9 Turning first to the ground of appeal asserting particular error on the part of the sentencing Judge, the ground is propounded in these terms:
"His Honour erred in refusing to accept that the role of the applicant in the importation of the prohibited drug was that of a courier"
10 What in fact his Honour did in that connection was to take the view that the evidence before him was really imprecise as to the precise role of the applicant. His Honour said:
"There is no evidence before me upon which I can properly categorise his involvement. All I know is that he was caught red-handed bringing drugs into Australia. It is entirely possible that he was carrying them at the behest of somebody else, it is equally possible that he was to deal with the drugs himself through agents, or in some other manner. I simply do not know. The prisoner was in a position to establish his role in the importation but he has chosen not to do so, and I am simply not going to accept as a fact that he was a courier, nor of course will I assume to him some other role. The simple position is that he was a drug importer."
11 A great deal of argument has been addressed to the Court, focusing upon the submission that there had been, in effect, a concession made by the Crown at the sentencing proceedings that the applicant should be dealt with upon the basis, only, that he was a courier. The available evidence going to that proposition is to be found on page 4 of a lengthy and detailed written submission put to the learned sentencing Judge by the then Crown representative. Under the heading "Principles on Sentencing" the written submission was this:
"There is no evidence in this case to suggest that the offender was anything other than a courier."
12 The submission then goes on, by reference to the well-known decisions in R v Laurentiu and R v Olbrich, to argue for the proposition that, as the submission puts the point, "The value of all players in the importation/distribution chain was relevant such as to require careful and particular consideration".
13 I am not myself persuaded that the entirety of that material establishes that there was in a precise sense a clear concession that the applicant should be dealt with only as a courier. But I am content for present purposes to test the soundness of the present application by assuming for the purposes of argument that it is correct to say that the applicant should have been treated, and clearly stated to have been treated, as a courier and nothing more.
14 In that event, he would have stood for sentence in a way conditioned by the guidance given by the Court of Criminal Appeal, specially constituted by five Judges in the guideline decision of R v Wong; R v Leung (1999) 48 NSWLR 340.
15 Put simply and relevantly, that guideline judgment establishes that a courier of a quantity of cocaine in the range 1 kilogram to 2 kilograms can expect, normally, a sentence in the range of seven to ten years. The head sentence fixed in the present case of eight and a half years is, in practical terms, the midway point between those two guideline points.
16 So far as concerns a non-parole period, the accepted approach in the case of the Commonwealth offence is to set a non-parole period at a point that is about 60 per cent to 66 per cent of the head sentence. The non-parole period fixed in the present case of five and a half years is, broadly speaking at any rate, at about the midway point between 60 per cent and 66 per cent.
17 That leads me to the conclusion that, even if I were to be persuaded that there was manifest error in the way in which the learned Judge dealt with the applicant in terms of the applicant's status in the relevant importation, I would then be wholly unpersuaded that a sentence more leniently framed was "warranted in law" in the sense contemplated by s 6 of the Criminal Appeal Act.
18 The remaining grounds of appeal go, as I have said, not so much to the question of particular identifiable error in the sentencing process, as to the proposition that the entire process miscarried in a way that denied to the applicant fundamental entitlements in terms of his sentencing.
19 Two of those grounds can be dealt with conveniently together. The first of them is expressed in these terms:
"The applicant was denied natural justice and/or procedural fairness in that the applicant was not clearly warned by his Honour of the view his Honour intended to take as expressed at the bottom of page 5 and the top of page 6 of the sentencing remarks."
20 The second and related ground is expressed in this way:
"In the further alternative to ground 1, the applicant was denied natural justice and/or procedural fairness in that his Honour failed to ensure that the applicant understood any warning given by his Honour inter alia that his Honour was unable to accept the applicant's role as that of a courier."
21 The first thing to be said about those grounds is that the evidence before the Court suggests, - (see paragraph 5 of the affidavit of Elizabeth Hayes of 29 November 2002), - that during the course of discussion between his Honour and counsel then appearing for the present applicant, his Honour clearly indicated that there was, as his Honour then saw matters, no evidence to indicate precisely what the role had been of the applicant in the importation; and in particular, that there was no evidence that he was a mere courier: indeed, that there was no evidence in any precise sense of quite what role he had been playing in connection with the importation.