Customs Act 1901 (Cth) s 233B, s 235(2)

Financial Transaction Reports Act 1988 (Cth)

Respondent : Commonwealth Director of Public Prosecutions

Respondent : Commonwealth Director of Public Prosecutions

R v Doan, unreported; CCA SCt of NSW; Library No 60101; 27 September 1996

R v Fawcett (1983) 5 Cr App R (S) 158

R v Kane [1975] VicRp 64; [1975] VR 658

R v Morris [1951] 1 KB 394

R v Portolesi (1988) 48 SASR 217

R v Roberts and Roberts, unreported; DCt of WA; Library No D980058; 11 March 1997

Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1

The two applications for leave to appeal against sentence

1 These reasons concern two applications for leave to appeal against sentence brought by Arthur Reginald Roberts (to whom I shall refer as "Arthur") and Andrew Hope Roberts (to whom I shall refer as "Andrew").

2 Arthur and Andrew (who are brothers) each pleaded guilty to an indictment issued out of the District Court which charged that:

"[B]etween the 1st day of January 1993 and the 30th day of April 1995 at Perth and elsewhere in and out of the State of Western Australia [Andrew] and [Arthur] conspired with each other and with David Leitz and divers other persons to import into Australia prohibited imports to which s 233B of the Customs Act 1901 applied namely, narcotic goods consisting of a quantity of 3,4-Methylenedioxymethamphetamine, commonly known as ecstasy or MDMA being not less than the trafficable quantity applicable to 3,4-Methylenedioxymethamphetamine, contrary to paragraph 233B(1)(cb) of the Customs Act 1901."

3 The learned sentencing Judge sentenced Arthur to a term of imprisonment of 15 years with a non-parole period of 8 years. His Honour sentenced Andrew to 11 years' imprisonment with a non-parole period of 5 years 6 months. The reason for the discrepancy in sentences was that Andrew was involved to a lesser degree than Arthur in the conspiracy.

4 Arthur raised two grounds of appeal. These asserted, firstly, that the learned sentencing Judge erred in not giving Arthur a discount for his co-operation with the authorities and, secondly, that the sentence of 15 years' imprisonment was manifestly excessive in the light of the circumstances of the offence and the offender.

5 The grounds of appeal relating to Andrew fall into three broad categories. Firstly, it was said that a number of findings made by the learned Judge, on which Andrew's sentence was based, were erroneous and led to a miscarriage of justice. Secondly, it was said that the learned sentencing Judge erred in applying the parity principle when determining the sentence applicable to Andrew. Thirdly, it was said that the sentence of 11 years' imprisonment was manifestly excessive.

6 The conspiracy of which Arthur and Andrew were convicted was to import trafficable quantities of ecstasy tablets into Australia. It resulted in the importation of two separate quantities of ecstasy tablets into Australia. A third importation was proposed but had not been implemented by the time the two offenders were arrested.

7 Arthur participated in the conspiracy for approximately two years, being the whole of its duration (from 1993 to 1995), whereas Andrew became actively involved from the time of the proposed third importation, and participated for a period of about six months. Another conspirator, who joined in the conspiracy from time to time, was David Leitz, a resident of the United Kingdom.

8 In January 1993 Arthur travelled to the United Kingdom and there met Leitz, who was a supplier of ecstasy tablets. Arthur negotiated with Leitz the terms and price of a planned importation of some thousands of ecstasy tablets. This was the first importation that took place during November 1993. The ecstasy tablets were brought into Australia in a specially constructed collapsible suitcase, which had been purchased in Amsterdam. The tablets were packed in layers in a specially designed rack inserted into the base of the suitcase. The rack was wrapped in plastic film and carbon paper so as to defeat an x-ray examination.

9 The second importation occurred in January 1994, and was again arranged by Arthur in conjunction with Leitz. Again, thousands of ecstasy tablets were stored in a suitcase which contained a special rack like the one used in the earlier importation. The suitcase was packed in Amsterdam and carried by Leitz. On his arrival in Australia, he was searched by Customs officials who were already suspicious about his activities. The importation was duly executed, however, as the authorities were unable to detect the carefully concealed tablets. Arthur then arranged for two of his associates to transfer the sum of $138,865 (being the proceeds of the importation, or part of them) into a number of overseas accounts nominated by Leitz. The transfers were made in amounts under $10,000 so that scrutiny under the Financial Transaction Reports Act 1988 (Cth) might be avoided. The associates used false names and addresses in conducting the transactions.

10 Later in 1994, Arthur and Leitz, together with Andrew, attempted to organise a third importation of ecstasy tablets for the end of that year. Arthur asked Andrew, who resided mainly in London and Amsterdam, to contact Leitz in Europe to make the necessary arrangements, but various difficulties resulted in delay. Leitz was apprehensive about transferring the funds involved in the transactions and about acting as courier because he had been searched on the previous journey. In July 1994, Arthur informed his distributors of the delay, and proceeded to make contact with Andrew and Leitz in order to finalise a delivery date.

11 Meanwhile, in November 1994, a task force of the federal police installed telephone intercepts and listening devices in telephones known to be used by Arthur and Andrew. Transcripts of phone calls made by the offenders revealed that regular contact was still being made between Arthur and Andrew in relation to the planned importation. They agreed that Andrew would continue to liaise with Leitz in Europe, and would eventually construct and pack the suitcase to be used in the importation. He would be paid a fee amounting to thousands of dollars, although the exact amount was unknown.

12 By January 1995, the importation had still not been finalised and Arthur decided that he might have to travel overseas himself to secure a supply of ecstasy. This possibility was strengthened when Arthur contacted Leitz on 10 February 1995, after several unsuccessful attempts, and was told that Leitz had "better contacts at the moment". Telephone conversations were recorded in which Arthur and Andrew discussed the suitability of various associates to act as couriers in the planned importation, and Arthur discussed the issue with the associates themselves on a number of occasions.

13 In early March 1995, Andrew was finally able to confirm with Arthur that the earliest delivery date would be early May 1995. On 6 March 1995, however, Arthur learned that his telephone service might have been monitored. This caused him considerable concern but, following discussions between them after Andrew's arrival in Australia on 13 March 1996, they decided to continue with the planned operation.

14 On 2 May 1995, however, before any importation could actually be executed, Arthur and Andrew, along with their associates, were arrested. On 20 May 1995 the task force searched a storage unit at Fort Knox in Fremantle which had been leased by Arthur since June 1992. They found $281,000 hidden in two stereo speakers. A subsequent search of Arthur's residence in Dawesville revealed $79,000 in cash that was also hidden in stereo speakers. The moneys found were the proceeds of successful importations of ecstasy by Arthur, and were forfeited to the Commonwealth.

The discount for co-operation with the authorities

15 Before dealing with this issue in detail, it is necessary to refer to an order made by the trial Judge that:

"[P]ublication of all proceedings will be allowed other than any evidence or material that may in any way indicate or suggest that the offenders are cooperating with the authorities."

At the outset of argument on the appeal, Mr Shirrefs, counsel for Arthur, moved for an order that:

"The publication of this appeal will be allowed other than any material that may in any way indicate or suggest that the applicant, Arthur Roberts, has been co-operating with the authorities."

Counsel for the respondent did not oppose the grant of such an order. In my opinion, the order sought should be granted and everything under this heading ("the discount for co-operation with the authorities") that follows should be governed by the order in question.

The manifestly excessive ground - the discount for the plea of guilty

23 On 24 September 1998, Arthur formally pleaded guilty to the charge of conspiracy of which he was convicted. This was more than three years after he was first arrested and charged. In considering the discount to be given for Arthur's plea, the learned sentencing Judge noted that the plea was made "... at the last possible moment in circumstances where the case against you was clearly very strong ...". His Honour allowed a discount of one year in respect of the plea and, additionally, for the fact that Arthur had spent two years and nine months in prison on remand. It is apparent, therefore, that the discount for the plea alone was less than 12 months.

24 Mr Shirrefs submitted that the sentencing Judge erred in finding that the plea was made at the last possible moment. The plea, he argued, should have been regarded as made on 6 March 1997, when Arthur first offered to plead guilty to the charge of which he was convicted. This argument requires some explanation concerning the negotiations that ensued between the prosecution and Arthur prior to the commencement of the trial.

25 Arthur was initially charged with six offences relating to the events outlined above. The first count alleged a conspiracy to import a commercial quantity of ecstasy into Australia contrary to s 233B of the Customs Act. The remaining charges concerned Arthur's possession of the cash proceeds of the first two importations, his involvement in the transfer of $138,865 to Leitz after the second importation, and his role as a supplier of ecstasy between January 1992 and April 1994.

26 On 9 August 1995, both offenders elected to have a preliminary hearing. On 27 August 1996, however, Arthur attempted to withdraw his election, but this was not possible. The preliminary hearing went ahead on 14 October 1996, with the result that both were committed for trial. On 14 January 1997 they were arraigned in the District Court on an indictment dated 13 January 1997. Both applicants pleaded not guilty to count 1 (that is, the conspiracy to import a commercial quantity of ecstasy), and Arthur also pleaded not guilty to the other five counts on the indictment.

27 The learned sentencing Judge was informed by counsel for Arthur that on 6 March 1997, Arthur's solicitor commenced negotiations with the prosecution and suggested "under the negotiation process for a plea of guilty [sic]" for Arthur. Counsel told his Honour that further negotiations ensued and on 12 May 1997 the prosecution wrote a letter "more or less accepting the plea as it is today". Counsel proceeded to tell the learned Judge:

"I have seen the letter and I would submit to your Honour that, in effect, it may well have been the case that as things stood on 12 May 1997 a plea of guilty could have been entered to this matter as it stands right now. The difficulty with that, your Honour, is that [Arthur] was not represented, no-one had actually looked at the brief in relation to his matter, no-one had looked at the intercepts, the transcripts, or the like and in fact no-one does look at it until I'm instructed to act for him on 14 August 1998. So for 15 months [Arthur] is unrepresented."

28 It is to be noted that during the 15-month period to which counsel referred Arthur and Andrew made a number of applications to stay the prosecution on the basis of the principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. These were eventually dismissed. The Legal Aid Commission eventually managed to negotiate funding through the moneys that had been seized. In March 1998 a trial commencement date of 6 October 1998 was set, and by mid-August 1998 Arthur was again legally represented. As mentioned, on 24 September 1998 Arthur pleaded guilty to the conspiracy charge of which he was convicted. That indictment alleged a conspiracy to import a trafficable quantity of ecstasy, not a commercial quantity as had originally been alleged.

29 During the course of argument in the present proceedings, there was considerable debate as to whether, upon an examination of the correspondence that passed between Arthur and Arthur's solicitors, the offer made on 6 March 1997 was subject to conditions which were later abandoned, and whether the prosecution's letter of 12 May 1997 should properly be construed as an acceptance of the offer of 6 March 1997. None of this correspondence was before the learned sentencing Judge, and in my view it should not now influence this Court. The issue falls to be determined by reference to the evidence before his Honour.

30 The most significant evidentiary material placed before the learned sentencing Judge in regard to this question was the observation by counsel for Arthur that "it may well have been the case that as things stood on 12 May 1997 a plea of guilty could have been entered to this matter as it stands right now". This statement, in my view, was an acceptance by counsel for Arthur, that, in the light of the letter written by the prosecution on 12 May 1997, a plea of guilty could have been entered in the same way that it was entered on 24 September 1998. The reason put by counsel to the learned Judge for the lateness of the plea was that in May 1997 Arthur did not have legal representation, and this position endured for a considerable time thereafter. That this was his Honour's understanding of the submission being made to him by counsel for Arthur is apparent from his response which was that, despite the absence of legal representation, Arthur "would have known whether he was guilty or not". The learned Judge followed this comment with the question, "Why go to the length of seeking a Dietrich hearing if you know you are guilty?" His Honour then clarified this question by saying, "He is certainly entitled to [seek legal advice as to whether or not he has a defence] but in terms of whether or not he should get - to the extent of which he gets a credit for his late ... plea of guilty, I mean, these are relevant matters, aren't they?" Counsel for Arthur replied:

"It certainly is, your Honour. Delay is a relevant factor and certainly if [Arthur] had said, 'I'm guilty,' from the outset, had a fast-track plea, he would get maximum credit. I'm not submitting to your Honour that this is the case. What I am submitting to your Honour is it is not the case where a man has been represented, had received advice and notwithstanding that advice had continued on with a plea of not guilty. Wherever you have a lay person, some allowance must be made for the fact that this person is not represented, has not been given the benefit of advice, and especially in cases such as this where the maximum penalty here is 25 years' imprisonment."

31 In my view, on the evidence before his Honour, the learned Judge was justified in concluding that on 12 May 1997 the prosecution had made an offer to Arthur to amend the charges on the indictment so that they would reflect the charge to which he eventually pleaded guilty on 24 September 1998. That offer was not accepted until September 1998. In these circumstances his Honour, in my opinion, was entitled to regard the plea of guilty as being made at the last moment.

32 In Atholwood v R [1999] WASCA 256 I made some observations concerning the approach that a court should adopt where the prosecution has charged an offender with several counts and after a process of negotiation the offender pleads guilty to only some of them and the prosecution withdraws the others. In my view, those observations have no application in the present case in the light of the fact that the prosecution offered in May 1997 to make the amendments to the indictment (that were eventually made) and Arthur did not accept that offer until September 1998, immediately prior to the commencement of the trial.

33 Even on this basis, Arthur was entitled to some discount for his plea. The trial would have been a particularly long one, and even though the evidence against Arthur was overwhelming, he was entitled to credit for avoiding the expense to the public, inconvenience to witnesses and delay to other cases through his plea of guilty. A bare plea of guilty, without remorse, is a mitigating factor, but the discount allowed will not be large where the prosecution's case is strong (as it was against Arthur); see, for example Simpson v The Queen (1993) 68 Crim R 439, R v Doyle (1994) 71 A Crim R 360. As mentioned in Atholwood v R, the timing of the plea and the circumstances of the offence in general will also have a bearing on the amount by which sentence may be reduced (see also R v Holder [1983] 3 NSWLR 245; R v Bulger [1990] 2 Qd R 559). The extent of any reduction is of course within the discretion of the sentencing Judge.

34 Mr Shirrefs submitted that the learned Judge failed to recognise the difficulties that confronted Arthur whilst being unrepresented and the fact that the plea of guilty was part of the negotiations with respect to other counts in the indictment. It is apparent from his Honour's remarks, however, that these matters were indeed taken into account by him, although he accorded them little weight. In the light of the fact that counsel for Arthur conceded that it was open to Arthur to have pleaded guilty in May 1997 to the count to which he subsequently pleaded guilty, I think his Honour was entitled to come to the conclusion to which he did.

35 I accept that the period of one year (which includes the allowance for the delay while Arthur was on remand) was somewhat low. Nevertheless, I consider that it was within the learned Judge's discretion. I would therefore not uphold the argument raised in regard to this issue.

The manifestly excessive ground - delay, remorse, rehabilitation and related issues

36 The learned Judge, in passing sentence, observed that there was no evidence of contrition on the part of Arthur. In this context, he made reference to the omission on Arthur's part to make "any real effort to bring these proceedings to an early conclusion" and the fact that Arthur for some three and a half years since his arrest has "simply been prolonging the inevitable". If the learned Judge was thereby suggesting that Arthur's sentence should be increased because of the delay, then he would have been in error (and Mr Shirrefs submitted that this was indeed the case). In my view, however, this is not what his Honour was saying. The learned Judge was merely referring to Arthur's part in delaying proceedings as evidence of his lack of contrition. There was a factual basis for this finding. The several attempts by Arthur to stave off the prosecution by resorting to Dietrich applications to enable him to defend the case against him are not consistent with sincere contrition.

37 Mr Shirrefs relied on delay to mount a further argument. He submitted that the learned Judge failed to give Arthur sufficient credit for the delay that had occurred between arrest and sentence. It was submitted that his Honour provided a marginal reduction for this factor and I accept that this was indeed the case. A major cause of the delay was Arthur's inability to finance his legal representation and the Dietrich applications that he made. As mentioned, there is no question of penalising Arthur for these applications. On the other hand, I think it unrealistic to suggest that he is entitled to a reduction because of stress due to the delays resulting from them. I do not accept that his Honour made any error in according minimal weight to the issue of delay.

38 Arthur appears to have been a model prisoner and has made every effort to improve himself while in prison. It is arguable that he is on the road to some kind of rehabilitation, although in the light of his past conduct I am sceptical about this. There was evidence from which the learned Judge might have drawn an inference that Arthur experienced some remorse. Nothing in the materials before this Court, however, demonstrates a spontaneity or sincerity illustrative of real repentance.

39 Mr Shirrefs drew attention to the testimonials relating to the applicant's character and the absence of any prior convictions on his part. The fact is, however, that matters of this kind pale into insignificance when one has regard to the harm to the community brought about by Arthur's criminal activity. As I mention more fully below, Arthur consciously, deliberately, with considerable planning and ingenuity, went to great lengths to ensure that a trafficable quantity of ecstasy could be imported into Australia for his own commercial gain. In those circumstances, matters such as remorse, rehabilitation, and personal antecedents have little mitigatory force: see for example Darwell v The Queen (1997) 94 A Crim R 35, Fazari v R, unreported; CCA SCt of WA; Library No 960651; 14 November 1996, Heryadi v The Queen (1998) 19 WAR 383, and Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998.

40 Mr Shirrefs referred to the observation made by the learned sentencing Judge that:

"Because ecstasy is a relatively new drug on the local scene it has taken time for the Court to fully appreciate its deleterious effects. For this reason there has been a trend in recent years to firm up the sentences for offences involving ecstasy and the Court of Criminal Appeal has approved this approach."

The learned Judge made particular reference to Darwell in this regard.

41 Mr Shirrefs submitted that the moral culpability of Arthur has to be assessed by reference to the deleterious effects of ecstasy known at the time he committed the offence, and not in the light of subsequent knowledge, and he should be sentenced on the basis that the earlier criteria applied.

42 In my view, the learned Judge's reference to Darwell was intended only to explain one of the factors that led him to impose the sentence that he did, namely, the firming up of sentences for offences involving ecstasy. His Honour was not making any direct comment as to the criminal culpability of Arthur. In my view, it is perfectly appropriate for Judges who sentence drug offenders to have regard to the prevailing range of sentences laid down in judgments of this Court, even when the offences were committed when the range was lower. This is particularly the case when general deterrence is a major factor in the sentence being passed. Pronouncements by the courts in regard to appropriate sentencing ranges do not take effect as if they are statutes that do not have retrospective force.

The manifestly excessive ground - the appropriate starting point

43 According to the agreed statement of facts "thousands of MDMA tablets" were imported by way of the first importation. Thousands of tablets were imported in the course of the second importation. There was evidence which indicated that the quantity of tablets intended to be imported in the third importation was of the same order. The learned sentencing Judge observed:

"I am satisfied that the two importation [sic] actually effected and the third proposed importation each involved many thousands of tablets and involved quantities of ecstasy at the high end of the trafficable range."

44 During the course of argument a member of the Court asked how many tablets would make up a trafficable amount. According to Mr Dane QC, senior counsel for Andrew, during the investigation certain of the imported tablets were found. The purity of those tablets was 58 per cent. Each tablet weighed 0.15 grams. He said, "If all were the same, what was proposed in the entirety of the three importations, upon those two bases, the maximum of 499 grams before one gets into the commercial, would equate to, at that purity, a total maximum of 5,736 tablets." Mr Dane made it clear that these calculations were subject to a number of contingencies.

45 There can be no doubt that the evidence supported the finding by his Honour that each importation involved quantities of ecstasy at the high end of the trafficable range. The strong likelihood is that each importation involved, at the least, quantities very close to the maximum trafficable quantity.

46 A trafficable quantity of ecstasy is between 0.50 grams to 499 grams. The evidence reveals that Arthur, by way of the two importations that were successful, imported in the aggregate, considerably more than a trafficable quantity. He was, however, charged only with a conspiracy to import a trafficable quantity and he can be sentenced only for that. The point to be made, nevertheless, is that on the evidence before the learned Judge, the conspiracy in which Arthur was involved concerned the successful importation into Australia of not less than 499 grams of ecstasy, that is, the maximum trafficable quantity. It is also to be borne in mind that, as the learned Judge found:

"The proceeds of these importations were and were expected to be substantial and in this regard the $360,000 in cash found represented only part of the proceeds of sale."

47 By s 235(2)(d)(i) of the Customs Act, the maximum sentence for the offence of which Arthur was convicted is a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both. This provides the benchmark for the sentence to be imposed on Arthur.

48 There was a time when ecstasy was regarded as a middle of the range drug: see Robertson v The Queen (1989) 44 A Crim R 224. That is no longer the case, as is apparent from the following remarks of Malcolm CJ in Darwell:

"In my opinion, having regard to the increasing prevalence of the use of MDMA or ecstasy, which is one of the drugs in the amphetamines group, and taking into account the increasing prevalence of the use of amphetamines generally, including methylamphetamine, the courts have tended to firm up the sentences for the sale or supply of such drugs or their possession within intent to sell or supply ...

It is important to note that methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If not equated to heroin and cocaine, it is close enough to those drugs to be regarded as in the same category: Calder (unreported, District Court, WA, Hammond CJDC, 7 September 1995); Bellissimo (1996) 84 A Crim R 465; Krakouer (1996) 16 WAR 1 at 33 - 35 per Anderson J (with whom Rowland and Franklyn JJ agreed); and Calder (unreported, Supreme Court, WA, No 960534, 11 September 1996 per Malcolm CJ).

In Bellissimo, in a passage cited in my judgment in Calder, [unreported, CCA SCt of WA No 960534, 11 September 1996] (with which Franklyn and Owen JJ agreed) Anderson J said:

'The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrents, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused widespread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent.'

While this case is concerned with MDMA or ecstasy and not methylamphetamine, what Anderson J said has application to amphetamines generally and ecstasy in particular. In my opinion it may now be appropriate to reconsider the classification of MDMA or ecstasy in the light of additional evidence regarding its deleterious effect. In the meantime, there is every justification for 'firming up' on the sentences to be imposed beyond the sentence which was imposed in the present case."

49 In R v Raz, unreported; CCA SCt of NSW, BC 9201407; 17 December 1992, Hunt CJ at CL (with whom Badgery-Parker J agreed) stated:

"It is always relevant in the sentencing process to know just where a person guilty of importing drugs into Australia, or of being knowingly concerned in their importation, stands in relation to the organisation for which he commits that offence. He may have been recruited either here or overseas to bring the drugs into Australia for reward on one occasion only, and to hand them over to someone here. Such a person is the 'bare or mere courier', and that is at one end of the spectrum of culpability. At the other end is the principal of the organisation, or other senior person, who recruited the courier or who organised the supply of the drugs overseas or the distribution locally. In between there are many levels. But all are relevant in assessing the culpability of the person who is guilty of one or the other of those offences, and thus the sentence which is appropriate to that culpability."

50 In the present case there can be no doubt that Arthur was a principal of the organisation. He was the senior person, or one of them, and he was the mastermind, or one of them, of the drug importation enterprise. It is rare indeed for a person in that position to be apprehended and convicted. Where the principal is convicted, a sentence very close to the maximum must be expected, particularly where the quantity of drugs imported into Australia is, or is close to the maximum quantity applicable to the offence in question.

51 Apart from the fact that Arthur was one of the heads of the organisation, and the quantity of ecstasy imported into Australia was at least the maximum trafficable amount, there were other factors that indicated that a substantial sentence was required. These factors concern the professional nature of the enterprise and the degree of sophistication and entrepreneurial endeavour involved. Great care was taken in the packing of the drugs to avoid detection, and further precautions were exercised in the transfer of the proceeds. As principal, Arthur spent much time and effort in organising the fine detail of the operation. He initiated the necessary contacts and arranged the involvement of others in his schemes. His motive for doing so was the substantial commercial gain which he stood to obtain.

52 Arthur was deeply involved in heinous criminal conduct at the highest level. In my opinion, with respect to the learned sentencing Judge, the starting-point adopted by his Honour as regards Arthur was far too low. If due regard were to be given to the intention of Parliament, as reflected by the maximum penalty, the starting-point would have to be very close to the maximum, if not the maximum itself. In my view, the omission to commence the sentencing exercise at an appropriate level has led to a sentence being imposed on Arthur that does not adequately reflect the degree of criminal conduct in which he was involved. It goes without saying, therefore, that I am of the view that the argument that the sentence in fact imposed on Arthur was manifestly excessive is entirely without substance.

53 In the light of my conclusion, I should say that even were I to have upheld the arguments advanced on Arthur's behalf in regard to all the other issues to which I have referred above, I consider that an appropriate sentence would still have been substantially in excess of 15 years. I think Arthur was fortunate indeed to receive the sentence that he did.

Erroneous findings - Andrew's position in the enterprise

54 It is to be emphasised that it was accepted by the prosecution that Andrew was only involved in the third importation. His criminal culpability is to be judged and limited by his participation to this extent only. What is significant was his position and rank in the conspiracy. The learned Judge found that he was a principal. As I understood Mr Dane, this finding was challenged, but without much enthusiasm.

55 The evidence establishes that Andrew had a close relationship with Leitz, as close as that between Arthur and Leitz. The transcription of a telephone intercept of a conversation between Arthur and Andrew concerns a discussion between them about a courier visiting Andrew in England. The learned Judge inferred from this that Andrew was "higher up the ladder than the courier" and that Andrew was the person who was to supply her with the ecstasy tablets once he had secured them from Leitz. In my view this inference was justified. Another transcript of a telephone intercept between Arthur and Andrew indicates that both were more or less at an equal level in the hierarchy. In this conversation Andrew offered to put the proceeds of the proposed third importation "into the account in Singapore". An additional function of Andrew's was to prepare and pack the suitcase for importation. By reason of Andrew's arrest he was not able to do this.

56 In my opinion, on the above facts, it was open to the learned Judge to sentence Andrew on the basis that he was a co-principal with Arthur in regard to the proposed third importation.

Erroneous findings - Andrew's involvement in other drug dealings

57 Mr Dane submitted that the learned Judge made several remarks which suggested that he was sentencing Andrew for the part he played in the other two importations and in other drug dealings. Of course, that would be impermissible. In my view, however, while the learned Judge did mention matters involving Andrew's participation in other drug dealings, he did so merely to support his finding that Andrew was a co-principal with Arthur in the conspiracy in respect of which he pleaded guilty. I do not think that comments of this kind were of significance to the sentence imposed.

58 Mr Dane complained about an observation by the learned Judge that Andrew (together with Arthur), was a major supplier of ecstasy tablets to the Perth market. His Honour erred in making this statement. In my view, however, it was a remark made in passing and had little or no effect on the sentence that was imposed.

Erroneous findings - the quantity of ecstasy, the subject of the proposed importation

59 The learned Judge found that the proposed third importation was to involve "many thousands of tablets and involve quantities of ecstasy at the high end of the trafficable range". This was disputed by Mr Dane. The telephone intercept transcripts, however, indicate that the proposed third importation was to be on a similar scale to the earlier importations and in my view the finding made by the learned Judge was justified.

60 Mr Dane drew attention to the fact that the indictment charged Arthur with conspiring to import into Australia not less than a trafficable quantity of ecstasy. He said that, as there were two importations involving thousands of tablets, each of these, in effect, had to be deducted from the maximum trafficable quantity in order to determine the quantity of ecstasy which Andrew had conspired to bring into Australia by the third importation. He submitted that the third importation would have to be regarded as being roughly one third of the description "not less than the trafficable quantity".

61 I do not accept this submission. It loses sight of the fact that the indictment charged Arthur and Andrew with conspiring to import "not less than the trafficable quantity". As I have mentioned, the evidence revealed that more than a trafficable quantity was imported by Arthur. This is the inevitable inference to be drawn from the quantity of tablets imported in each of the first two importations. The prosecution was not precluded from proving that the amount of tablets imported exceeded the trafficable quantity. As only one parcel of tablets was brought in on each occasion, the prosecution was obliged to lead evidence of the number of tablets in each such parcel. The inference from the evidence was that Arthur had conspired to import more than the trafficable quantity.

62 Of course, neither offender could be sentenced on the basis that the conspiracy concerned more than a trafficable quantity, but that is not to say that the learned Judge was required to ignore the facts as proved. Those facts demonstrated that the third importation was intended to be (at least approximately) not less than the maximum trafficable quantity.

63 The argument advanced on Andrew's behalf based on the parity principle was put this way: It was pointed out that the prosecution drafted count 1 on the indictment so as to cover three separate importations. Arthur was concerned in all three whilst Andrew was concerned only in the last. The first two importations were completed while the third importation was not effected. As a matter of sentencing law, the sentences imposed upon Arthur and Andrew should reflect the respective levels of their criminality. Because of the lesser role of Andrew, in the sense that he was only involved in the prospective importation, the differences in the sentences imposed upon each should be greater than the four years resulting from the sentences in fact imposed by the learned Judge.

64 For the purposes of sentencing Arthur, the conspiracy relating to the three importations is to be regarded as a conspiracy to import the maximum trafficable quantity involving the two successful importations and the intended but frustrated third importation. For the purposes of sentencing Andrew, the conspiracy is to be regarded as being only to effect the third importation (which was intended to bring in to Australia the maximum trafficable quantity), in circumstances under which the importation was not achieved. It follows, therefore, that Arthur's involvement in the first two (successfully completed) importations means that his criminal culpability was substantially more than that of Andrew's: Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1. The difference in the criminal culpability of the two offenders in this respect is also reflected by the significantly shorter period of time Andrew participated in the conspiracy.

65 In reply, Mr Hall referred to the fact that the applicant had a prior conviction for the importation of a trafficable quantity of narcotics. As is pointed out in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 477, the antecedent criminal history of an offender is a factor which is relevant in determining the sentence to be imposed. Further, Mr Hall drew attention to Andrew's failure to acknowledge the full extent of his culpability. The learned Judge accepted that there was a difference between Arthur and Andrew in this respect.

66 In Lowe v the Queen [1984] HCA 46; (1984) 154 CLR 606 Mason J said (at 613):

"[T]he justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.

... what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."

67 In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Dawson and Gaudron JJ said at 301:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them ... In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error ... Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principal, as identified and expounded in Lowe v The Queen ..., recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance" ... If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options."

See also Mortimer v R, unreported; CCA SCt of WA; Library No 970526; 14 October 1997.

68 In my view, having regard to all the circumstances and the sentences that were in fact imposed, I consider that Andrew does have a justifiable sense of grievance by reason of the relatively small difference between the sentence imposed on him and that imposed on Arthur.

69 That is not to say that I consider that the sentence imposed on Andrew was excessive in proportion to the criminality of his conduct. On the contrary, I think that that sentence, looked at on its own, was lenient. The problem, as I have indicated, is that it is out of proportion to the sentence imposed on Arthur, having regard to the respective criminality of each. The difficulty, I think, arises from the fact, as I have indicated, that the sentence imposed on Arthur was far too low. Had his Honour recognised that the starting point in regard to Arthur was the maximum penalty or very close to the maximum, the sentence in fact imposed on Andrew could not have engendered a justifiable sense of grievance. But, in the circumstances, I consider that Andrew's argument based on parity must succeed.

70 Accordingly, I would set aside the sentence imposed on Andrew, and in lieu thereof I would substitute a sentence of 8 years' imprisonment with a non-parole period of 4 years' imprisonment. In so doing, I take into account the exponential effect of the longer sentence on Arthur - see Robinson v R, unreported; CCA SCt of WA; Library No 980587; 9 October 1998; Jarvis v The Queen, (1993) 20 WAR 201. I would also make the confidentiality order to which I have referred above.

71 WALLWORK J: The facts and grounds of appeal are set out in the reasons of Justice Ipp and I will not repeat them except as is necessary.

72 As his Honour says, Mr Arthur Roberts (who is referred to as "Arthur" in the reasons) pleaded guilty on 24 September 1998 to a charge of conspiracy to import ecstasy into Australia. The learned sentencing Judge in his sentencing remarks said that the plea was made "...at the last possible moment in circumstances where the case against you was clearly very strong...." His Honour allowed a reduction of 1 year's imprisonment from what he thought was the appropriate sentence to allow for the plea of guilty and the fact that Arthur had spent 2 years 9 months in prison on remand. His Honour Justice Ipp notes that it is apparent that the discount for the plea alone was less than 12 months.

73 It was argued on this appeal that the reduction in the sentence for the plea of guilty should have been greater and that the plea of guilty should have been regarded as having been made on 6 March 1997. That was when Arthur first offered to plead guilty to the charge of which he was convicted. That submission involves a consideration of the fact that he had initially been charged with other offences which were later not proceeded with. The charges which ultimately were not proceeded with concerned possession of the cash proceeds of the first two importations, the appellant's involvement in the transfer of the sum of $138,865.00 to Mr Leitz after the second importation and his alleged role as a supplier of ecstasy between January 1992 and April 1994.

74 The indictment to which the applicant pleaded guilty continued a charge that he was a party to a conspiracy to import into Australia not less than a trafficable quantity of ecstasy - not a commercial quantity as had originally been alleged.

75 It had been urged on the learned sentencing Judge that some allowance should be made for the fact that the applicant had not had legal advice for a considerable period before he eventually pleaded guilty. Assuming, as Ipp J does, that the learned Judge was justified in concluding that on 12 May 1997 the prosecutor had made an offer to Arthur to amend the indictment so that it would reflect the charge to which he ultimately pleaded guilty on 24 September 1998, and that that offer was not accepted until September 1998, one question is whether his Honour was entitled to regard the plea of guilty as being made "at the last possible moment in circumstances where the case against you was clearly very strong ...".

76 I agree with Ipp J that it is apparent from the learned sentencing Judge's remarks that the difficulties which confronted Arthur whilst he was unrepresented and the fact that the plea of guilty was the culmination of negotiations with respect to other counts in the indictment, were accorded little weight.

77 It is significant that the basis on which the applicant ultimately pleaded guilty was quite different from that on which he had been originally charged. His plea of guilty to the lesser charge concerning the trafficable quantity was in satisfaction of all the charges against him.

78 Concerning the reduction in the number of charges to which Arthur pleaded guilty, I refer to a recent decision of Atholwood v The Queen [1999] WASCA 256, at par 10 - 12 where Ipp J had this to say:

"Where the prosecution has charged an offender with several counts and after a process of negotiation the offender pleads guilty to only some of them and the prosecution withdraws the others, all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled. It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts with which he is charged to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.

In the present case I think that the particular circumstances surrounding the making of the plea of guilty were such that a greater discount should have been accorded to the appellant by reason of that plea. The fact is that the appellant pleaded guilty to the offence of which he was convicted as soon as he was informed that it was the only charge he would be required to face. Counsel for the prosecution conceded that the plea of guilty was entered into after the appellant "probably had first ever received something that approached sensible advice in this matter". In my view, it is unrealistic to suggest that the appellant should have pleaded guilty to the charge of cultivating cannabis (of which he was convicted) at a stage when he was facing two other like charges which were subsequently withdrawn. The forensic disadvantages of such a course are obvious and one can well understand the appellant maintaining a plea of not guilty to all counts (until withdrawal occurred), despite personally acknowledging full responsibility for his criminal conduct in regard to one of them and being properly remorseful in regard thereto.

In these circumstances, in my view, the appellant was entitled to a greater discount for his plea of guilty than that accorded to him by her Honour."

79 In this case, the applicant was arrested on 7 May 1995. He was indicted and arraigned in the District Court on 14 January 1997 on an indictment containing six counts. On 6 March 1997 his then solicitor wrote to the Commonwealth Director of Public Prosecutions offering a plea of guilty to one count of a lesser conspiracy than he was charged with, in full satisfaction of all the charges. In effect that offer was accepted on 12 May 1997 but the proposed agreement did not come to fruition until September 1998. That was due to a number of factors, the details of which Ipp J has related in his reasons for judgment. The most important of those factors was said by the applicant's counsel to be that the applicant was not legally represented between the time the DPP offered the compromise in May 1997 and when he obtained legal representation in mid-August 1998.

80 At the hearing before the learned sentencing Judge the applicant's counsel made the following submission:

"Delay is a relevant factor and certainly if Mr Arthur Reginald Roberts had said, 'I'm guilty,' from the outset, had a fast-track plea, he would get maximum credit. I'm not submitting to your Honour that this is the case. What I am submitting to your Honour is, it is not the case where a man has been represented, had received advice and notwithstanding that advice had continued on with a plea of not guilty. Wherever you have a lay person, some allowance must be made for the fact that this person is not represented, has not been given the benefit of advice, and especially in cases such as this where the maximum penalty here is 25 years imprisonment."

81 The applicant's proposed plea of guilty was communicated to the learned Judge on 14 September 1998 before his plea in court on 24 September 1998.

82 The applicant pleaded guilty to a charge of being a party to a conspiracy to import not less than a trafficable quantity of ecstasy on 24 September 1998. The original charge of being a party to conspiracy had concerned the more serious charge of a conspiracy to import a commercial quantity of the drug. The other five charges were not proceeded with.

83 In my view in all the circumstances the learned Judge in this case should have given a greater discount for the plea of guilty than he did. The significance of the withdrawal of the other charges and the down-grading of the conspiracy charge should have been recognised. It was not simply a case of a plea of guilty "... at the last possible moment in circumstances where the case against you was clearly very strong...." Further, a lengthy trial with its attendant great expense was also avoided.

84 I would reduce the sentence of 15 years imprisonment which was imposed on Mr Arthur Roberts by the learned Judge by 2 years to a sentence of 13 years' imprisonment to allow for the plea of guilty and the aspects involved with the negotiations for the plea to a lesser charge. I would fix the minimum term before eligibility for parole at 6.5 years imprisonment.

85 The applicant "Andrew" was recruited into the conspiracy in April 1994 when he was requested to get in touch with Mr Leitz. He was arrested in May 1995.

86 The submissions on his behalf included one that during the term of the conspiracy he had made no progress whatsoever in carrying out the conspiracy. It was submitted that on the authority of Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1, he should not be punished for anything more than he actually did, that is, entering the conspiracy and his actions pursuant to it.

87 In Savvas, Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 9:

"In assessing what Gleeson CJ described as 'the degree of criminality involved in the appellant's participation in the conspiracy' R v Savvas (No 2) (1991) 58 A Crim R 174 at 177, Hunt J was entitled to have regard to the part the appellant played. A permissible, perhaps the only, way in which his Honour could do that was by considering the number of importations and the supplies of heroin in which the appellant was involved."

88 The learned sentencing Judge in this case said that essentially the applicant's role had been to liaise with Mr Leitz in obtaining the ecstasy and to pack the tablets into the suitcase or suitcases for the purpose of the proposed third importation.

89 It was submitted for Andrew that 11 years' imprisonment, with a minimum of 5-1/2 years' imprisonment, was manifestly excessive for his part in the conspiracy. Counsel put it that the applicant was entitled to a sentence which reflected only what he had done. That is, his entering into the conspiracy and what he did to carry it out.

90 It was submitted that what Andrew had done was join the conspiracy and communicate with Mr Leitz. The next role was to pack the case when called upon. However he had never got to that point. There was approximately a year when he had not progressed with his part in the conspiracy. It was submitted that Mr Leitz had been asked to produce the drug in April 1994. The applicant had embarked on the conspiracy and had repeated the request in April 1995. The conspiracy had not progressed. There had not been any tablets imported into Australia due to his efforts.

91 Ground 2 of the applicant's appeal was abandoned.

92 Ground 3 concerned a comparison of the sentence Andrew received with that which was imposed upon his brother Arthur, who had completed two prior successful importations.

93 Arthur Roberts received a sentence of 15 years' imprisonment for being involved in the conspiracy and two successful importations of large numbers of tablets, plus his part in the third "frustrated" importation. Andrew had participated in a "frustrated" third importation.

94 It was not submitted for Andrew that the sentence for the conspiracy should be divided into three equal parts. It was however submitted that the offence of the conspiracy and the frustrated third importation, should not have attracted an 11 year sentence when the successful "two times importer" Arthur, had received a total of 15 years' imprisonment for his part in two earlier importations, plus being involved in the third one which had not eventuated.

95 Concerning the amount of drug with respect to which Andrew could be sentenced, it is my view that for sentencing purposes the whole conspiracy could not involve a quantity of the drug which would exceed the maximum amount of a trafficable quantity. I do not agree that the third importation could be treated as being near the maximum trafficable quantity. The whole conspiracy was limited by that ceiling. That is a quantity - less than a commercial quantity of the drug. That was the basis of the compromise by the prosecution. The first two importations had been completed before Andrew joined the conspiracy. The third importation involving Andrew was not achieved.

96 I agree that the quantity of drugs involved was but one of the factors to be taken into account in determining the relative seriousness of Andrew's offence. However, there was also the aspect that Andrew had participated in the conspiracy for a significantly shorter period of time than Arthur.

97 For the above reasons I agree with Ipp J, that Andrew would have a justifiable sense of grievance by reason of the difference between the sentence imposed on him and that imposed on Arthur. In the light of my views on what Arthur's sentence should have been, I would therefore reduce Andrew's sentence from the term of 11 years' imprisonment which was imposed on him to a sentence of 7 years' imprisonment. I would order that he be eligible for parole after 3-1/2 years. The difference between Arthur's sentence, which I think should be 13 years' imprisonment and Andrew's sentence of 7 years' imprisonment, in my view, would reflect the differences in the criminality involved in their respective offences.

98 WHITE J: I have read the reasons to be published by the Hon Ipp J. I agree with the disposition of the applications proposed by his Honour and, subject to what follows in relation to Andrew's application, with his Honour's reasons.

99 Despite originally intending to allege against the applicants a conspiracy to import not less than a commercial quantity of the drug, the Commonwealth agreed to accept a plea from them of guilty to the lesser charge of conspiring to import not less than a trafficable quantity of the drug. Logically, as it seems to me, that agreement results in the need to treat the total conspiracy for all purposes as one to import no more than 499 grams of the drug, all told. On that basis, it seems to me that evidence that, in fact, the intention was to import more than a trafficable quantity of the drug would be irrelevant and, therefore, inadmissible. It is, I think, clear that the intention should be taken to be that a total of 499 grams of ecstasy, that is, the maximum quantity falling within the definition of a trafficable quantity, would be imported and no less than such maximum.

100 On that basis, I agree with Ipp J that, in relation to Arthur, the starting-point for the assessment of an appropriate sentence should have been much nearer the maximum penalty prescribed than was adopted by the learned sentencing Judge. For that reason, I consider that the submission to the effect that a greater discount than 1 year should have been allowed to Arthur for his plea of guilty loses force. In any event, while that discount was comparatively small, I do not consider that the learned sentencing Judge's discretion miscarried to an extent that it should be interfered with on appeal.

101 As Ipp J has pointed out, the telephone transcripts indicate that the third proposed importation was to be on a similar scale to the earlier importations. Accordingly, I would accept Mr Dane QC's submission that the third proposed importation should be considered as being roughly one-third of the total; namely, 499 grams. However, it does not seem to me that that fact could reasonably lead to a sentence to be imposed on Andrew which was only one-third that which was imposed on Arthur. It is not a mathematical operation.

102 I agree that the sentence imposed on Andrew should be reduced to the extent proposed by Ipp J.