REGINA v. GUIU [2002] NSWCCA 181

1 HODGSON, JA: I agree with the orders proposed by Greg James, J. and generally with his reasons. 2 The sentencing judge noted that it would offend against the principle in R v. De Simoni (1981) 147 CLR 383 to have regard to criminality involved in crimes with which the applicant had not been charged, and undertook a very careful evaluation of the culpability of the applicant. Accordingly, when the sentencing judge found that the applicant's "role in this importation" was "of considerably more importance than that of Ferrer", that should not be understood as suggesting that the judge was proceeding on the basis that the applicant could be sentenced for her role in the importation: rather, "importation" there must, in the light of the judge's reference to De Simoni, be understood as referring to the overall enterprise which included both importation and initial disposal within Australia. 3 But even so, it seems to me that there was error in the sentencing judge's analysis. In this case, it was important to have firmly in view that the applicant was not being sentenced in respect of any role whatsoever in the actual importation of drugs, so that any finding as to knowledge or even involvement in the importation could only be used to assess her culpability in relation to the limited involvement with which she was charged, namely her attempt to obtain possession of drugs already brought to Australia. It was appropriate, with a view to avoiding lack of parity, to compare the culpability of the three participants in the overall enterprise; but in my opinion, having regard to the limited involvement with which the applicant was charged, it was an error to conclude that the applicant's culpability (which was in respect of attempting to obtain possession) was greater than that of Ferrer (which was in respect of importing) and roughly equivalent to that of Milet (which was in respect of knowing involvement in importation). It is true that there is the same maximum penalty applicable to each charge; but there is in my opinion a considerable difference in the magnitude of the objective conduct involved in the three offences in this case, that should find some reflection in assessment of culpability. 4 The sentencing judge was entitled to conclude that the applicant was no dupe of Milet, well knew of the importation, and was more closely connected with the organisers of the importation than was Ferrer. When one takes those matters into account, in my opinion a fair assessment of the appellant's criminality (in respect of her offence) would put it as less than that of Milet and roughly equivalent to that of Ferrer (in respect of their respective offences). 5 The starting point for the sentence given to Milet, prior to taking account of his guilty plea, must have been in the order of ten years. The starting point for the sentence given to Ferrer, prior to taking account of her guilty plea and the 50% discount for assistance, must have been in the order of eight years. Nevertheless, despite her assessment of the respective criminality of the three participants, and the lack of a guilty plea by the applicant, the sentencing judge sentenced the applicant to eight years' imprisonment. Presumably, this must have been because of subjective factors favourable to her, referred to by the sentencing judge. 6 In my opinion, the different view I have taken of the relative criminality of the participants justifies the alteration to the sentence proposed by Greg James, J. 7 BARR, J: I agree with Greg James, J. 8 GREG JAMES, J: The applicant seeks leave to appeal against the severity of a sentence imposed upon her by Ainslie Wallace, DCJ. in respect of her conviction after trial in the District Court of New South Wales on one count of attempting to obtain possession of a commercial quantity of the drug ecstasy. That offence is provided for by s.233B(1)(c) of the Customs Act 1901 (Cth). 9 The penalties for offences under s.233B involving narcotic goods are prescribed by the scale set out in s.235 of that Act. The maximum penalty, having regard to the quantity of drug involved, for the offence of which the applicant was convicted, was life imprisonment. A similar penalty is applicable to the offences of importing or being knowingly concerned in the importation of such drugs in similar quantities. 10 The applicant was sentenced to eight years imprisonment with a non-parole period of five years and three months. The head sentence and the non-parole period dated from 20 April 1999, when the applicant went into custody. 11 The applicant's husband, Milet (also known as Cossi) was convicted on his plea of guilty of being knowingly concerned in the importation of the drugs this applicant had attempted to possess and was sentenced by Howie, DCJ. to imprisonment for eight and a half years with a non-parole period of five years. Maria Ferrer had been, on her guilty plea, sentenced by Ainslie-Wallace, DCJ. after having been granted a 50% discount for assistance to imprisonment for three and a half years with a non-parole period of two years on one count of importing the drugs. 12 The learned trial judge set out in her remarks on sentence the factual circumstances giving rise to the applicant's conviction, of which she was satisfied, having regard to the evidence presented at the trial, as follows:- "On 20 April 1999 a suitcase containing 10,000 Ecstasy tablets concealed in a sound mixer was imported into Australia by a Spanish national by the name of Sabate Ferrer, hereafter referred to as Ferrer. The suitcase was inspected at the customs barrier and the drugs detected. At this point Ferrer conceded the importation and agreed to assist the police in effecting controlled delivery of the drugs. To that end, Ferrer was taken to the hotel, which had been nominated to her by those who had arranged for her to bring the drugs to Australia. The drugs were in the main removed from the sound mixer but for a small sample, the mixer reassembled and replaced in the suitcase and taken to the hotel room. While Ferrer was in the hotel room and waiting for the bag to be collected as she had been told would happen, she received a telephone call from a person who identified himself as Cossi and who was to arrange for the bag to be collected. Ferrer was also contacted by the person who had given her the drugs to bring into Australia, a person called Amelio who checked whether everything was in order and asked whether the case had been collected. Eventually the person Cossi rang again and asked Ferrer whether she would bring the suitcase downstairs in the hotel to a bar which was outside the hotel. She said she was not able to do that and in response Cossi said that his wife would come and collect the suitcase from her. Of the telephone calls received by Ferrer from Cossi one was recorded so far as her side of the conversation was concerned, and as to what was said to her she conveyed that to the police who were with her immediately she hung up. A few minutes later the prisoner arrived at the door. There was a conversation between the prisoner and Ferrer prior to the collection of the suitcase. Both sides of that conversation was recorded and translated into English from Spanish. That conversation is not entirely clear as both Ferrer and the prisoner tended to speak over each other during it. Nonetheless in the conversation, a transcript of which was Exhibit N in the proceedings, the prisoner asks Ferrer whether she needs any methadone tablets and says, 'Lito told me to bring it just in case I have brought you some' at p.6 of that transcript. It was said by Ferrer that Amelio, the person who had sent her to Australia, was referred to otherwise as Lito and I am satisfied that the reference at this point is to Lito. At p.8 of the transcript, the prisoner indicates to Ferrer that she will find another hotel for Ferrer because the one in which Ferrer is staying was extremely expensive. Later in the conversation at p.10, the prisoner tells Ferrer, 'we will give you the dough and you can do what you want because you have a ticket for 15 days' in the context of the airline ticket held by Ferrer. At pp.11 and 12, the prisoner says to Ferrer that in a week's time they will give her the dough and she can do then what she wants and until then they will keep paying everything. Finally, at p.14, the prisoner asks Ferrer whether she has enough money and says because normally it is okay to ask for an advance. Piror to the prisoner coming to the hotel room and collecting the suitcase, police observed her to arrive at the hotel and sit at a table at a café which was outside the hotel. Shortly after she arrived she was joined by her husband, Narcisso Milet. I accept that he was otherwise referred to as Cossi. After sitting together for about 10 minutes, he observed to leave and walk away for a short time and then return to the table where the prisoner was sitting. About 10 minutes later she left him and went into the hotel. After collecting the bag the prisoner was observed to come to the street where he husband flagged down a cab and together they walked to the taxi, Milet placed the suitcase in the boot of the cab and they were both arrested. After the prisoner was arrested, the hotel room which she was occupying with Milet was searched and her diary was found which contained the telephone number for the hotel at which Ferrer was staying. The travel documents found on the search indicate that the prisoner and her husband travelled to Australia on 18 April 1999 from Bail. After Ferrer and the prisoner were arrested they were taken to prison together and for a time shared a cell and until December 1999 were together in the same wing in prison. During that time, the prisoner had conversations with Ferrer about the person who was referred to as Lito and accepted as being Amelio who had arranged for Ferrer to bring the drugs into Australia and handed the suitcase to Ferrer in Amsterdam. In those conversations, Ferrer said that the prisoner indicated an acquaintance with Amelio and she had his address and wrote to him from prison at an address in Bali. In a particular conversation in this context, the prisoner said to Ferrer words to the effect that it was lucky that she had turned off her mobile phone because she was expecting a call from the purchasers of the drugs. When Ferrer complained to the prisoner that Amelio had promised her that if she was arrested he would send her money for a lawyer but had not, the prisoner replied that he never had any money and that she had given him money to purchase the Ecstasy in Amsterdam." 13 Her Honour held that the conversation with Ferrer was:- "… significant in my view because it reveals an acquaintance with Amelio and the prisoner having dealings with him prior to Ferrer being sent to Australia. The conversation in the hotel room between the prisoner and Ferrer support the prisoner's knowledge of Amelio and Ferrer's trip to Australia when she said that she was told that Ferrer would need methadone tablets." 14 Her Honour concluded that, but for the contents of the conversations which took place in the hotel room and to which she had referred, there would have been support for a submission that the applicant's role was far less than that of Ferrer, and indeed also for the submission that her involvement was last minute, no doubt because of the conversation between Cossi (the applicant's husband, Milet) and Ferrer in which the applicant's husband said that his wife would collect the suitcase after Ferrer had refused to bring it down the stairs to him. As her Honour expressed this conclusion, it is apparent that she found against the two submissions because of the conversations between the applicant and Ferrer and the degree of knowledge of the importation and the circumstances of the participants of the applicant as revealed in those conversations. 15 Her Honour noted the importance of, where possible, assigning to a participant the position in the hierarchy of an importation so as to sentence with regard to the degree of criminality of a particular prisoner's actions. Her Honour identified the purpose of so doing to enable the identifying of the prisoner's role and thus the objective criminality. She distinguished that undertaking from one which could confuse the criminality charged against the offender with that involved in other crimes with which the offender had not been charged, such as to offend against the principle in Regina v. De Simoni (1981) 147 CLR 383. Her Honour referred to her having in mind the cautions which have been expressed about courts striving to characterise the role of a person in an importation but also referred to a perceived necessity to concentrate on the particular participation of the prisoner in the importation to assess properly the criminality and thus determine the appropriate sentence. Her Honour concluded that the material in the trial allowed an assessment of the objective criminality of the offender's action and the role she had performed. She described that role from time to time in her remarks on sentence as the role "in the importation" or "in an importation" or "in this importation". 16 In particular, she found the following:- "From the conversations with Ferrer in the hotel room and the other evidence I am satisfied beyond reasonable doubt that the prisoner had a role in this importation which was of considerably more importance than that of Ferrer and which went beyond that of merely collecting the suitcase from Ferrer at the request of Milet. She was in a position to offer financial support for Ferrer and was to pay for Ferrer's accommodation and to supply her with money as an advance. I am satisfied beyond reasonable doubt that the prisoner was aware of the importation of the drugs by Ferrer at the time she attended on the hotel room. She clearly had knowledge of the importation as it was expected to occur and had connections with Amelio who sent Ferrer. She was able to arrange finance for Ferrer and knew enough of Ferrer to know that she was using methadone and to have a supply available to her should that be required. Taken with the conversation between the prisoner and Ferrer in the hotel room it can lead, in my view, to no other conclusion but that her role was more than merely to collect the drugs from Ferrer. I cannot find on the evidence what her role was to be once the drug had been collected although from her conversation with Ferrer she was expecting a telephone call from a prospective purchaser but to what end I am unable to find to the requisite standard. That role, as I have found, is however in my view, an important one because it was to facilitate the start of the distribution of drugs in Australia." 17 Her Honour then turned to a consideration of the roles of the others. She noted that the offender Milet had been found by Judge Howie to have been a trusted middle man in the enterprise sent to Australia to take possession of the suitcase of ecstasy, to pass the drugs to the purchasers commencing the distribution chain, to take the money back to Bali and remit it to the person who had asked him to come to Australia. 18 Her Honour noted that Ferrer was sentenced on the basis of her role being that of a courier and of less importance than of Milet. She had offered to and indeed gave evidence against the applicant and her co-operation secured the arrest and plea of guilty of Milet. As a consequence, she had received the 50% discount I have already referred to. 19 When dealing with general deterrence, her Honour said:- "In my view this is a very serious matter and clearly the issue of general deterrence must loom large. Those who come to this country for the purpose of participating in the importation and distribution of drugs must expect to receive a sentence which clearly indicates to their countrymen who might be inclined to do the same that they will be met with salutary punishment." 20 Her Honour noted the Crown submission that the role of the applicant was equal to that of her husband and more than Ferrer. She accepted that the applicant's role "in the importation" was greater than that of Ferrer but said:- "I am not able to describe her role with greater specificity. It was submitted by the Crown that at least her role was one of intermediary in the importation. I accept the submission on behalf of the prisoner that there is no evidence of personal gain for her in her criminal conduct. It was submitted that but for the criminal conduct of Milet and Ferrer, the crime would not have been committed and that the prisoner was merely filling a stopgap role. It may be that it was not anticipated that the prisoner or indeed Milet would collect the suitcase when they went to Ferrer's hotel. However, finding as I have that the prisoner knew sufficient of Ferrer's circumstances to discuss financial support, personal needs and other matters to which I have adverted, she participated in this crime in the full knowledge of what was to take place. She was no mere dupe. Whether she knew these matters from her contact with Amelio or her husband, Milet, is not of consequence for the purposes of sentencing." 21 Her Honour noted that although the prisoner did not give evidence either at the trial or on sentence, she had provided a statement on sentence in which she expressed contrition and contested that she had collected the suitcase with the requisite knowledge. 22 Her Honour referred to a number of subjective circumstances which were in evidence before her, including that the applicant was a woman of 44 years of age; a Spanish national; living as man and wife with Milet at the time of their arrival; had been a self-employed masseuse and French teacher who had been using methadone and heroin at the time of her arrest. (Indeed, she had become unwell during the interview following her arrest for that reason and had been taken to hospital.) She noted the applicant had done a number of educational supportive courses; is highly motivated and co-operative according to the prison authorities; is a woman of intelligence who has used her time in gaol constructively to become free from her drug dependence, notwithstanding her health problems which include having Hepatitis C and being subject to the possibility of operative procedures in consequence of investigation for cancer of the cervix. 23 Her Honour accepted that a sentence which was significant and greater than that of Milet would be disparate and result in a justifiable sense of grievance, but noted that the prisoner was not entitled to the benefit of the plea of guilty that Milet and Ferrer were able to claim. Her Honour had regard to the lack of prior criminal history, the fact that the prisoner had been in custody since 20 April 1999 and that she would be required to serve a sentence outside of her own country in circumstances where her command of the English language was far from perfect. Thus her time in prison would be more difficult for her. 24 Her Honour noted that the prisoner will serve the sentence imposed without the benefit of remissions or reductions in her sentence and she also noted that there was some basis to see some prospect of rehabilitation. Her Honour went on, however, to hold:- "Overall, I am not persuaded there are factors which would cause me significantly to alter the statutory ratio between had sentence and non-parole period." 25 A number of submissions have been made contending that her Honour fell into error. It is convenient to deal firstly with the submission that her Honour failed in her sentence to comply with s.16G of the Crimes Act 1914 (Cth). I have already noted that her Honour expressly recognised that the applicant would not receive the benefit of remissions or reductions in the sentence. Section 16G provides as follows:- "If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly." 26 New South Wales is such a State. It is, however, clear from what her Honour said that she took into account that fact. It is contended that when one has regard to the sentence as a whole, her Honour did not adjust the sentence accordingly. There is no express recognition in the remarks on sentence of the necessity the sentence be adjusted accordingly and it is argued that when one has regard to the totality of the sentence in the light of the various considerations, it is apparent that no such adjustment has been made. It was argued that the lack of express reference to making the adjustment showed that it had not occurred. It would have been a better course to have expressly recognised the necessity for the adjustment and expressly to make it. But whether the sentence as passed was affected by the lack of any adjustment can only be ascertained by considering the extent of the sentence in the light of all the other relevant considerations. It will only be necessary to turn again to this matter if, notwithstanding the other criticisms, the sentence should otherwise stand. I will therefore defer dealing with this matter until considering whether the sentence is otherwise appropriate. 27 It was also argued that her Honour erred in the manner in which she came to set the non-parole period when she referred to not being persuaded of factors which would cause her to alter the statutory ratio. Under the relevant sentencing regime which is contained in the Crimes Act 1914 (Cth), there is no such statutory ratio. On passing sentence in a matter to which the relevant provisions of the Crimes Act 1914 (Cth), Division 4 of that Act, apply the court must, under s.19AB(1), subject to subsection (3) of that section, fix a non-parole period. (Subsection (3) relates to the court declining to fix a non-parole period having regard to the nature and circumstances of the offence and to the antecedents of the person where the court is of the view that not fixing such a period is appropriate.) But unlike s.44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), no statutory provision is made for a proportionate relationship between the head sentence and the non-parole period. Section 44(2) provides for a 75% proportion of non-parole period to overall sentence unless special circumstances are found. It was submitted that it appeared that her Honour had erred by apparently considering some such provision applied here. 28 Customarily, in cases requiring the fixing of a non-parole period under s.19AB, such periods are fixed reflecting a range of between 60% to 66% of the head sentence unless there are such exceptional circumstances as would warrant a much higher non-parole period in a worse class of case or a much lower non-parole period for some exceptional cause, although the authorities recognise that there is no binding rule of law or policy requiring that an individual sentence have, in connection with it, a non-parole period that would fall within the general range. The non-parole period in this case is approximately 66% of the head sentence. There is no such circumstance here as would warrant consideration of a non-parole period greater or less than within the usual range. Although this period is at the higher end of the range, I do not see that as showing in itself an error of principle in the exercise of the discretions or as manifesting unreasonableness. 29 It was submitted that her Honour's reference to not being persuaded indicated that she had applied to the fixing of the non-parole period a presumption in favour of a particular proportion of non-parole period to head sentence unless something akin to special circumstances were shown and had thereby wrongly reasoned as though some persuasive onus existed. Whilst I regard her Honour's language as infelicitous insofar as it appears to parallel the language that might be used in undertaking the task required by s.44(2), I am not persuaded that her Honour fell into any error in the result, having regard to the ambit of a lawful exercise of discretion and the length of the non-parole period imposed and its proportionate relationship to the head sentence. 30 It was submitted that when her Honour made reference to the role of the applicant in the passages in her remarks on sentence to which I have referred above, she erred, since the charge against the applicant was one of attempting to possess the drug rather than importing it or having been knowingly concerned in the importation of it. The submission accepted that the maximum penalty for the offences was the same. However, it was submitted that it was only open to her Honour to have regard to those acts done by the applicant which supported the charge as showing the extent of her culpability, although the context of what had been done in the importation was available to set the scene for considering the gravity of that conduct. 31 In De Simoni (supra), the High Court reiterated the common law principle that it was not open in sentencing to consider the offender's conduct as aggravated by finding against the offender conduct which might have amounted to a more serious crime and which had not been charged. It is submitted that this principle is applicable here. 32 In Regina v. Olbrich (1999) 199 CLR 270, the High Court affirmed the general ambit of the principle and applied that principle to the process of sentencing for crimes against s.233B. In the judgment of Gleeson, CJ., Gaudron, Hayne and Callinan, JJ., it is said, where the Court of Criminal Appeal had held that the identification of the precise nature of the involvement of an accused in an act of importation of drugs is an essential aspect of the sentencing process, at paras 13, 14 and 18-22:- " The significance of the circumstances of the offence 13. We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process. 14. It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate. ... 18. Finally, enquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation. The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of the other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged ( Regina v. De Simoni (1981) 147 CLR 383). It seems, however, that the intended purpose of the enquiries which the Court of Criminal Appeal had in mind was to determine the involvement of the respondent 'in any overall scheme for importing drugs into Australia' ( Regina v. Olbrich (1998) 45 NSWLSR 538 at 544, per Spigelman, CJ.). … 19. Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports (contrary to Customs Act, s.233B(1)(cb)), or being knowingly concerned in the importation of such imports (contrary to Customs Act, s.233B(1)(d)). If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. … Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. … 20. There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. … 21. Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity." 33 The portions of the judgment omit much of the discussion concerning the usefulness, if any, of attempting to define an offender's role as that of a "courier" or "principal" with which the judgment was particularly concerned but the principles stated are of direct applicability to this appeal. 34 That discussion emphasises the governing importance to the sentencing task of the precise crime charged against the person to be sentenced and also the necessity to avoid obscuring the culpability involved in what the offender did as so charged by referring to what was done by others in committing other offences. 35 It was submitted that the language her Honour had used showed she had concluded that the applicant was complicit to an extent in the importation and that it was in error having regard to the principles expounded in Olbrich (supra) for her to aggravate the penalty, as it was contended she had, by reason of finding that complicity. In particular it was said her Honour found a role in the applicant extending beyond that which had been charged by reason of the conversations in the hotel room to which I have earlier referred. It was conceded that the conversations were available to rebut any assertion of a lack of full knowledge of what was occurring when the applicant was in the hotel room. Yet, so it was submitted, those conversations were perfectly consistent with the applicant having gained her knowledge from her husband and having been sent to the hotel room, not as a mere dupe but as an expedient adopted because the courier would not come down, in the full knowledge of what was then to take place, that knowledge having only been recently gained. It was submitted that the conversations would not support a finding of more serious criminality so that, it was submitted, her Honour erred in concluding that the applicant "had a role in this importation" which was of considerably more importance than that of Ferrer and which went beyond knowingly collecting the suitcase from Ferrer at the request of Milet. In oral argument, it was additionally submitted that if it was open to find the applicant performed a role which went beyond that of so collecting the suitcase from Ferrer at the request of Milet as a stopgap or emergency measure, nonetheless it was not open to her Honour to determine any such seriously culpable role as would have warranted the sentence of imprisonment that she passed, particularly when one has regard to the sentences passed upon those involved in the importation and the limited function the applicant, on the evidence, appeared to have undertaken. It was submitted in the written submissions that her Honour should have determined, having regard to the onus and standard (see Olbrich (supra at para. 27)) that the applicant's role in the offence charged was much more confined than that which merited such a sentence as was passed. 36 Those submissions concede that it was open to the sentencing judge to refer to the entirety of what had occurred (see Regina v. Laurentiu (1992) 63 A. Crim .R. 402, per Wood, J. at 415-416) but as setting the context to the consideration of the culpability of the offender in her doing that which supported the charge against her. 37 It was submitted on behalf of the Crown that her Honour's findings were open to her when considering the entirety of the transaction and that the proper focus of her Honour's enquiry was on "the applicant's conduct and knowledge relative to the act of collecting the substitute for the narcotics and thus attempt(ing) to possess the original consignment". It was submitted that it was necessary for the sentencing judge to determine whether the applicant's role was to do no more than collect the drugs or whether it entailed, as was found, some greater degree of criminal responsibility. It was contended that it was open for the trial judge to form a view that a person in the position of the applicant bears greater responsibility than the person who brought the narcotics into the country, and that thus the sentence was appropriate. Reliance was placed on the decision of this court in Regina v. David Alan Lawless (CCA, unreported 24 June 1994) where Hunt, CJ. at CL., in delivering the judgment with which Gleeson, CJ. and Blanch, J. agreed, said:- " The fact that the jury found the applicant not guilty of the charge of being knowingly concerned in the importation does not mean, as has been submitted, that the judge was restricted to the evidence of the admissions made by the applicant to the police. In Regina v. Ferrer-Esis (1991) 55 A. Crim. R. 231 at 239, this court said that a particular circumstance relevant to both an importation offence and a possession offence may be taken into account upon the possession offence (to which the prisoner there had pleaded guilty) notwithstanding that it could also have been taken into account upon an importation offence (with which he had not been charged). In determining the nature of the applicant's possession offence for the purpose of sentencing the applicant, it was appropriate for the judge to have regard to the entire transaction: Regina v. Laurentiu & Becheru (at 415); including what he expected to take possession of and what he was going to do with it when he obtained possession - whether, for example, the drugs were for his own use, or whether he was in possession of them in the course of a commercial narcotic venture in which he was taking part as a middleman attached to an organized distribution chain: ibid (at 415-416); in other words, whether the possession related to that of an intermediary or principal in the course of an enterprise or whether it was merely that of an end user: ibid (at 418). Nor are those facts upon which the judge relied denied relevance by the sentencing principle laid down in The Queen v. De Simoni (1981) 147 CLR 383. A sentencing judge may take into account all of the conduct of the prisoner, including that which would aggravate the offence, but may not take into account as matters of aggravation facts established in the evidence which would have warranted a conviction for a more serious offence or which would have rendered the prisoner liable to a more serious penalty than that which is prescribed for the offence of which he has been found guilty: ibid (at 389, 392). Both offences involved in this trial carry the same maximum sentence: Customs Act 1901, s.233B (Cwth). Moreover, as this court also said in Regina v. Ferrer-Esis (at 239), the offence of possession is not necessarily a less serious offence than that of importing the drugs; it may or may not be, depending upon the circumstances of the particular case, and in particular upon the involvement of the individual prisoner in each: and see Regina v. Thiagarajah (1989) 41 A. Crim. R. 45 at 50; Regina v. Lam (1991) 53 A. Crim. R. 118 at 119-120; Regina v. Laurentiu & Becheru (at 419). " 38 So far as those observations do not accord with the approach of the High Court in Olbrich (supra), they are no longer to be followed. That portion of the judgment as might suggest that the principles in De Simoni (supra) cannot apply because the offences have the same maximum sentence and that all the conduct of the prisoner may be taken into account must be qualified by reference to the principles in Olbrich (supra) in which specific reference was made to De Simoni (supra) in the joint judgment as supporting the principles then enunciated. 39 I am therefore unable to accept the submissions of the Crown. Whilst I accept that there was evidence that the applicant was no mere dupe and had an involvement in attempting to possess the drugs which extended beyond that of merely knowing that she was to go to the room and obtain the drugs, I am unable to see any sound basis for any finding, even having regard to the wider context, fairly open on the evidence to which her Honour referred, to enable a conclusion that the applicant had taken any more culpable part "in the importation" than to seek to obtain possession of the drugs at the hotel by way of collecting the suitcase for her husband, albeit that she performed that role with the knowledge and offering the financial support and drugs to the courier to which her Honour referred. There is a considerable distance in terms of culpability between that position and a culpability more than that of Ferrer and roughly equivalent to that of Milet. Her Honour concluded that her role was more than merely to collect the drugs and said "I cannot find, on the evidence, what her role was to be once the drug had been collected", but also said "that role as I have found is, however, in my view an important one because it was to facilitate the start of the distribution of drugs in Australia". So much may be accepted. But neither that finding nor the applicant's knowledge and actions goes so far as establish culpability which would support a sentence having rough parity with that of Milet or that of Ferrer (disregarding in that case the 50% discount). I do not see on the materials that a conclusion that the applicant's role was greater than that of Ferrer, and approaching that of Milet, was fairly open. The words her Honour used when referring to the sentences, "those who come to this country for the purpose of participating in the importation and distribution of drugs" must expect are equally as appropriate to Milet and Ferrer, and in my view, more so. 40 The absence of personal gain and the role of her husband speak against the Crown submission that her role was one of "an intermediary in the importation". That word "intermediary" in this context is at least, vague and as to her being concerned "in the importation" bearing in mind the charge, it was hardly open to the Crown to make that submission. On the other hand, I do not accept that the offender was merely filling a stopgap role. In my view, the evidence supports a conclusion that the applicant willingly and knowingly engaged in the pick up of the 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. This is a more confined but still very culpable, if not so culpable, role. 41 I reach this conclusion having regard, to her Honour's findings of fact on the evidence to which she refers and particularly the evidence of the conversations. Thus it is apparent that it is my view that the role the prisoner fulfilled, whilst not as culpable as that for which the Crown submitted, and more culpable than that for which the defence submitted at trial, was a role which did merit a severe sentence but did not merit a sentence of the severity of that which was passed upon her. 42 In my view, the submissions of the applicant that the sentence, in all the circumstances, is excessive, have been made good. I therefore do not consider it necessary to resolve these remaining questions I have earlier referred to. Leave to appeal should be granted, the appeal upheld, the sentence passed below quashed, and in lieu thereof, the applicant be sentenced, having regard to the matters in s.16A and giving the adjustment by s.16G, to six years imprisonment with a non-parole period of three years and nine months to date from 20 April 1999. The sentence will expire on 19 April 2005. The non-parole period should expire on 19 January 2003 when the applicant will become eligible for release on parole on conditions, the breach of which might cause her to be returned to custody because of a revocation of that parole. The court's judgment is to be furnished to the applicant to constitute the explanation required by s.16F of the Crimes Act 1914. ********

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