"WHEELER J: ... in sentencing Mr Ruvinovski and Mr Punevski section 16A of the Crimes Act refers me to a number of factors to take into account so far as they are relevant. I have had regard to that section. The factors most relevant to these two offenders are their character and antecedents, family circumstances and, of course, the nature and circumstances of the particular offences.
Each of you, Mr Punevski and Mr Ruvinovski, is 50 years of age with no significant previous convictions. Although two cannabis related offences appear on Mr Ruvinovski's record, the nature of the penalties suggest that they should not be considered significant for present purposes. Both of you have tendered references to the court which show you are considered, within your own community, to be of good character and that you make a contribution to the life of that community.
You, Mr Punevski, are divorced, have four children, three of whom are adults, you have worked all your life as a painter and builder and have employed a number of people over the years, making a contribution to the community in that way too, until 2 and a half years ago when you sustained a back injury.
You, Mr Ruvinovski, are married with two children, one of them quite young. Your mother-in-law lives in the same duplex as your family. She isn't well and your wife cares for her, with some assistance from you. Your wife too has had periods of illness recently. Plainly it will place a significant burden on her to cope with your mother in-law, an adolescent boy and a young girl without you. You have suffered for many years from what appears to be a severe depressive illness and from a variety of other medical conditions. Whether as a symptom or part of the cause of that depression your gambling has led to significant fluctuations in the family's financial circumstances. It is to your credit that despite your own problems there are people prepared to tell the court of your willingness to assist them.
Although authority in relation to offences of this type clearly establishes that personal mitigating circumstances are of limited weight in relation to offences such as these, you are entitled to have all the factors that I have mentioned taken into account in respect of each of you. Of most importance, however, is the nature of the offence.
Dealing with it in general terms first, the offence of which each of you was convicted is a serious offence for which parliament has prescribed the maximum penalty of life imprisonment. That penalty reflects the importance of general deterrence in relation to offences of this kind. That penalty is attracted by reason of there being a commercial quantity of the drug involved and I note that the amount in question here only marginally exceeded the commercial quantity but even in respect of a lesser quantity however the maximum penalty would have been 25 years, so the amount seems to me important but nevertheless the fact that it only marginally exceeded the commercial quantity still makes it a very serious offence.
You were to be collectors of the drug, the first to obtain it from the courier Schubert. Collectors have been said to be generally one step up in the hierarchy from couriers for sentencing purposes. It is necessary, I think, to analyse why that is the case. There seem to me to be three reasons. First, were it not for the collector it is likely that the chain of distribution within Australia would be broken or disrupted, that is, the collector is in closer proximity to the evil at which the legislation is primarily aimed, which is the distribution within Australia of drugs. That reason is applicable to each of you, as to any other collector.
Also, the experience in the courts is usually, I think, that the courier has little or no initiative or role in planning and little or no flexibility. In the usual case the courier carries the drug in a way devised by others on a nominated flight or in a nominated way and simply waits then for contact and by contrast there is more flexibility, more initiative, more planning, generally involved in making contact, being the person who gets in touch with and collects from the courier, and I think the conditions of this case demonstrate that. There were a number of changes from what seems to have been the expected pattern, with Mr Schubert being moved from one room to another, with him saying perhaps unexpected things about the availability of the drug, nevertheless it seems that collectively you, Mr Punevski, Mr Ruvinovski and Mr Mustafa changed and devised plans as need be to cope with those circumstances.
Third, however, and most importantly the collector generally has a greater organisational role, greater knowledge and greater control than does the courier and is therefore more culpable. Issue was taken with whether that circumstance applies in relation to each of you. I think it's fair to say that we know very little of your precise role in the plan to bring this drug into Australia and to distribute it in due course.
We know Schubert came to Australia with the drugs concealed on his body. We know that he was intercepted and other packages substituted for those drugs, and that he was installed in the Mercure Hotel. We know that each of you, Mr Punevski and Mr Ruvinovski as well as Mustafa who had recently come from the United States apparently for that purpose, made contact with the Mercure Hotel.
Punevski, you telephoned the hotel and we still have no particular explanation of the role which that telephone call played but nevertheless, the contact was made. Ruvinovski, you were in direct contact with Schubert and directly asked him for the parcel. We know the parcel was eventually collected by Mustafa from Schubert on 1 April and that numerous contacts were made with Mustafa by each of you during the course of the day over a period of some 7 hours.
It seems to me impossible that you did not each of you discuss and vary as necessary the plans for collection while you were with Mustafa or in contact with Mustafa for that considerable period of time. In relation to you, Mr Punevski, it was said by your counsel effectively that all you did was stand about and make telephone calls. While the jury was satisfied that you had a common purpose with Ruvinovski and Mustafa of obtaining the drugs, there was nothing to show that you had any knowledge of where it had come from or what was to occur once possession of the drugs was taken.
In relation to you, Mr Ruvinovski, the submission was of a similar nature by your counsel; that you were to hand over the drug to Mustafa and that was your sole role. In your case of course the tape recorded conversation in the hotel room with Schubert shows that you were prepared to put pressure on Schubert to hand over the drugs, and having listened to that conversation twice, I am satisfied beyond reasonable doubt that your turn was not that of a person with very little idea of the nature of the transaction.
However, although you cooperated closely with Mustafa to ensure the drugs were collected, the only person in respect of whom there is evidence of a coordinating role in the wider plan is Mustafa, in the sense that he made a number of phone calls, many of them overseas, during the course of that day and his conversation with Schubert which was also tape recorded refers to others in a manner suggesting that he was in contact with and knew of the role of some of those others.
It seems to me inappropriate and the authorities warn against drawing too fine a distinction between the roles of the two of you, Ruvinovski and Punevski, and indeed drawing too fine a distinction between your roles and the role of Mustafa when the full facts are not and are never likely to be known.
In relation to each of you, although Mr Ruvinovski's role was the more active it appears to me that while you both knowingly attempted to put the drugs into circulation within Australia, in the sense of collecting them from Schubert for that purpose, there is no evidence that either of you was in charge of organising the detail of that distribution. You of course were residents here and Mustafa was not but it is always possible that there were others with whom Mustafa would have been later in contact if not arrested.
The circumstances of the offence in my view require that each of your sentences should not greatly exceed that of a courier. It is appropriate I think for the reasons I have explained that it should somewhat exceed the usual sentence imposed on the average courier but because of the circumstances of this case it is not possible I think to attribute to you any greater organisational role in the wider plan than that which I have described.
Of course the couriers sentenced in this case received significant credit for the pleas of guilty which will not be available to you, so I speak of couriers in the abstract and not the particular couriers in this case. Although it seems on the evidence available that your role, Mr Ruvinovski, was somewhat more active than that of Punevski, for the reasons I have mentioned. Your personal circumstances are marginally more mitigating.
In the end I think it is not appropriate to distinguish between you ... In respect of each of you, I sentence you to a period of 13 years' imprisonment with a minimum of 8 years, and that sentence will be backdated by a period of 4 months to 11 February. So the minimum period of imprisonment will be 8 years."