His Honour did not accept these submissions. The learned judge found that the criminal culpability of the applicant had to be determined by reference to his participation in the importation and, in particular, by reference to the fact that he apparently worked together with Ms Cerullo in Europe, that he sent the package with the cocaine from Europe to himself, that he used an alias, that he used a false address in Frankfurt and a false telephone number. In the result, his Honour found that the applicant played a significant role in, in fact, importing the narcotic drug into Australia. In effect, Mahoney DCJ applied the approach laid down in R v Olbrich to the letter.
26 In this Court, senior counsel for the applicant similarly submitted that in bringing in the cocaine the applicant was doing what he was told; he was a mere foot soldier occupying a very low rung in the hierarchy. The submissions made on behalf of the applicant hinged on the proposition that, as it was put, the applicant was a mere "courier". It was said that his participation in the transaction was minor, and should not mask the fact that he was a mere "courier".
27 There is little utility, however, in describing the appellant as a mere "courier", and then attempting to ascribe the degree of criminal culpability attaching to his conduct by simply by reference to the allegedly minor extent to which it could be said that he departed from this role.
28 The fact is that the applicant played a critical part in the transaction. This is demonstrated by the means he used to disguise his identity and to bring the cocaine into this country. The importation scheme was not unsophisticated and his role in it was significant. He was actively involved in the attempt to set up, as it were, a mirage of false facts so as to conceal from the authorities the importation of the drug. It is these matters to which the Court has to have regard when measuring the criminal responsibility for which the applicant is to be sentenced.
29 Senior counsel for the applicant then turned to the case of R v Ferrer-Esis (1991) 55 A Crim R 231, and based a series of arguments on it. He pointed out that in Ferrer-Esis the applicant was sentenced on a similar charge to 6 years imprisonment with a non-parole period of 3 and a half years. That it was said had to be compared with the substantial higher sentence imposed in this case. He drew attention to the fact that the quantity of pure cocaine in Ferrer-Esis was three times more than the quantity involved in the present case and rightly submitted that quantity is a significant factor in the sentencing exercise. He pointed out that in Ferrer-Esis the Court considered that there was no warrant for a discount for the plea of guilty whereas in the present case there was nothing to detract from the usual practice. So, he submitted, the respondent in Ferrer-Esis had displayed culpability greater than that of the applicant in this case.
30 I accept that the matters on which reliance was placed all carry weight. I am not persuaded by them, however, for the following reasons.
31 Firstly, and importantly, the respondent in Ferrer-Esis, in committing the crime of which he was charged, was found solely to have brought in a suitcase containing cocaine into this country. He did not otherwise participate in the transaction. This is to be contrasted with the far more significant role played by the applicant in this case.
32 Secondly, Ferrer-Esis is not the single touchstone against which all sentences in cases of this kind are to be compared. Since Ferrer- Esis, the case of R v Wong and Leung has established guidelines against which criminal conduct can be measured, even though the conduct concerned might not fall directly within that to which the guidelines are expressed to apply. Moreover, there have been several cases since R v Wong and Leung which bear on the issue.
33 Thirdly, due regard has to be had to the fact that Ferrer-Esis was a Crown appeal.
34 In the notice of the appeal the applicant claimed that Mahoney DCJ did not take into account the fact that hardship would be caused to the applicant because his family reside in South Australia. This submission was rejected by the learned judge, and in my opinion entirely correctly. I would simply paraphrase what I said in Heryadi (1998) 98 A Crim R 578 at 584. The applicant made a deliberate choice to participate in the criminal distribution in New South Wales of drugs, the trade known universally as being the cause of great harm and misery. He was content to import the drugs into this State, in the knowledge that the citizens of this State would suffer the consequences of his criminal acts. In these circumstances, to complain that he would be incarcerated in New South Wales and not in South Australia and he would miss his family is, in my view, futile.
35 Senior counsel for the applicant drew attention to the fact that the respondent is in a serious state of ill health, both physical and psychological. He is an alcoholic, and a compulsive gambler. Submissions were also made concerning the applicant's deprived upbringing, and the violence and abuse he had received as a child.
36 While these are undoubtedly factors of some relevance, I do not regard them as being of particular weight. In Quach v R [1999] WASCA 210 I said:
"The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile.
To argue that personal circumstances and antecedents have significant mitigatory force see, for example, Darwell v R (1997) 1994 A Crim R 35, Heryadi v R (1998) 98 A Crim R 578 and Musarri v R unreported CCA S Ct WA, Library No 980662, 17 November 1998."