (Cth), one count of being knowingly concerned in the importation of 2500 tablets containing about 205 grams of ecstasy and a further count being knowingly concerned in the importation of another similar number and quantity of ecstasy. The sentences imposed on these counts were, respectively, a fixed term of imprisonment of 12 months, a fixed term of imprisonment of 4 years, and imprisonment for 9 years with a non-parole period of 6 years. The report does not reveal why, for apparently similar offences, the sentences for the second and third were so different. The sentences were concurrent. The 5000 tablets had a wholesale value of between $75,000 and $125,000 and a retail value of $500,000. This Court found error in the trial judge's characterisation of the appellant as "the principal entrepreneur in Australia" but said that there was no reason to think that his role was a minor one, e.g. that of a mere courier. It declined to interfere with the sentences.

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, consisting of 10,000 tablets. Reference to the Court file shows that the pure weight of ecstasy was about 1.102 kilograms. The reduction in sentence was because of error in the sentencing process. 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. The Court was influenced by considerations of parity with the importer and the offender's husband. The offender was 44 and there were some favourable subjective circumstances.

In R v Lim and Yeung [2002] NSWCCA 293 both offenders were convicted of having had in their possession prohibited imports being not less than the commercial quantity of ecstasy. (Co-offenders Cong Tam Dang and Chiap Nam Tan - see below - had pleaded guilty.) The ecstasy was contained in about 46,000 tablets with a street value of $60 each. Reference to the Court file indicates that the quantity of ecstasy was about 6.15 kg. Each was sentenced to imprisonment for a period of 9 years with a non-parole period of 5 years and 4 months. When arrested each offender had $40,000 strapped to his body and an airline ticket to Malaysia. Both seem to have some active involvement with a suitcase that contained the drugs but otherwise there is relatively little detail in the report as to the particular role each offender played.

In R v Meloh [2001] NSWCCA 211 the applicant had pleaded guilty to an offence of being knowingly concerned in the importation of a trafficable quantity, viz 471.5 grams contained in some 5,300 tablets. Pursuant to an arrangement in which he had participated, he was the recipient of a package which, but for the intervention of the authorities, would have contained the drug. He was regarded as "a low level operative in the hierarchically organised structure of the operation" but "not just a courier and someone who "did organise the actual importation". The applicant was a refugee and susceptible to pressure and had participated in order to obtain a passport to enable his sister to leave Somalia. He was accepted to be contrite. The sentencing judge had imposed a sentence of 6 years imprisonment including a non-parole period of 4½ years. The appeal was against the non-parole period and this Court reduced it to 3 years and 7 months.

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 of ecstasy, viz. 1.1953 kg contained in some 9,800 tablets worth approximately $690,550. The offender was apprehended at the airport but he 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.

In R v Pejovski [2001] NSWCCA 182 the offender had been convicted of attempting to obtain possession of a trafficable quantity of ecstasy, viz 214.4 grams sent by post from Belgium. Having received the parcel he passed it on to other persons. He was sentenced to imprisonment for 6 years with a non-parole period of 4 years. He had no relevant criminal history and other favourable subjective circumstances. Because the sentencing judge had not made adequate differentiation on that account between the offender and a co-offender, this Court reduced the non-parole period by 6 months.

In R v Power [1999] NSWCCA 25 this Court dismissed an appeal against a sentence of 9 years with a non-parole period of 5½ years on an offender who pleaded guilty to being in possession of a prohibited import, viz a commercial quantity (1.056.5 kg) of ecstasy. The drug was contained in approximately 16,000 tablets with an estimated street value of $1.12M. The applicant had picked the drugs up from a courier who had participated in a controlled delivery and was regarded as "involved at a higher level that that of a courier and … in the position of a middleman in the enterprise". He was not regarded as having shown remorse. Otherwise his subjective circumstances seem unremarkable. Dunford J with the assent of the other members of the Court said that the sentence was well within the range of a proper exercise of the sentencing discretion.

In R v Robertson [2000] NSWCCA 266 a Crown appeal against a sentence of 3 years periodic detention, suspended after one year, imposed on an offender who committed the offence of being knowingly concerned in the importation of ecstasy was dismissed. The respondent had pleaded guilty at committal. Although the report does not say so, reference to the Court file shows that the quantity involved was 167.1 grams. In return for $1,000 he acted as a post box and was arrested after picking up the drugs and on his way to deliver them. He then participated in a controlled delivery and made a witness statement. The respondent had been under the influence of marijuana at the time he was recruited and was also influenced to participate because of an urgent need for rent-money for himself and his sick fiancée. At the time of sentence the respondent had given up marijuana and was regarded as having made progress towards rehabilitation. Viney DCJ had regarded the case as exceptional and Grove J, with the assent of the other members of the Court, said that the sentence imposed was well within the boundaries of his discretion.

In R v Rocco [2001] NSWCCA 124 the appellant had been convicted of being knowingly concerned in the importation of a commercial quantity of ecstasy. The quantity was 4.027 kg, contained in some 70,000 tablets. This Court dismissed an appeal against a sentence of 13 years imprisonment including a non-parole period of 9 years. The appellant had been, or assisting, the consignee of some water pumps which contained the drugs and which had been sent to Australia and received by the appellant. The sentence appeal seems to have been on parity only and the report says little about the offender's subjective circumstances.

In R v Schleunz [2001] NSWCCA 314 this Court dismissed an appeal against a sentence of 7 years with a non-parole period of 4 years on an offender to whom a parcel containing 83.2 grams of ecstasy were addressed and who had been convicted of attempting to obtain possession of the drug. Shortly after her receipt of the parcel, she departed her premises with the parcel. She was regarded as "more than a courier but something less than being the person ultimately responsible for the dissemination of the drug to the community". She had no prior convictions and was 41 at the time of the offence.

In R v Schmakowski [2001] NSWCCA 395 this Court refused to reduce a sentence of 8 years imprisonment with a non-parole period of 4 years and 9 months on a offender who pleaded guilty to importing 410 grams of ecstasy with a wholesale value of the order of $240,000. The offender was detected at the airport and then participated in an attempted controlled delivery. The sentencing judge felt unable to conclude that the offender was only a courier and dealt with him simply on the basis that he had imported the drug. His motivation was greed. He was aged 43 with no prior convictions. There was an unspecified discount for assistance which turned out to be of no great value.

In R v Slatinec [1999] NSWCCA 2 the offender had pleaded guilty (on the first day of trial) to one count of being knowingly concerned in the importation of a commercial quantity (1214 grams) of ecstasy and a second count, under the Drugs (Misuse and Trafficking) Act, of supplying part of that ecstasy in an amount not less than a large commercial quantity. The sentencing judge took that view that, but for assistance which the offender provided, on the first count a sentence of 13 years with a non-parole period of 9 years would have been appropriate. Taking account of that assistance, the sentences imposed were, respectively, 9 years imprisonment with a non-parole period of 6 years and a fixed term of 4½ years. This Court saw no error in his Honour's approach except that a somewhat greater discount should have been allowed for assistance. The 9 and 6 year terms were each reduced by one year on that account.

In R v Spillane [1999] NSWCCA 280 the offender pleaded guilty to a charge of importing a trafficable quantity, viz. 447.3 grams of ecstasy and was sentenced to imprisonment for 7 years with a non-parole period of 4 years and 8 months. The offender was dealt with as a courier, was a chronic alcoholic and well affected by alcohol at the time of his apprehension at the airport. He participated in an unsuccessful attempt to effect a controlled delivery and was allowed a discount of in excess of 3 months for assistance. He had a record for offences of dishonesty but not for drug offences. Taking the view that there was error in the sentencing process, and that "in all the circumstances" the sentence was excessive, this Court reduced the sentence to one of imprisonment for 6 years with a non-parole period of 3½ years. In arriving at that figure an unspecified discount greater than the 3 months adopted at first instance was allowed.

In R v Chiap Nam Tan [2001] NSWCCA 438 the applicant had pleaded guilty to possession of not less than a commercial quantity of ecstasy reasonably suspected of being imported. This Court dismissed an appeal from a sentence of 15 years with a non-parole period of 9 years saying that it was not manifestly excessive. Nevertheless all members of the Court regarded the head sentence as the top of the range. At least Ireland AJ may have regarded the non-parole period as also answering that description. The applicant was regarded as having pleaded guilty at the earliest opportunity. The quantity of ecstasy was approximately 6.15 kg, contained in some 46,229 tablets with an estimated street value of about $2.5M. The applicant was described as "not a principal … but … a middle man … to arrange or organise the distribution of the Ecstasy tablets in Australia in conjunction with Mr Dang". The applicant was aged 46 and had come to Australia some months prior to his arrest for the purposes of committing offences. His sole motive was financial gain, possibly $50,000. The sentence reflected a discount of 20% for the Applicant's plea. "There was no demonstrated contrition on the part of the applicant other than the plea of guilty."

In R v Tyler [2002] NSWCCA 272 the applicant had been sentenced to imprisonment for a period of 7½ years with a non-parole period of 4½ years for importing a commercial quantity of ecstasy. The amount imported was 947.6 grams contained in 13,917 tablets with an estimated street value of between about $696,000 and $974,000. She was detected at the airport and was regarded as more than a courier and having participated for money. She was aged almost 30, had a minor criminal record, pleaded guilty at the earliest possible time, and was regarded by the sentencing judge as genuinely sorry for and deeply ashamed of her behaviour, and as unlikely to offend again, but having a substance abuse problem which she was unwilling or unable to acknowledge. She gave minimal assistance to the authorities. An offence of making a false statement in relation to a passport was taken into account. Finding error in that the sentencing judge has not adverted to the applicant's prospects of rehabilitation and a deal of evidence in that regard, this Court allowed the appeal and imposed a sentence of 6 years imprisonment, including a non-parole period of 3¼ years, her parole to be subject to a condition as to participation in a drug rehabilitation program.

In R v Van Den Akker [1999] NSWCCA 426 this Court dismissed an appeal against a sentence of imprisonment for 7½ years, including a non-parole period of 4½ years on an offender who had pleaded guilty to 2 charges of attempting, at the same time, to export ecstasy. One charge related to 324.8 grams and the second to 18.8 grams. She had been apprehended at the airport after conversations with one Camus - see R v Camus (supra) - had been overheard. She was regarded as more than a courier and her offences part of an international criminal enterprise. Her subjective circumstances, though not detailed in the report, were said to be matters of substance and entitled to real weight.

In R v W [2002] NSWCCA 192 the offender was sentenced to imprisonment for a period of 7 years with a non-parole period of 5 years and 3 months for being knowingly concerned in the importation of not less than a trafficable quantity of methylamphetamine. The applicant's conduct had been to cut into the metal struts of shipping containers, remove what he believed to be drugs concealed therein, re-weld the containers, and deliver the drugs to locations in Sydney. His participation was described as extensive, both in terms of duration and day to day involvement. However, prior to the applicant embarking on the cutting activities, police had become aware of the importation and removed most of the 66.332 kg (pure) of methylamphetamine which had been in the containers. The applicant was 42, a citizen of Hong Kong and spoke no English. Although he had no prior convictions, he could not put himself forward as of good character.

[2002] NSWCCA 2001

(1997) 137 FLR 314

(2000) 202 CLR 321

(1976) 8 ALR 349

(1989) 168 CLR 227

(1990) 170 CLR 623

(1997) 149 ALR 488

(1990) 21 NSWLR 370

(1991) 23 NSWLR 220

(1985) 2 NSWLR 195

(1998) 45 NSWLR 209

(1990) 20 NSWLR 114

(1999) 199 CLR 270

(2001) 53 NSWLR 704

(1999) 48 NSWLR 340

(1988) 164 CLR 465

(2001) 207 CLR 584

(1991) 21 NSWLR 370

(1998) 1 VR 637

[1999] NSWCCA 1

[2002] NSWCCA 381

[2002] NSWCCA 314

[1999] NSWCCA 378

[2002] NSWCCA 343

[2002] NSWCCA 299

[2002] NSWCCA 40

[2001] NSWCCA 353