Regina v X, Regina v Y

Court of Criminal Appeal (NSW)|2001-09-03|Before: Bell J, Howie J, Smart AJ

CITATION : Regina v X, Regina v Y [2002] NSWCCA 40 FILE NUMBER(S) : CCA 60291/01; 60320/01; 60321/01 HEARING DATE(S) : 3 September 2001 JUDGMENT DATE : 26 February 2002

PARTIES : Regina v X, Regina v Y JUDGMENT OF : Bell J at 1; Howie J at 2; Smart AJ at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0539; 00/11/0540 LOWER COURT JUDICIAL Mitchelmore ADCJ OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60291/01 60320/01 60321/01

1 BELL J: I agree with the orders proposed by Smart AJ for the reasons that his Honour gives. 2 HOWIE J: I have had the very great benefit of reading in draft the judgments in these matters prepared by Smart AJ. I gratefully adopt his summary of the facts and the principles to be applied in determining the appropriate sentences for each of the respondents. 3 I agree with Smart AJ that in the case of each of the respondents the appeals should be allowed and the sentences increased. However, I cannot agree with his Honour's decision that in each case the non-parole period should remain unaffected. I would increase them. I appreciate that I am in the minority in this view and, therefore, will give my reasons briefly. 4 In my opinion, the sentences imposed by the sentencing judge failed to a very significant degree to reflect the objective seriousness of the offences, the extent of the respondents' criminality in the scheme to import large quantities of drugs into Australia, the need to denounce such activity which so significantly imperils this community, and the need for general deterrence. Whatever the subjective circumstances of the respondents, however significant be the assistance given and proffered by them and notwithstanding the difficult circumstances of the custody they face as a result of the assistance given by them, the total sentences imposed and particularly the non-parole periods specified were, in my respectful opinion, inadequate to properly punish them for what they did. 5 In my opinion a discount of the extent granted to the respondents is appropriate only in the most exceptional case. Whether it is an exceptional case is not determined only upon an assessment of the assistance granted or the consequence of that assistance. The determination of whether a particular case is so exceptional as to justify the reduction of the otherwise appropriate sentence by more than half cannot be considered in isolation from a proper regard to the offence committed or the need for general deterrence. A failure to do so is likely to result in a sentence that is inadequate to a significant degree. Encouragement of offenders to co-operate is one thing: the passing of an inadequate sentence because of that co-operation is quite another. The deterrence aspect of the sentence is diluted by the promise of a discount if the offender co-operates when caught. I do not believe such a discount can be justified in the present case having regard to the very great seriousness of the offences committed and the substantial criminality of the respondents' involvement in them. 6 But at the end of the day, no matter what be the mechanics of arriving at the sentence, the starting point chosen or the discounts applied, the sentencing court must stand back and ask whether the sentence is appropriate to the crime committed. When that question is asked in the present cases, the answer is a resounding "No". 7 I believe that the Crown's submission put to this Court that the starting sentence for X before the application of the discounts for assistance and under s 16G of the Crimes Act 1914 should have been life imprisonment had very substantial merit. Such a sentence would have been justified, in my view, even though the respondent was not a principal in the conspiracy. What he did, in the context of the seriousness of the importations in which he was involved, particularly when considered against the fact that he had a previous conviction for a serious offence of this type, justified a life sentence before the discounts were applied. As against the seriousness of his criminal conduct, the subjective material was of little weight. 8 The maximum sentence for an importation is not necessarily reserved for a principal. The importation can be of such seriousness and the role of a participant so significant to the importation that the objective seriousness of the offence committed warrants the imposition of the maximum penalty notwithstanding that the criminal activity of others involved in the importation may have been more serious. If the respondent's activity warranted the maximum penalty, he can be hardly heard to complain that others more seriously involved also received the maximum penalty. 9 Had the sentencing judge started his assessment of the appropriate sentence for X on the basis that the objective facts warranted life imprisonment, there would, in my view, have been no appealable error in that determination. But that is not the question before this Court when considering an appeal by the Crown. It cannot be said that his Honour had no discretion other than to impose the maximum sentence of life imprisonment on X. Therefore, the Crown's submission that his Honour was in error in not starting from that sentence must fail. 10 In any event, it will rarely, if ever, be appropriate for the Crown to argue on its appeal to this Court that the maximum sentence should have been imposed when the Crown made no such submission to the sentencing court. The Crown should not be heard to make a different case in this Court than it did at first instance. I appreciate that it is not normal practice for the Crown to urge a sentencing judge to impose a particular sentence, but the imposition of the maximum penalty for any offence is such an unusual and significant step, that, in my view, the Crown should make such a submission before the sentencing judge to permit the offender to meet it and the sentencing judge to consider its merits. 11 I agree with Smart AJ that the starting sentence for X was manifestly inadequate and, although I doubt the appropriateness of the figure chosen by his Honour, I am prepared to accept it for the reasons he gives in his judgment. The non-parole period imposed upon X was also manifestly inadequate. However, I cannot agree with Smart AJ that a minimum period of custody at the bottom of the available range should be considered now or should have been considered by the sentencing judge. 12 The non-parole period is part of the sentence and should be determined according to the facts and circumstances of the particular offender. Simply because a guideline has emerged which suggests that a non-parole period of about two-thirds of the total sentence is generally to be considered appropriate for Commonwealth offences in the normal case, it does not follow that the sentencing judge, or this Court, is relieved from making a proper determination of the minimum period that a particular prisoner should serve in custody. To observe that there is a proportion of the total sentence that will generally be appropriate for a non-parole period and then simply to apply it as a matter of course is to reduce sentencing to a mathematical formula. I believe that there is a real danger of this happening in the sentencing of Commonwealth offenders. I have little doubt that it was the course taken by the sentencing judge. 13 I cannot agree that an appropriate non-parole period for X is 60 per cent of the total sentence. The non-parole period is to reflect all the relevant factors that determine the appropriate punishment, including not only rehabilitation but also specific and general deterrence. Having regard to X's previous conviction and the fact that the overall sentence has been substantially reduced by reason of the custodial consequences for him of the assistance he has given and proffered, a non-parole period of 60 per cent is, with respect, completely unjustified. Although the age of X might in some circumstances be a relevant matter, it has little, or no significance in determining the appropriate non-parole period in this case. X was 55 years of age when he committed the present offences which involved serious and continued criminality extending over a period of 5 months. The fact that he is now required to serve a lengthy sentence at the age of 57 years seems to me to be of no consequence. Nor does the age at which he will be released after an appropriate period in custody have any relevance in determining what that period of custody should be. The fact that X may have to leave the country at the expiration of the sentence would argue against the imposition of the normal non-parole period, let alone, one at the bottom of that range. Further, the nature of his custody is a matter that was taken into account in the exceptional discount that was applied to the head sentence and that, necessarily, reduced the non-parole period he would be required to serve. It is not a factor that should necessarily be taken into account again as justifying a non-parole period at the bottom of the range. 14 The Crown appeal has succeeded in respect of the sentence imposed upon X. That means that this Court should now re-sentence the respondent and consider for itself the appropriate non-parole period. The non-parole period of 6 years remains, in my respectful opinion, manifestly inadequate. I believe that the proportion of the sentence to be served by way of a non-parole period should be 75 per cent and, therefore, 7 years 6 months. That is the non-parole period that, in my view, should now be imposed.

15 So far as the sentences for Y are concerned, I am prepared to accept that they should be increased to the extent that Smart AJ proposes, although I believe that the sentences as increased are still inadequate. Again the age of Y is, in the circumstances of this case, of little consequence having regard to the nature and the extent of the criminality in which he voluntarily involved himself at the age of 59 years. In those circumstances I would not give the weight to Dr Westmore's report that Smart AJ does. Any mental condition from which Y suffers appears simply to be the fact that he is in custody, a result he richly deserves.

16 Unfortunately, I cannot agree with Smart AJ's view that an increase of a non-parole period from 3 to 4 years is an insufficient interference with the sentence to justify the intervention of this Court. As I have indicated it is not in my view a case of simply considering the non-parole period as a separate part of the sentence imposed upon him. The Court is to consider for itself the appropriate non-parole period upon re-sentencing him. A non-parole period of 3 years is in my respectful view manifestly inadequate in order to reflect general deterrence and to punish Y for his involvement in this enterprise. The 4 years chosen by Smart AJ as the appropriate non-parole period which would apply to the new head sentence was calculated on the basis of a 60 per cent discount which, in my view, is hardly justified on the facts of this matter. I would be prepared, because it is a Crown appeal, to agree to such a non-parole period, but anything less than 4 years is, in my view, insufficient to denounce Y's criminal conduct and deter others from involvement in such a serious criminal enterprise.

17 I would allow the appeals and increase the head sentence in each case as proposed by Smart AJ. However, I would quash both non-parole periods and substitute a non-parole period of 7 years 6 months in the case of X and 4 years in the case of Y.

18 SMART AJ: No material should be published which identifies or tends to identify either respondent to this Crown appeal because of the substantial risk of danger to their lives if publication occurred. Accordingly I have used pseudonyms.

19 The Crown appeals against the alleged inadequacy of the sentences of imprisonment upon each of them. X sought leave to appeal against the alleged severity of the sentence imposed upon him but that application was not pressed and leave to appeal is refused.

20 Both X and Y were convicted and sentenced on one offence of conspiracy to import prohibited imports (cocaine), being not less than a commercial quantity and one offence of conspiracy to import prohibited imports (ecstasy), being not less than a commercial quantity pursuant to pleas of guilty. X was sentenced on each count to concurrent sentences of 7 years 6 months with a non-parole period of 5 years. Y received concurrent sentences on each count of 5 years with a non-parole period of 3 years, each having given assistance to the authorities. The offences related to one importation. The conspiracy extended over the period 5 August 1999 to 10 January 2000 and involved X, Y, four other nominated persons and divers other persons who were not named. These offences under s 233B of the Customs Act 1901 (Cth) render the offenders liable to life imprisonment. The pure amount of cocaine was 7.1648 kilograms and that of ecstasy was 24.4889 kilograms, the latter comprising both tablets and powder.

21 In July 1999 two of X's co-conspirators sought to recruit X to assist with the importation into Australia of commercial quantities of narcotics including ecstasy, cocaine and speed. X subsequently agreed. Shortly thereafter X enlisted the help of Y to assist with the concealment and transportation of the narcotics. X received $50,000 from a co-conspirator to pay for expenses incurred during the organisation of the importation.

22 X and a co-conspirator left Australia over 10 days apart and, pursuant to arrangements made, met in late September 1999 in Europe where the co-conspirator told X of the proposed size of the importation and X advised that a place would be needed where the narcotics could be packed. X arranged for Y to provide for the concealment and shipment of an increased quantity of narcotics. In October 1999 further meetings were held between X and the co-conspirator in Europe with the latter providing a house in a European city where the narcotics were to be packed.

23 Prior to his departure from Sydney for Europe in mid-October 1999 Y sent a number of separate consignments of hydraulic rams to an agricultural supplier in another European city with instructions to hold them for collection. These rams had been modified to allow the internal concealment of narcotics. On arrival in Europe Y hired a van, collected all 38 rams and drove to the European city where X was waiting. They then went to the house which had been previously provided.

24 The co-conspirator delivered the narcotics to the house which he had provided. After he left, X and Y packed the narcotics into the rams which were taken to a company located in another area where they were held pending further instructions.

25 Some days later Y faxed instructions from California to a Sydney freight forwarding company to arrange for the collection and transportation of certain consignments (including the rams) from European addresses and have them delivered to Brisbane in a shipping container. X and Y respectively returned to Australia from the United States towards the end of October 1999. X and Y at the request of another co-conspirator co-operated to return $15,000 being an unspent part of the $50,000 for expenses earlier mentioned.

26 Thereafter there were many conversations between X and Y and between the co-conspirators. There is no need to recount these or their many journeys. They were awaiting the arrival of the ship carrying the container and its subsequent delivery in Brisbane to Y's factory. The container left a European port by ship in late November 1999 and, after a transfer, arrived in Brisbane by another ship in late December 1999.

27 On 4 January 2000 Customs found 38 hollowed rams in the container. The narcotics were stored in the hollowed out sections of the rams. Customs removed most of the narcotics. On 5 January 2000 an authorised controlled operation was commenced, the narcotics previously removed from the hollowed out sections were replaced by inert substances.

28 The Customs agent advised Y as to the likely delivery time of the container at his Brisbane premises. Y kept X advised of the anticipated delivery time. After the delivery of the container on Friday 7 January 2000, Y unpacked the hydraulic rams. Subsequently he hired a van and loaded the hydraulic rams into the rear of the van. Shortly after 5.30am on Saturday, 8 January 2000 Y drove the van (with the hydraulic rams) south towards Sydney. Late on Saturday afternoon Y arrived at X's factory in Sydney. X was there to meet Y. They secured the van in X's factory overnight.

29 About 7.30 am on Sunday, 9 January, at X's factory X and Y commenced opening the hydraulic rams and removing the substituted material. Upon realising that the contents had been interfered with they left the factory and were arrested a few minutes later.

30 Throughout the days leading up to 9 January 2000 the other co-conspirators were kept apprised of what was happening. They prepared to receive the narcotics and two of them attended to collect them. They were subsequently arrested and charged. Full details of all that took place are set out in the agreed statement of facts. I have given but a brief outline of what happened.

31 In separate supplementary reasons to be placed in a sealed envelope, not to be opened without the leave of this Court or a judge of this Court, I have discussed the assistance given by X and Y to law enforcement authorities. That discussion covers much confidential material. For reasons affecting the security of X and Y and their families that discussion cannot be made public. We were told that the trials of the co-conspirators have yet to take place.

32 The Crown attacked the trial judge granting both X and Y a discount of 58 per cent for assistance rendered. In the supplementary reasons I have concluded that having regard to the exceptional nature of the assistance rendered and its value, this Court should not interfere with the trial judge's assessment in either case. The effects of that assistance extend far beyond the confines of the present case and advanced the public welfare and the public good.

33 The judge was satisfied that X was not involved in the initial acquisition of the drugs nor their distribution. His reward had not been quantified. The judge gave X a discount for his plea of guilty at the earliest time noting its utilitarian value and his acceptance of it as an expression of contrition, but noted that it was a strong Crown case. The judge did not quantity the discount he allowed. The judge also took into account that X would serve his sentence in strict protection and the increased stress he would suffer by being labelled as an informer. This affects a prisoner's health. The judge attached weight to the report of Dr Perica, a consultant psychiatrist, who has considerable experience in the prison system. Prisoners in the special protection centre are reluctant to discuss matters with their fellow informers except subjects such as the weather. There is a great deal of stress and the prisoners there have a pervasive fear for their own safety and that of their families. Dr Perica's description of the adverse effects of special protection upon the inmates is graphic.

34 The judge stressed the gravity of the objective criminality noting the large amounts of narcotics involved and that X entered into the operation with his eyes wide open and for financial gain. The offence had continued over many months.

35 X is presently 57 years of age. On 15 December 1978 he was sentenced to 20 years imprisonment for having prohibited imports (nearly 10,000 grams of heroin) in his possession without reasonable excuse. The non-parole period was 10 years. With remissions he was released from gaol in May 1986 and from his supervision obligations as from August 1989. After his release from prison he was mainly self-employed. He has a de facto wife and a child but they do not live in New South Wales. He has no family support while in gaol.

36 The judge stated that he reduced the sentence pursuant to s.16G of the Crimes Act 1914 (Cth) because no remissions are available. The judge did not state how much he reduced the sentence. The usual reduction is about one-third, but that is not an inflexible rule or practice. If the usual percentage is applied that would mean the judge started with a sentence of about 27 years.

37 The judge said that but for the assistance X gave he would have received a sentence of 18 years with a non-parole period of 12 years. The judge attributed 29 per cent of the 58 per cent to the assistance already given by each of the offenders and 29 per cent to continued assistance in the future and further held that if the assistance is withdrawn or successfully challenged the appropriate sentence would be 12 years 9 months with an 8½ years non-parole period.

38 The Crown submitted that the starting point of 18 years head sentence and 12 years non-parole period would have been within the range for an offender with no prior conviction. It relied on Wong and Ng (1988) 39 A Crim R 1; Lim NSWCCA 26 June 1996; McCauley NSWCCA 17 December 1994 and Weininger [2000] NSWCCA 501. However, the Crown contended that because of X's prior conviction for a substantial drug trafficking offence the starting point should have been substantially higher. The Crown relied on Kingswell (District Court of NSW, Solomon DCJ, 8 February 1997); Perrier (No 2) Vic CCA 11 May 1990 and Postiglione NSWCCA 13 December 1998.

39 Kingswell attempted to gain possession of 2 kilograms of heroin for distribution following an importation by post. His prior record comprised possession in 1978 of 20.6 kilograms of cannabis, for which he received a 3 year head sentence and a non-parole period of 1.5 years, and conspiracy to import 1.3 kilograms of heroin in 1984 for which he was sentenced to 18 years with a minimum term of 12 years.

40 Kingswell was sentenced to life imprisonment with a non-parole period of 15 years 4 months, having at the date of sentence already served 1 year 8 months. This made a non-parole period of 17 years. There was no discount for plea or assistance. Kingswell thus had two previous offences and it would seem that the third offence happened about 11 years after the second offence. Kingswell offers limited assistance.

41 Perrier was the principal in an importation of 1.6 kilograms of heroin. His main previous offence was unlawful possession of heroin in 1981 for which he served 2 years in prison. He was sentenced to life imprisonment with a minimum term of 22 years. There was no discount for plea or assistance. Perrier was a principal and the gap between the offences was less than nine years. This decision is of limited assistance.

42 Whilst in prison Postiglione conspired with others to import 20 kilograms of heroin and 20 kilograms of cocaine. No importation was effected. He had two major prior offences. In 1980 he was sentenced to 12 years imprisonment for drug trafficking. He was released on bail pending his appeal which was never determined. In 1990 he was sentenced to 12 years with a non-parole period of 9 years for being knowingly concerned in the importation of 5.5 kilograms of heroin. This Court determined on 13 December 1998 that but for the assistance given to the authorities the starting point for his sentence would have been 21 years with a non-parole period of 16 years 10 months. That took into account his plea of guilty.

43 The Crown also relied on s.235(2)(c) of the Customs Act 1901 which provides for an increased maximum penalty in the case of second offences concerning traffickable quantities. It was submitted that this demonstrated the specific intention of the legislature that penalties should be higher for repeat offenders in drug importation cases.

44 The Crown accepted that s.235 was not directly relevant to the present case. The Crown submitted that X's prior offence was a very serious one for its era (nearly 10 kilograms of heroin) and pointed out that one of the present offences involved a record quantity of the medium level narcotic MDMA. The quantity of cocaine was also substantial.

45 There was a gap of some 21 years between X's prior offence and the present offences and supervision had ceased as from August 1989. The Crown accepted that this was not a case in which it could be said that X was reverting to a prior pattern of criminal behaviour or that X was continually involved in drug offences. It seems that he yielded to the importuning of a co-conspirator despite having previously resisted his enticements.

46 The Crown submitted that a starting point based on X's objective criminality but prior to taking into account subjective matters including the plea of guilty and assistance would have been life imprisonment with a non-parole period of 18-24 years. Indeed, the Crown submitted that it was not open to the Court to impose a sentence of other than life imprisonment because of X's prior serious drug offence and the gravity of the present offences. The Crown contended that such sentences were appropriate to both offences, as the first involved 7.16 kilograms of a high range drug and the second 24.48 kilograms of a mid range drug (MDMA).

47 The Court raised with the Crown whether a sentence of life imprisonment was appropriate for a non principal where he had not been convicted of any drug offence for over 20 years. The Crown submitted that it was. I accept that there could be such cases but this is not one of them.

48 Before the judge the Crown submitted that X's role was more than a mere courier but less than that of a principal and that he should be categorised as the organiser of the transportation and packing of the drug shipment. I do not attach importance to labels. It is better to concentrate on what X did. X had appreciable executive responsibilities requiring skill and initiative. He was in charge of major aspects of the drug importation. It is going too far to submit, as the Crown did, that X was virtually a principal. From the tenor of the Crown's submissions and the judge's remarks it seems that it was not put to the judge that the correct starting point was a sentence of life imprisonment because of the prior conviction and the criminality involved in the present case. This Court is not bound by the approach taken by the Crown before the judge but it has to be taken into account especially when the Court decides whether in the exercise of its discretion it should intervene in this Crown appeal.

49 Both parties contended that this Court should not adopt any formulaic or mathematical approach to the sentences imposed. I agree. In Pearce v The Queen (1998) 194 CLR 610 at 624 McHugh, Hayne and Callinan JJ said: "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is then all the more important that proper principle be applied throughout the process."

50 In Wong v The Queen [2001] HCA 64 Gaudron, Gummow and Hayne JJ at paras 45 and 60 stressed the importance of the application of correct principles when imposing a sentence or reviewing one previously imposed. At 74 they rejected a mathematical approach to sentencing. At 76 they referred with approval to these remarks of Gleeson CJ in Gallagher (1991) 23 NSWLR 220 at 228: "It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical."

The majority highlighted the complexity of the sentencing task. 51 Section 16A of the Crimes Act 1914 (Cth) provides that a Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) lists matters in addition to any other matters which the Court must take into account. The list includes, separately, a plea of guilty and the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences. Section 16G provides that if a federal sentence is to be served in a prison of a State where State 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.

52 Section 21E provides that where a federal sentence or a federal non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies in proceedings the court must, if the sentence or non-parole period is reduced, specify that the sentence or non-parole period is being reduced, as the case may be, for that reason and what the sentence or non-parole period would have been but for that reduction. This normally involves the judge working out the discount to be given for assistance to the authorities. While the ultimate sentence is all important the Act requires specific steps to be taken and the discount for future assistance to be specified. In the present case the judge has revealed much of how he arrived at the sentence he imposed on X.

53 Conscious of the vices of a formulaic or mathematical approach it is nevertheless useful to reflect upon the figures which have been discussed during the course of argument in the light of what appears from the judge's remarks. I agree with the Crown that, absent X's prior conviction and prior to the discount for assistance a head sentence of 18 years with a non-parole period of 12 years was within the permissible range, but depending on the subjective factors a lesser sentence may also be within the permissible range. The thrust of the Crown case was that such sentences were not permissible when there was a prior serious drug offence, the effect of which was to disentitle X to leniency. It does not necessarily follow that a head sentence of 18 years with a non-parole period of 12 years is not within the permissible range when the prior serious drug offence happened 21 years ago and the offender has been at large in the community for over 13 years and has not committed any offences in the meantime. He has not forfeited all claims to leniency although that prior serious drug offence significantly reduces the leniency which X should receive.

54 I reject the submission that the judge was bound to accept as a starting point, that X should be sentenced to life imprisonment. This was not suggested by the Crown to the judge. X was not a principal and had a limited albeit an important role. The prior serious drug offence occurred 21 years ago and X has not forfeited all claims to leniency. None of the drugs were distributed in the community although this was due to Customs intercepting the importation.

55 X submitted that the Crown had not established any error of sentencing principle or any error of fact and that the Crown case depended upon the sentences imposed themselves bespeaking error because they were so manifestly inadequate having regard to the objective criminality of X and the offences. X submitted that the latter proposition had not been established. X submitted that the judge had taken into account all relevant considerations and that appears to be the case.

56 This Court was reminded that it has often been said in this Court that prior good character possesses less significance in crimes involving drugs than it does for other offences: R v Leroy [1984] 2 NSWLR 441 and R v Duc Ky Lu (unreported NSWCCA, 28 March 1989, per Wood J). Wood J also added that it was not to be ignored.

57 X submitted that if good character has limited significance then having a previous conviction cannot have a major significance in determining the sentence. This does not follow. Having a conviction for a previous serious drug offence is significant for sentencing purposes.

58 X referred to a series of cases that emphasise the restraint which this Court exercises when dealing with Crown appeals against sentence on the ground of inadequacy: Griffith v The Queen (1976-77) 137 CLR 293 at 310, R v Baker [2000] NSWCCA 85, Allpass (1994) 73 A Crim R 561 at 562-3. This Court does not intervene simply upon the basis that the members of this Court would have exercised the sentencing discretion differently from the judge at first instance.

59 I propose to look at the sentences imposed in two ways. Firstly, having regard to the very serious objective criminality of the offences and the prior conviction for a serious drug offence, but taking into account all the subjective factors other than the discount for assistance and prior to any adjustment under s.16G, a starting point of less than 35 years would be manifestly inadequate. The judge's starting point of 27 years was manifestly inadequate. Applying the usual adjustment under s,.16G of about one third the sentence reduces to 24 years. If a discount of 58 per cent is applied the sentence is reduced to 10 years. (I interpolate that the same result is achieved if the discount of 58 per cent is applied to the 35 years and then the s.16G adjustment is applied). A non-parole period would then be fixed in the range of 60 per cent to 60-2/3rds: Bernier (1998) 102 A Crim R 44 at 49. There is no good reason not to apply the usual range and it seems correct to do so. I would select 60 per cent and thus the non-parole period would be 6 years.

60 Alternatively, taking an overall approach and balancing all the considerations and circumstances but bearing in mind that the Court is required to state what the sentence and non-parole period would have been but for the discount for future assistance of 29 per cent, I would arrive at the same sentence of 10 years and the same non-parole period of 6 years as being the lowest sentences which could be imposed. I have been influenced by X having to serve his sentence in special protection, the severity of the conditions there and their adverse effect.

61 I come now to the exercise of the Court's discretion. A head sentence of less than 10 years is manifestly inadequate.

62 The difference between the lowest permissible sentence and that imposed is 3 years. That is an appreciable gap. I appreciate the weight of double jeopardy as a consideration. Nevertheless, the Court must intervene. The non-parole period poses greater problems. The discrepancy of 1 year between the lowest permissible non-parole period of 6 years and the non-parole period fixed of 5 years is not such as to warrant this Court's intervention, especially having regard to the factor of double jeopardy. If the applicant is released on parole at the expiry of the non-parole period he will be 62 years of age. He will probably have to move to another country and re-establish himself. This is unlikely to be easy as it seems that he will have no resources.

63 Many of the facts have previously been outlined. The judge was satisfied that Y had no part in acquiring the narcotics and was not involved in plans for their ultimate dissemination. He had no contact with the principals of the drug importation. Y was recruited by X. While Y's role was less than that of X, Y made an active and important contribution to the importation.

64 Y was influenced to join the operation as a result of his thirty year friendship with X and the financial benefits it promised, principally the latter. Although Y had worked hard all his life, he was not well placed financially. He had little on which he could rely as he approached retirement. There was a sense of financial desperation. This does not excuse Y but it does provide some explanation for his conduct. At the time of the offence Y was aged 59. He is now 61.

65 The judge accepted Y's plea of guilty at the earliest opportunity as an expression of contrition. He gave him a discount for this and for the utilitarian value of the plea. There was other evidence, which the judge accepted, of remorse. The judge took into account that Y would serve his sentence in special protection, the severity of the conditions there and their adverse effect. The judge accepted Dr Perica's evidence and the harmful effect of isolation upon Y. There have been many lock-downs in which Y has been confined to his cell for days at a time.

66 Y had no previous convictions. He described his involvement as the most stupid thing he has ever done in his life. He has accepted that what he has done was wrong. Y was a qualified agricultural engineer. The judge described him as an excellent worker. He had supported his wife and children and been a very good father. He has the support of his family. His main concern has not been for himself but for the safety and welfare of his family. For their sake and their safety he would not allow the children to come to court to support him or visit him in gaol although they wished to do so.

67 The judge accepted evidence testifying to the good works performed by Y, the community service rendered by him and his previous good character. It puzzled the judge and Dr B Westmore, consultant psychiatrist, why Y agreed to participate in the enterprise. Dr Westmore thought that Y was suffering from a moderate to severe adjustment disorder with depression of mood. Some features of anxiety were also present. Dr Westmore thought that the risks of re-offending were negligible. The judge agreed.

68 Y suffers from psoriasis of the scalp, dermatitis of the face and skin cancers. He needs a repeat colonoscopy. He was admitted to hospital in January 2001 for investigation of an internal bleed.

69 Dr Westmore wrote: "Adjustment disorders can be quite disabling and can impact significantly on a person's life. Where the stressors are of a chronic nature, depressions can sometimes develop into biological conditions and I note the loss of weight which would suggest at least some disturbances of his biological functioning."

70 Dr Westmore continued: "… incarceration is particularly difficult for this man in view of his age and the ongoing risk which incarceration represents for him and the absence of an antisocial personality disorder."

71 The judge stressed the large quantity of drugs packed by Y and subsequently imported, but stated that the quantity of drugs is not determinative of the ultimate sentence. The judge observed that involvement at any level in a drug importation attracts a significant sentence in the interests of deterrence and noted that the statutory maximum penalty was life imprisonment, the greatest penalty known to the criminal law.

72 The judge said that but for the assistance Y had given, he would have been sentenced to 12 years imprisonment with a non-parole period of 7 years. The judge said that if Y did not render the future assistance he had undertaken to give Y would have been sentenced to 6 years with a non-parole period of 3½ years These figures do not readily relate to a discount of 29 per cent for future continued assistance.

73 The Crown submitted that based on the objective circumstances and after applying s.16G the judge should have had a starting point of 18 years with a non-parole period of 12 years. It contended that that sentence should be reduced by about 30 per cent for assistance, plea of guilty and other subjective matters. That would result in a head sentence of 12 years with a non-parole period of 8 years. In the supplementary reasons I have rejected the submission that the discount ought to be 30 per cent and have held that the assessment made by the judge was open to him. If a discount of 58 per cent was applied to the figures suggested by the Crown the result would be a head sentence of 7 years 6 months (rounded down) and a non-parole period of 3 years 9 months (rounded down).

74 The sentence and non-parole period must not constitute an affront to community standards or insufficient punishment for the criminality involved allowing for the subjective factors including the assistance given to the authorities. Taking an overall view the least permissible sentence would be imprisonment for 7 years with a non-parole period of 4 years. Importance has to be attached to the severe conditions involved in serving a sentence in special protection and the adverse effect which that has. It is important that the head sentence sufficiently reflects the objective criminality. The Court should intervene and substitute a sentence of imprisonment of 7 years. Whether the Court should intervene and substitute a new non-parole period is a question of difficulty and one on which my mind has fluctuated. The sentence on Y dated from 9 January 2000 when he was taken into custody. The sentence hearing took place on 18 April 2001. Y has now served two years one month of the three year non-parole period. The question of double jeopardy is important especially for a person serving his sentence under the severe conditions of special protection. When these matters are combined with the matters to which Dr Westmore refers the Court should, on balance, exercise its discretion and not alter the non-parole period.

75 I propose the following orders in X's case as to each of the concurrent sentences: (a) Crown appeal allowed in part; head sentence of 7 years quashed. In lieu thereof X is sentenced to imprisonment for 10 years commencing on 9 January 2000 on each count.

(b) Crown appeal against non-parole period of 5 years dismissed on each count. 76 But for the assistance to be given subsequent to the sentencing by the sentencing judge the Court would have sentenced X to imprisonment for 13 years 3 months with a non-parole period of 7 years.

77 It is noted that some of the future assistance has already been given since the sentencing, that is, giving evidence at the committal.

78 I propose the following orders in Y's case as to each of the concurrent sentences: (a) Crown appeal allowed in part; head sentence of 5 years quashed. In lieu thereof Y is sentenced to imprisonment for a period of 7 years commencing on 9 January 2000 on each count.

(b) Crown appeal against non-parole period of 3 years dismissed on each count. 79 But for the assistance to be given subsequent to the sentencing by the sentencing judge the Court would have sentenced Y to imprisonment for 9 years 6 months with a non-parole period of 4 years 6 months.

80 Order that no material be published identifying or tending to identify X or Y.

81 Order that the Supplementary Reasons be placed in a sealed envelope within the Court Registry not to be opened save with the leave of a judge of the Court of Criminal Appeal and that the envelope be endorsed accordingly. A copy of the Supplementary Reasons is to be made available to the Commonwealth Director of Public Prosecutions and his nominated officers and his counsel, to the solicitor for X for perusal by his legal advisers including his counsel and X, and to the solicitor for Y for perusal by his legal advisers including his counsel and Y. They are not to be otherwise published or distributed except with the leave of a judge of the Court of Criminal Appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Judgment (74 paragraphs)

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