8 The applicant operated a business called MP Communications. Kiriakos Markar was employed by the applicant with MP Communications. The applicant's nephew, Juan Uzabeaga, was employed by Guptas Communications. At 2.41 pm on 13 October 1997 a copy of the customs notification card was faxed from Guptas Communications to MP Communications. Juan Uzabeaga was believed to have been responsible for sending the facsimile.
9 On 13 October 1997 members of the ACS intercepted a second consignment having the same consignor and consignee as the package which had been intercepted on 10 October 1997. This package also contained a satellite receiver. Examination revealed that secreted within that satellite receiver was 3375.7 grams of cocaine.
10 The applicant arranged for customs clearance of both consignments through a customs clearance agency.
11 Around 10 am on 14 October 1997 the applicant and Kiriakos Markar drove in the applicant's vehicle to the Clyde International Mail Centre. Markar entered the mail centre by himself and took possession of the consignment which had arrived on 10 October 1997. He returned to the vehicle placing the consignment in the boot and he then left on foot. The applicant drove the vehicle to 83-93 Dalmeny Avenue, Rosebery. At those premises he removed the package from the boot and took it to unit 293. Unit 293 was occupied by Orlando Henao and his wife Maria Guzman. Conversation between the applicant and Henao and Guzman in that Unit was monitored by the AFP by means of a listening device. During the course of this conversation the applicant on two occasions referred to the consignment saying "the lady has arrived". He said that a person named Johnny had $20,000 and was waiting for Henao to sell to him. Henao then said: "and there is still another one on the way which is coming. It will arrive the day after tomorrow".
12 The applicant left the premises at around midday, leaving the package with Henao and Guzman. They subsequently took it to another unit in the same block. This unit had been rented by the applicant on 5 September 1997 for a period of six months. It was unfurnished. Henao and Guzman commenced to dismantle the satellite receiver inside the unit. At about 1.15 pm the applicant returned and went to that unit. Conversation in the unit was monitored by the AFP. Henao said to the applicant "This is salt. Taste it. Try it with your tongue". Discussion took place after that between the three offenders concerning the identity of the person who may have swapped the drug for salt.
13 At about 1.50 pm that day, AFP officers entered the unit and arrested the applicant, Henao and Guzman.
14 The applicant declined to be interviewed by police.
15 The cocaine contained in the first consignment was found to be 69% pure with a net weight of 2635.4 grams of pure cocaine. The cocaine contained in the second consignment was found to have an average purity of 37% and a net weight of 1249.0 grams of pure cocaine. The net weight of pure cocaine contained in the two consignments was 3884.4 grams.
16 The applicant, Henao and Guzman were each charged with the same two offences contrary to s233B(1)(d) of the Act. Henao was also charged with an offence relating to the possession of money reasonably suspected of being the proceeds of crime. The amount involved in his case was the sum of $134,650 being cash found in his apartment. He, too, asked the court to take into account that matter pursuant to the provisions of s 16BA of the Crimes Act 1914.
17 The applicant, Henao and Guzman each entered pleas of guilty to each count before the District Court on 6 October 1998. Kiriakos Markar also entered a plea of guilty to a charge brought against him of attempting to obtain possession of prohibited imports, to which s 233B of the Customs Act applies, namely a quantity of cocaine being not less than the commercial quantity. Judge Christie sentenced each of the offenders. Kiriakos Markar was dealt with on 27 November 1998. His Honour found that Markar's activities in the enterprise must be looked at as about the level of a courier. He imposed a sentence of six and a half years (taking into account a period of close to six months pre-sentence custody which had been served) and specified a non parole period of four and a half years.
18 On 9 April 1999 Judge Christie dealt with Henao and Guzman. His Honour sentenced Henao on the first count to a sentence of seventeen and a half years with a non parole period of thirteen and a half years. In the case of Guzman a sentence of twelve and a half years with a non parole period of nine and a half years was imposed on the first count. With respect to the second count Henao was sentenced to a fixed term of eight years to be served concurrently with the sentence imposed on the first count. Guzman was sentenced to a fixed term of seven years on the second count to be served concurrently with the sentence imposed on the first count.
19 Henao and Guzman appealed against the severity of the sentences imposed upon them. Both matters came before the Court of Criminal Appeal on 20 April 2000 (Regina v Guzman & Henao [2000] NSWCCA 261). In each case the Court rejected the contention that the sentences were manifestly excessive but allowed the appeals having determined that Judge Christie erred in fixing the non parole period at approximately 75% of the head sentence. In the case of Henao, the sentence was quashed and the offender re-sentenced to a term of seventeen and a half years imprisonment with a non parole period of twelve years. In the case of Guzman, the sentence was quashed and the Court re-sentenced the offender to a term of twelve and a half years imprisonment with a non parole period of seven and a half years. It is to be noted that the Court considered it appropriate to impose a non-parole period proportionately somewhat higher in the case of Henao than that imposed on Guzman. This reflected both Henao's criminal antecedents and the relatively greater role played by him in the enterprise. In 1984 Henao had been convicted of the supply of Indian hemp and sentenced to a term of three years imprisonment. Subsequently, he had been convicted by a court in New York of the supply of a controlled substance. For this offence he was sentenced to a term of between five years and life imprisonment. On his release on parole he was deported from the United States and he returned to Australia. Within six months of his arrival he was arrested in connection with the subject offences.
20 Mr Byrne SC, who appeared on behalf of the applicant, advanced three challenges to the sentence imposed on the first count: (i) it was manifestly excessive in the light of the guidelines promulgated by this Court in R v Wong and Leung (1999) 108 A Crim R 531 at paras 141-142; (ii) it was excessive by comparison with the sentences imposed on the co-offenders, Henao and Guzman; (iii) the non-parole period was fixed at too great a proportion of the head sentence.
21 In the light of the view I take concerning the second ground, I do not propose to dwell at length on the submissions which challenged the sentence as manifestly excessive in the light of Wong and Leung. It is to be noted that the applicant's offences involved a total of 3.88 kilograms of cocaine. This brings him within the "substantial commercial quantity" category by reference to the classification of offences in Wong and Leung. Mr Byrne accepted that it was appropriate to have regard to the total quantity of the drug involved in the two importations in this regard. He submitted that accordingly the range was between ten and fifteen years although he acknowledged than an increment may be appropriate in order to reflect the fact that the applicant was not to be dealt with as a "mere courier".
22 The applicant pleaded guilty, he had an unblemished record and had provided assistance to the authorities. In the light of these three factors it was contended that a sentence which was "at the top of the range" nominated in Wong and Leung bespoke error. I do not accept that is so. The guideline in Wong and Leung was expressed to apply to couriers and persons low in the hierarchy of the importing organisation. There was no issue but that the applicant's role in the commission of the subject offences was greater than that of a courier or person low in the hierarchy of the importing organisation. In the light of this concession it is seems to me to be wrong to speak of the present sentence as being "at the top of the range".
23 In the course of his reasons, Judge Christie said that he considered a sentence of twenty five years to be an appropriate starting point. His Honour said that he proposed to reduce this to one of twenty-one years in order to reflect the applicant's plea of guilty, prior good character, assistance to the authorities (which also led to the circumstance that the applicant would serve at least a significant proportion of his sentence in protection) and the delay in the matter being finally disposed of by the Court. Mr Byrne observed that the discount identified by his Honour was of the order of fifteen percent. He submitted that this was an insufficient recognition of the favourable factors identified by the Judge.
24 Mr Byrne placed greatest emphasis in developing this latter submission on the applicant's assistance to the police. The applicant had come forward at a relatively early stage in the investigation. The nature of his assistance was described by Federal Agent Zuccato in a letter dated 6 October 1998. Agent Zuccato noted: