R v SPEECHLEY [2002] NSWCCA 300 | Case summary

MASON P HULME J HIDDEN J Friday, 26 July 2002 R v Warren SPEECHLEY Judgment 1 MASON P: I agree with Hulme J. 2 HULME J: On 24 July last the Respondent to this Crown appeal was sentenced by Judge Finnane QC in respect of a charge under Section 233B(1)(ca) of the Customs Act, 1901 of being in possession of a prohibited import, viz. a trafficable quantity of cocaine. He had pleaded guilty at the earliest opportunity. The weight of pure cocaine was 208.9gms. Although his Honour did not refer to the fact, there was uncontested evidence before him that the estimated street value of cocaine was $200 per gram. Taken into account was an offence under Section 82(1) of the Proceeds of Crime Act, 1987 (Cth) of possession of a sum of $19,900, reasonably suspected of being the proceeds of a crime. 3 A trafficable quantity of cocaine covers the range of in excess of 2, to 2,000 grams. Pursuant to s235 of the Act, the maximum penalty prescribed for the Respondent's offence is imprisonment for 25 years and/or a fine of $100,000 although because of the sentencing regime in New South Wales and Section 16G of the Crimes Act (Cth) the effective maximum period of imprisonment is about 16½ to 17 years - see the cases cited in R v Spiteri [1999] NSWCCA 3 at [13]. Had the quantity been less than 2 grams the maximum penalty would have been imprisonment for 2 years (similarly adjusted) and a fine of $2,000. 4 The sentence imposed on the Respondent was one of imprisonment for a period of 4 years and 6 months, including a non-parole period of 2 years, both such periods commencing on the date of the Respondent's arrest, namely 1 November 2000. 5 It appears that the Respondent came to the notice of the authorities as a participant in telephone conversations with another person whose calls were being monitored. On 1 November 2000 police attended the Respondent's premises and executed a search warrant. They found in a garden shed, a sock containing the sum of $19,900 cash and in his bedroom cupboard, 19 clip seal bags and 2 other bags containing cocaine. The Respondent was present during the search and both then and during a formal ERISP later acknowledged that what was found in the bags was cocaine and that the money was the product of drug related activities. His Honour recorded that the Respondent had "admitted that he had been involved in minding and selling cocaine for a period between 14 months and 2 years. He had got into the business of cocaine dealing through a friend of his whom he had known for 28 years. He approached the friend. He sought to become involved. He sought to become involved because he was unemployed and he needed money." The Respondent acknowledged that he had taken "the shortcut to making money and he had done wrong." His Honour assessed the Respondent's role as somewhere below that of a principal and above that of a mere courier. 6 Some of the Respondent's answers to the police - not all answers were consistent - indicated that his activities had included making up the drugs into 1 ounce bags. 7 Turning to the Respondent's subjective circumstances, he was born in July 1956 and was of prior good character, having no prior convictions. Although he did not give evidence on sentence, he provided a letter to the Judge in which he expressed his regrets for involvement in the offence and he informed a Probation and Parole Service duty officer that through participation in a drug and alcohol course since his arrest, he had gained some insight into drug matters. He also seems to have become a member of an Inmate Reception Committee and in that capacity explained jail life to new inmates as well as advocating the cause of some to jail authorities. His Honour regarded these activities as doing the Respondent considerable credit. In this connection His Honour also observed, "I have taken into account the contrition he has shown in that he is now doing things for other people which indicate that he acknowledges his part in this crime". 8 It seems clear that His Honour was made aware of the guideline judgment of this Court in R v Wong and Leung (1999) 48 NSWLR 340. In arriving at the sentence imposed, His Honour indicated he thought it appropriate to take the bottom of the guideline for offences involving quantities of 200gms to 1kg, viz. 6 years and, because of the Respondent's admissions and plea, the top of the range of discounts envisaged in the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 as generally to be used, namely 25%. When His Honour came to address the question of the appropriate non-parole period, he recognised that, in light of the head sentence of 4½ years at which he had arrived, normally the non-parole period would be 3 years. However, His Honour expressed the view that there were special circumstances in that the Respondent was genuinely contrite and not himself an addict and that when the Respondent left jail he would not re-offend. 9 In support of the appeal, the Crown submitted:- 1. That the sentence was manifestly inadequate. 2. That, in imposing the head sentence, His Honour:- (i) Failed to have proper regard to the decision of this Court in R v Wong & Leung , (ii) Placed undue weight on the Respondent's prior good character, (iii) Incorrectly categorised the Respondent's stated reason for committing the offences as a mitigating factor rather than a circumstance of aggravation, and (iv) Failed to have proper regard to the offence under the Proceeds of Crimes Act. 3. That His Honour erred in imposing a non-parole period which was only about 44% of the head sentence. 10 The appeal was heard on 8 November 2001 and the Court's decision reserved. On 15 November 2001, the High Court delivered its judgment in Wong & Leung v R [2001]HCA 64; (2001) 76 ALJR 79. On 14 February 2002 the High Court delivered its judgment in Cameron v R [2002] HCA 6; (2002) ALJR 382. In light of these decisions the Court invited the parties to submit further submissions and they did so. 11 Given the High Court's overruling of the decision of this Court in R v Wong and Leung, ground 2(i) above clearly cannot succeed. Indeed, in light of that overruling his Honour's regard to the decision of this Court amounted to error. However no such point was taken in the appeal and, given the discretion which exists in Crown appeals, I would hesitate before I would use the decision of the High Court and its consequences adversely to the Respondent. Of course, in any judgment as to the merits of the appeal here, the Respondent is entitled to such benefits as flow from the High Court decision. For similar reasons, I would adopt the same approach in relation to any impact the decisions of Cameron v R and Wong & Leung v R may have on this Court's earlier decision in R v Thomson and Houlton. Because the Respondent's offences were ones arising under Commonwealth legislation, this Court's decision in R v Sharma [2002] NSWCCA 142 has no application. 12 Because of the way in which his Honour approached the task before him, it will be necessary for me to refer from time to time to this Court's decision in R v Wong and Leung but I wish to make it clear that none of those references indicate any departure from the approach indicated in the immediately preceding paragraph. 13 Error on the part of the learned sentencing Judge in a number of respects has been established. 14 One lies in his Honour's failure to give weight to the nature and extent of the Respondent's involvement. Although there was a finding that the Respondent was not a principal, and no finding that he was a person high in the hierarchy, it is clear from the evidence which was given that his involvement was appreciably greater than that of persons described in the authorities as couriers. He did not merely have custody simply during the course of a movement from point A to point B but, at the very least, was engaged in minding or keeping the cocaine, delivering or making it available for delivery from time to time and in such quantities as might be requested and in dividing the cocaine into 1 ounce packages. Although the Respondent's admissions in this regard extended beyond the cocaine the subject of the possession charge, the clear inference is that that was the nature of his role in respect of that cocaine also. 15 Despite his Honour's finding as to the Respondent's role in relation to the drug the subject of the charge, when the time came to determine upon a sentence his Honour said:- "I consider that I should give him, having regard to his previous good character the lowest end of the period which the High Court affix as appropriate so a head sentence of six years." (sic) 16 The reference to the "High" Court is clearly a mistake and the balance of the passage makes it clear that his Honour had in mind this Court's guideline in R v Wong and Leung for couriers involved with quantities of between 200 grams and 1 kilogram. However that decision made it clear that the guideline of 6 to 9 years was "intended to apply to couriers and persons low in the hierarchy of the importing organisation" and was "not intended to apply to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation, to whom an increment should be applied." 17 It was also intended to reflect most pleas of guilty. The vast majority of the cases taken into account in determining what the guideline should be included such pleas, and the statement "There may also be circumstances in which a plea of guilty is entitled to such significant weight as to justify a sentence below the range" - R v Wong and Leung at 365 - carries the clear implication that other pleas of guilty are reflected in the range. I acknowledge there are statements to the contrary - Ngui & Tong (2000) 111 A Crim R 593 at [17], R v Karacic [2001} NSWCCA 12 at [50-52]. See also R v Chua [2001] NSWCCA 50 at [20]. A reference to the matter in R v Thompson at 419 is unclear. There it was said:- The standard case identified in each of R v Jurisic and R v Henry included a plea of guilty. That was not the case in R v Wong in which the range encompassed relevant matters including a plea. 18 With respect to those of a different view, I regard the words quoted from R v Wong and Leung, acquiesced in by 3 other judges, as clear. 19 The distinction between couriers and principals in drug dealing activities is of long standing. And of course there are often persons whose activities fall in between. An offender's role is significant in any judgment as to his criminality. All other things being equal, the more extensive that role, the higher the sentence is likely to be. His Honour's failure to give weight to the fact that the Respondent's role was greater than that of a courier or of someone whose role in dealing with imported drugs is at the lowest level, or explain why he did not, and to sentence the Respondent as if he were a courier, was an error. And that is so, even if the guideline by reference to which the Respondent was sentenced is no longer to be regarded as relevant. 20 A further error appears in that His Honour failed to recognise that the Respondent's reasons for participating in the offence, clearly greed, were a matter of aggravation - see R v Ramos (2000) 112 A Crim R 339. Indeed there is something to be said for the view that His Honour regarded this as a matter of mitigation but whether that be so or not, His Honour seems to have given no weight to the fact that the Respondent deliberately entered upon his illegal activities for the profit they would bring. It is true that his Honour found that the Respondent's original involvement with cocaine was because he was unemployed and needed money. However, the matter charged arose some 14 months to 2 years later and the presence of almost $20,000 in the back shed rebuts any inference that need forced his continuation in criminal activities. 21 His Honour also erred in arriving at the figure of 25% for the discount to be allowed for the utilitarian value of the Appellant's plea. In R v Thomson and Houlton it was laid down that the appropriate discount to be allowed for the utilitarian value of a plea should generally fall within the range of 10 to 25%. It was indicated that where, within that range, the discount in a particular case should fall would be influenced particularly by the stage in proceedings at which the plea was entered and by the extent of the utilitarian value of the plea. The earlier the plea, the more complex the issues, the greater the difficulty of assembling the relevant evidence or the greater the length and complexity of the trial which would otherwise arise, the greater is the value of the plea to the justice system and the greater the discount which should be allowed. 22 A majority of the judges in the High Court said in Cameron v R that while discounts could still be given to the extent to which a plea was and indication of remorse, and acceptance of responsibility, no longer could they be allowed for the utilitarian value of the plea in saving the community the expense of a trial - 76 ALJR at 384-5. However, discounts could also be given for an offender's willingness to facilitate the course of justice. Unsurprisingly, because for many decades judges have almost universally held the rejected view and never heard of the latter basis for a discount, there was in this case no examination of the Respondent's subjective desires to facilitate the course of justice. However, it does seem not inappropriate to infer from his plea that facilitating the course of justice was something he wished to do and I shall proceed on that basis. To do so is not unfavourable to the Respondent. 23 In his remarks on sentence Judge Finnane QC gave a number of reasons for giving the discount he did. At different places in those remarks, His Honour said:- "As he is prepared to admit his involvement from the earliest point and to maintain a plea of guilty from the earliest point I am able to give him a benefit of the largest discount that is appropriate to give, which is a 25 per cent discount. I consider he should have the benefit of a discount on sentence of 25 per cent because he has shown contrition, he has admitted everything about the offence except the name of his friend. I have taken into account his guilt, his early pleas of guilt and I suppose the degree to which he has co-operated with law enforcement agencies in that he admitted his part when first confronted with it by them, saving them and the state, using the word "state" in a very general sense, the extreme expense of conducting a criminal trial. These trials, in my experience, are lengthy and incredibly expensive". 24 Whether the second of these passages indicates a misunderstanding of the decision in R v Thomson and Houlton - see at [137] it is unnecessary to decide. For his Honour's assessment of the benefit of the plea in the instant case, contained in the last 2 lines quoted was wrong. The cocaine the subject of the charge was found in the Respondent's wardrobe. Combined with evidence of his participation in phone calls which fairly obviously related to some illegal substances, the Crown case against the Respondent was capable of easy and short proof. Thus the Respondent's plea was not one meeting the criteria laid down in R v Thomson and Houlton for the discount of 25% his Honour gave. 25 It may be that in light of the High Court's reasoning in Wong and Leung v R, R v Thomson and Houlton to the extent it lays down a guideline is no longer good law. However, that is a issue I need not develop for, as a number of cases referred to in R v Thomson and Houlton show, the principle that a discount for a plea should vary to some extent with the degree of utilitarian benefit resulting therefrom is longstanding. There is nothing in Wong and Leung v R to throw doubt on that principle. And although concerns about discrimination may argue to the contrary, neither is there any statement in Cameron v R to the effect that the reward for willingness to facilitate the course of justice may not vary with the benefits flowing from that willingness or bear some relativity to the sentence which would otherwise be imposed. In the absence of such a statement the Respondent should not, in a Crown appeal where the matter was not argued, be deprived of a benefit which, prior to Cameron v R was well recognised in law. However, by that law his Honour's assessment of the benefit of the Respondent's plea in this case was wrong and thus, whether or not in the case of offences arising under Commonwealth legislation, as the subject offence was, R v Thomson and Houlton has been overruled, the sentencing of the Respondent miscarried. 26 I should perhaps add that there is nothing, apart from the remarks of this Court in R v Thomson and Houlton, which would justify a discount for the Respondent's plea as great as 25%. 27 The non-parole period was also manifestly inadequate. As is made clear in decisions such as Bugmy v R (1990) 169 CLR 525, R v Shrestha (1990-1991) 173 CLR 48 at 62 and 69 and R v Behar (unreported, CCA, 14 October 1998) the "criminality of the offence should be reflected not only in the full term but also in the non-parole period". Against the legislature's clear intent to proscribe and so far as it can, prevent the possession of cocaine in Australia, and the maximum penalty of 16½ years imprisonment, the 2 years non-parole period imposed on the Respondent for his calculated criminality provides a wholly inadequate disincentive to others. As Gleeson CJ said in R v Swann (unreported CCA, 17 July 1992):- "The reason why drug dealing is as profitable as it is, is that it is illegal, and, therefore, risky. It is consequently appropriate that, when a person who is engaged in such activity for profit is apprehended, the risk comes home." 28 Pointing in a similar direction are the remarks of Street CJ in R v Rushby (1977) 1 NSWLR 594:- "There is the powerful emotional attraction of seeking the reformation and rehabilitation of the criminal, but that must not, as has been pointed out in Radich (1954) NZLR 86 at 87 be permitted to obscure, still less to predominate over, the consideration of general deterrence" 29 Whether the reason be error in the weight his Honour gave to what he saw as the Respondent's contrition - it was one factor he took into account in arriving at the head sentence of 4½ years and then gave it substantial weight again in fixing the non-parole period - or to his previous good character or to some other reason does not matter. His Honour should certainly have borne in mind that the weight to be given to a clear record in drug cases is less than in other fields. This is particularly so in the case of couriers - Ferrer-Esis (1991) 55 A Crim R 231 at 238, Budiman (unreported, CCA, 8 September 1998) but the practice also has application to principals - see Chai (1992) 60 A Crim R 305 at 352, and Lara-Gomez (unreported, CCA, 24 April 1996). Of course, I do not suggest that in the case of the Respondent his clean record of 44 years should not entitle him to some leniency compared with those with whom the courts more commonly have to deal. 30 The extent of these errors means that I need not consider separately the question of whether the head sentence was so inadequate as to itself demonstrate error of principle. Subject to the exercise of the usual discretion in Crown appeals, this Court should re-sentence. In deciding whether that discretion should be exercised, attention must be paid to the usual considerations applying in Crown appeals but nothing has been put before the Court to indicate that the Respondent is in a specially favourable position as compared with other respondents on whom sentences, manifestly inadequate in some respects, have been imposed. But arguing in the other direction is what I regard as the imperative need for the courts to ensure that sentences imposed for deliberate and calculated wrong-doing, particularly in the field of drugs which wreak such havoc on both the weaker members of society and, through them, on society generally, are of a nature calculated to deter such conduct. The sentence imposed upon the Respondent is so deficient in this regard that the Court should interfere. It should impose the least sentence which should have been imposed at first instance. 31 By reason of the offence under Section 82 of the Proceeds of Crime Act, the sentence should be higher than it would otherwise be. Given that that offence reflected the profits of in excess of 14 months criminal drug dealing it is difficult to see that the increase should be less than 1 year. Indeed, but for the fact that the maximum penalty prescribed by s82 is but 2 years I should have thought a higher increase was appropriate. 32 Nor do I forget other matters which s16A of the Crimes Act (Cth) requires to be taken into account. Specific mention may be made of the more important - the Respondent's contrition, his plea, his co-operation with law enforcement authorities, the deterrent effect on him that the sentence is likely to have, and his prospects of rehabilitation - both in my view substantial. His age, antecedents and, but for the offences for which he stands to be sentenced, his character stand him in good stead. His prior exemplary record which, as I have indicated, extended over a period of 44 years, clearly justifies some leniency. 33 However there remains the seriousness of the offence - deliberately committed for naked commercial gain, and not as an isolated event but as part of an ongoing operation. The quantity of 208.9 grams was towards the lower end of the trafficable range (but 100 times as great as the 2 grams upper limit of the lower range). Furthermore, the nature of the Respondent's activities provides no basis for concluding he might not have been fully conversant with at least the approximate quantity involved in his offence. 34 No sentence other than one of imprisonment is appropriate and the least sentence which could properly be imposed on the Respondent for the offence of being in possession of a trafficable quantity of cocaine, considered in isolation, is 6 years imprisonment. I make it clear that I have arrived at that figure in the light of my own assessment of the need to deter dealing in cocaine as indicated in the relevant statutory provisions and by reference to a great deal of prior authority, including the cases relied on by the Crown of Doan (ureported, CCA, 27 September 1996), Kogelbauer (1992) 65 A Crim R 357, and Ndubuisi (unreported, CCA, 27 March1992) which was reviewed by me in detail in R v Spiteri (supra) - a review it unnecessary to repeat. By reference to some of that authority indeed, a sentence of 6 years for someone above the role of mere courier is light. However this is a Crown appeal and the Respondent is entitled to full weight for the duration of his prior exemplary record. I have taken into account the fact that his role was above that of courier and, tending in the opposite direction, his early plea, contrition and other subjective circumstances. Given the terms involved, the principle of totality has little part to play in this case but it is also a factor I have taken into account. 35 It may be acknowledged that the period of 6 years does accord with the guideline in R v Wong and Leung, albeit for couriers or others low in the hierarchy rather than for someone in the Respondent's position. Any co-incidence with the guidelines set in that case is not surprising having regard to the fact that those guidelines were determined in the light of much of the same earlier authority considered in R v Spiteri. However I make it clear that my decision has not been made by reference to the guideline. 36 To the figure of 6 years there must be added the additional year to which I have referred for the offence under the Proceeds of Crime Act, making a total of 7 years. I see no reason why the non-parole period should be outside the usual range for offences under the Crimes Act (Cth) of 60-66.6% though the Respondent's contrition and the Judge's assessment of his prospects of rehabilitation argue for the bottom of this range. Considerations of general deterrence show it should not be lower. Accordingly, I would propose that the non-parole period be a (rounded) period of 4 years. 37 In deciding upon the periods of 4 and 6 years I have not been unconscious of the decision of this Court in R v Ceissman [2001] NSWCCA 73 to which the Court was referred. There an offender who had received a parcel containing some 344 grams of cocaine through the post had pleaded guilty to being knowingly concerned in its importation. His receipt of the package was but one incident of a course of conduct which involved the receipt of similar packages, their handing over to persons who collected them and the transmission of proceeds overseas although the Court approached the matter on the basis that the subject offence involved only the receipt and holding of the package. In a successful Crown appeal the offender was re-sentenced to imprisonment for 4½ years including a non-parole period of 2 years and 9 months, this being, in the view of the majority of the Court "the least sentence that could properly have been imposed upon the respondent at first instance". 38 However, in that case it was the subjective circumstances of the offender - which Simpson J in dissent characterised as "exceptional" - which led the majority to depart from the guideline - see paragraph [46]. Those circumstances were far stronger than any here and neither was there a second offence to be taken into account. 39 I should add this. This Court has eschewed on numerous occasions the attempt to show by reference to a comparison with the facts in one or a very limited number of cases the proper sentence to be imposed in a case under challenge - see e.g. Morgan (1993) 70 A Crim R 368 at 371. In part that is what the Respondent in his reference to R v Ceissman sought to do here. Even had that case not been distinguishable, I would not have felt obliged to adopt the result in that case in preference to the results of my earlier review of the authorities. While consistence in sentencing is desirable, so is the exercise of judicial discretion. It would be quite wrong for this Court to allow itself to be placed in a situation where the lowest previous sentence an offender's legal representatives can find should become the benchmark. 40 In supplementary submissions, reliance was also placed on the sentences imposed by this Court on Messrs Wong and Leung and by Justice Blanch, the Chief Judge of the District Court, on a co-offender Law. It was submitted on behalf of the Respondent that a comparison with the sentences imposed on those offenders, involved with a much larger quantity, indicated that the sentence imposed on the Respondent was not excessive. This reliance is again liable to the criticism made at the beginning of the immediately preceding paragraph but the point sought to be made does merit further attention. 41 The 3 persons named were involved in a quantity of heroin which had been imported. The quantity was 9.356 kilograms. The sentences ultimately imposed, the role of the 3 participants and some factors relevant to the sentences, so far as they can be ascertained from the report in R v Wong and Leung (1999) 48 NSWLR 340, were as follows. 42 The trial judge, Davidson DCJ, had assessed Messrs Wong and Leung, who had been convicted after a trial, as in the middle range of persons involved in the process of importation. Without disagreeing with this finding in this Court the Chief Justice described their objective criminality as of a similar order to that of a principal - at [162-3]. This Court increased their sentences from 12 years with non-parole periods of 7 years, both of which periods the Court regarded as manifestly inadequate, to sentences of 14 years with non-parole periods of 9 years which, in the Court's view, were the lowest sentences that should have been imposed at first instance. 43 Mr Law had pleaded guilty after the matter was listed for trial. He was sentenced to imprisonment for 10 years with a non-parole period of 6 years. He had merely picked up the vehicle in which the heroin had been brought from Adelaide and driven it to his house where, Messrs Wong and Leung also being present, the heroin was taken out of the items in which it had been concealed. In the sentencing of Messrs Wong and Leung, Davidson DCJ found that Law was not to be engaged in any ongoing process of ultimate supply and at least inferentially, had a lesser role than Messrs Wong and Leung. 44 The contrast between those sentences - 14 years with a non parole period of 9, and 10 years with a non-parole period of 6 years when the quantity was over 9 kilograms and either that imposed - 4½ years - or proposed - 6 years (increased to reflect the additional offence) where the quantity is 208 grams and the extent of involvement no higher is striking. It is impossible to reconcile the sentences and the contrast provides a strong argument for disallowing the appeal. 45 However, the relative disparity between sentences for small and large quantities has long been a feature of sentencing in this area. It is apparent in the terms of the legislation which provides a maximum period of imprisonment (before any discount under s16G of the Crimes Act) of 2 years for 2 grams and 25 years for nearly 2000 grams. It is reflected in the guideline which was laid down in R v Wong and Leung, viz:- 2 grams-200 grams 5-7 years 200 grams-1 kilogram 6-9 years 1 kilogram-1.5 kilograms 7-10 years 1.5 kilograms-3.5 kilograms (heroin) 8-12 years 2 kilograms-3.5 kilograms (cocaine) 8-12 years 3.5 kilograms-10 kilograms 10-15 years 46 Although the guideline aspect of the case has been overruled, the relative disparity is apparent in the prior decisions which the guideline to a large extent reflected. In R v Spiteri [33] I summarised the pattern of sentences I had observed in prior decisions as follows:- Courier Above Courier 70-700 grams 6 - 8 years 8.5 - 10 years Top half of trafficable range 9 years 10 - 10.5 years One to two times commercial 9¼ - 11½ years 12 - 13 years 47 The top half of the trafficable range covers 1-2 kg of cocaine and ¾ - 1½ kilograms of heroin above which the commercial ranges start. 48 In R v Spiteri I said also [38-39]:- "… The cases to which I have referred seem to me to demonstrate that either the stakes for couriers of small quantities are disproportionately high or those for principals involved with quantities 4 and 5 times as great, disproportionately low. I take the view that actual imprisonment for, say 10 years is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender's life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind. That said, it still seems to me that there is a lack of proportion and that it is impossible to reconcile the sentences imposed on many persons involved with the lower quantities with many sentences imposed on persons involved with higher quantities. Although between many cases there are wide variations in the facts, between others there is no significant difference, or no significant difference other than quantity." 49 To those views I adhere. I acknowledge of course the High Court's criticism of this Court's attention to quantity in the formulation of the guideline and I do not suggest that it is the only or indeed the principal factor to which attention should be given. I did not suggest so in R v Spiteri. However, a detailed examination of the cases such as I then carried out shows that the vast majority of offenders, particularly those above the rank of mere courier, do or must have a fairly good idea of the quantity with which they are dealing, or alternatively do not care. In that latter situation, the harm that the importation with which they are involved is calculated to cause, measured by the legislative criteria of quantities and penalties is not obviously a factor which should have less than substantial weight. 50 The mere fact of unjustified disparity between sentences for small and large quantities of itself says nothing about what change should occur or should have occurred to remove the disparity. While recognising that to which the Respondent has drawn attention, the authorities and other matters to which I referred in and adjacent to paragraph 33 above, persuade me that the Respondent's sentence should be increased as I there indicated. 51 The orders I would propose are:- (i) Appeal allowed. (ii) Quash the sentence imposed by Judge Finnane QC on the Respondent on 24 July 2001. (iii) In lieu thereof, sentence the Respondent to imprisonment for a period of 7 years commencing on 1 November 2000 and expiring on 31 October 2007, such term to include a non-parole period of 4 years commencing on 1 November 2000 and expiring on 31 October 2004 . (iv) Direct the legal advisers who appeared for the Respondent in the appeal to explain to the Respondent as required by s16F of the Crimes Act (Cth) the purpose and consequences of the non-parole period. Record that in this case the principal purpose of such a period is to ensure the Respondent is sufficiently punished and to provide a sufficient deterrent to others. 52 HIDDEN J: I agree with Hulme J.

53 The orders I would propose are:- (i) Appeal allowed. (ii) Quash the sentence imposed by Judge Finnane QC on the Respondent on 24 July 2001. (iii) In lieu thereof, sentence the Respondent to imprisonment for a period of 7 years commencing on 1 November 2000 and expiring on 31 October 2007, such term to include a non-parole period of 4 years commencing on 1 November 2000 and expiring on 31 October 2004 . (iv) Direct the legal advisers who appeared for the Respondent in the appeal to explain to the Respondent as required by s16F of the Crimes Act (Cth) the purpose and consequences of the non-parole period. Record that in this case the principal purpose of such a period is to ensure the Respondent is sufficiently punished and to provide a sufficient deterrent to others.

R v SPEECHLEY

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