Ground Two
25 In support of ground two, the applicant emphasises the fact that the sentencing judge found that there was no evidence that the applicant did other than facilitate the delivery of the package. His role in the distribution of its contents was unknown. Furthermore, it is emphasised that his Honour found that it was not possible to conclude that the applicant knew the actual quantity of narcotics which would be contained in the package. It is submitted that the applicant is to be regarded as at the lower end of the hierarchy involved in an importation of narcotics (see Queen v Olbrich (1999) 199 CLR 270).
26 The applicant's submissions drew attention to the applicant's previous good character. Emphasis is also placed on the fact that the total weight of pure heroin was 217.9 grams and there was no evidence as to the amount of money, if any, which the applicant would have received for his role in the importation. Attention is drawn to other cases which have resulted in an imposition of a sentence of less than that imposed on the applicant (see R v Lawless (unreported, NSWCCA, 24 June 1994: 440 grams, five years head sentence with three years non-parole). Attention is also drawn to R v Yu [1999] NSWCCA 6, R v Ho [1999] NSWCCA 440 and R v Hollins (unreported, NSWCCA, 31 May 1996). It is submitted that there have been a number of cases involving importation of heroin with a longer head sentence but a non-parole period of five years.
27 In my opinion, the sentence which his Honour imposed was within the appropriate range. This Court has, on many occasions, indicated that sentence appeals are not to be determined by a simple comparison with cases in which a lesser (or greater) sentence was imposed: see R v Jason Paul Morgan (1993) 70 A Crim R 368; R v Che Yook & Sae Sung (1995) 84 A Crim R 432. However, assistance can be gained from consideration of a range of sentences imposed in previous cases.
28 This Court considered the appropriate sentences for various drug offences in R v Wong & Leung (1999) 48 NSWLR 340. Although that decision was subsequently quashed by the High Court in Wong & Leung v The Queen (2001) 207 CLR 584, the reasons of the Chief Justice remain of considerable utility, as was pointed out in R v Taru [2002] NSWCCA 391 by Hidden J at [12] (with whom Levine and Howie JJ agreed):
"Those guidelines remain useful notwithstanding the subsequent High Court decision arising from that case, because they were expressed to be based on the existing pattern of sentence at the time that the judgment was delivered. Indeed, much of the judgment of the Chief Justice was devoted to consideration of other cases and the patterns of sentence which emerged from them." (See also R v Marchando [2003] NSWCCA 71; R v Cerullo [2003] NSWCCA 201; R v Rivadavia & Ors [2004] NSWCCA 284.
29 Wong & Leung indicates that a conventional range of sentence for cases involving mid-level trafficable quantities of heroin and cocaine: that is, between 200 grams and 1 kilogram is a head sentence of between 6 and 9 years. This was said to be the range of sentences which may apply to couriers and persons low in the hierarchy of the importing organisation. This range was provided in circumstances where an offender may have pleaded guilty and where he was being sentenced after a trial.
30 In the present case, although the applicant must not be penalised for the fact of his plea of not guilty, it means he was not entitled to any discount for his willingness to facilitate the course of justice nor for any expression of remorse or contrition. The quantity of heroin involved was in the mid-range in circumstances where the trial judge accepted that the applicant must have known that a significant quantity of heroin was being imported. There is no suggestion that the applicant required the drug for his own purposes. The only conclusion is that he was involved for the purpose of obtaining some financial gain.
31 Notwithstanding the fact that the applicant had no prior convictions, both the head sentence and the non-parole period fell within the appropriate range. Although perhaps at the higher end of that range, I see no error in his Honour's decision.
32 I propose that the application for leave be granted but the appeal be dismissed.
33 ADAMS J: As the learned presiding judge has already said, this appeal is in part complicated by some unfortunate language appearing in the sentencing reasons of the learned sentencing judge. The crucial sentence is "the sentence is further reduced to five years by reason of the subjective factors." I agree with McClellan AJA that this appears to be a reference to the non-parole period which his Honour intended to impose. However, it is plain that a non-parole period is not set or reduced by reason of subjective as distinct from objective factors. Both objective and subjective factors are relevant to both the head sentence and the non-parole period.
34 I have, however, come to the conclusion that the sentence, if indeed it is correctly transcribed, was a garbled reference to the sentencing process and did not reflect the egregious error of thinking that a non-parole period is set at a lower level than the head sentence by reason of subjective factors.
35 Accordingly, that sentence must be disregarded. When this is done the balance of the process is clearly set out and demonstrates no error.
36 I agree with the conclusions of McClellan AJA that the sentence itself, although high, is not appealably wrong.
37 SMART AJ: I agree with the judgments which have been delivered.
38 McCLELLAN AJA: The orders of the court are that the application for leave be granted but the appeal be dismissed.
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