Crimes Act 1914 (Cth), s 16A, s 16G, s 19AA(1)

Customs Act 1901 (Cth), s 233B(1)(c)

Sentencing Act 1995 (WA), s 95

Application for leave to appeal against sentence granted

Non-parole period reduced from 8 years to 6 years and 8 months

Respondent : Commonwealth Director of Public Prosecutions

Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997

R v Anderson [1981] VicRp 17; [1981] VR 155

R v Dinic (1997) 149 ALR 488

R v Laurentiu (1992) 63 A Crim R 402

R v Oancea (1990) 51 A Crim R 141

R v Piercey [1971] VicRp 79; [1971] VR 647

R v Robertson (1989) 44 A Crim R 224

R v Storey [1998] 1 VR 359

1 KENNEDY ACJ: I have had the benefit of reading in draft the reasons to be published by Anderson J. I am fully in agreement with his Honour's reasons and with the orders proposed by him.

2 IPP J: I have read the reasons to be published by Anderson J. I am in agreement with those reasons and have nothing further to add.

3 ANDERSON J: The applicant was presented in this Court on 17 May 1999, together with one Punevski, on an indictment jointly charging them:

" ... that on the 1st day of April 1998 at Perth ... [they] without reasonable excuse, attempted to obtain possession of a prohibited import to which section 233B of the Customs Act 1901 applies which had been imported into Australia in contravention of that Act namely, narcotic goods consisting of a quantity of [ecstasy] being not less than the commercial quantity applicable to that narcotic substance, contrary to section 233B(1)(c) of that Act."

4 Both accused pleaded not guilty. The trial concluded on 28 May 1999 with verdicts of guilty against both. They were each sentenced to 13 years' imprisonment with an 8-year non-parole period.

5 Both appealed against their convictions and sentence. The applicant abandoned his appeal against conviction. Punevski's appeal against conviction was dismissed on 28 March 2000. His appeal against sentence was heard at the same time as his appeal against conviction. It was intended that the applicant's appeal against sentence would be heard immediately afterwards, by the same court. However, time did not permit and it was not possible to reconstitute that court to hear this appeal. In the result, this appeal has been heard by a court differently constituted.

6 It is not in dispute that the importation that is referred to in this indictment was one of four connected importations which took place contemporaneously involving a gang of four couriers.

7 A number of other people have been dealt with in respect of the importations. In order to put this particular case in its context, I will give a brief account of the wider operation and the various participants and the way in which they have been dealt with. As far as I can see, none of the facts about to be related are controversial. They are taken from the material presented to this Court during the hearing of this appeal

(including the record of sentencing hearings in the other cases) and from the uncontradicted evidence given at the applicant's trial.

8 As a result of an investigation conducted by the Australian Federal Police concerning the activities of a number of people, four persons were arrested at Perth International Airport on 30 March 1998. They were passengers on the same flight from Amsterdam via Kuala Lumpur. These persons were Linda Diefenbach, Jorg Lindke, Monica Jezowski and Peter Schubert. Each of them was wearing beneath their clothing a female girdle concealing socks containing large numbers of ecstasy tablets. Schubert was found to be in possession of 6,007 tablets containing 513 grams of pure ecstasy with a gross weight of 1,976 grams. Diefenbach was carrying 6,967 tablets containing 562.4 grams of pure ecstasy. Lindke was carrying 6,313 tablets containing 505.8 grams of pure ecstasy. Jezowski was carrying 6,007 tablets containing 472.1 grams of pure ecstasy. The total quantity involved in the importation was over 2 kilograms pure. The trafficable quantity of this drug is 0.5 grams and the commercial quantity is 500 grams.

9 The four "couriers" were taken to Australian Federal Police headquarters for interview. They gave different levels of co-operation, ranging from full and frank admissions by Schubert to no admissions at all by Diefenbach. Thereafter, they were separately dealt with. The courier with which this appeal is concerned is Schubert. He agreed to assist police. The next day, 31 March, the police took Schubert to the Mercure Hotel in Irwin Street, Perth, where he had a booking. They arranged for him to be booked into room 521 and what happened thereafter is recounted in detail in my judgment in Punevski's appeal against conviction (Punevski v The Queen [2000] WASCA 71). It is not necessary to go into as much detail in this appeal and the following is a shorter account of events, with its main focus being upon the activities of the applicant.

10 The applicant lived at Joondanna. At 10:53 am on 1 April 1998, he made contact by mobile phone with Punevski. About an hour later, the applicant arrived at the Mercure Hotel, where Schubert was, in the company of a man by the name of Abib Mustafa. The applicant and Mustafa remained in or near the hotel until about 12:15 pm. At about 12:15 pm, the applicant went up to room 521, Schubert's room, and knocked on the door. The knock was answered by a female police officer. The applicant asked for Schubert. The police officer, pretending to be the occupant of the room, told the applicant that, in effect, he had the wrong room. From then until shortly after 4 pm, the applicant was seen at various locations in the vicinity of the Mercure Hotel in the company of Punevski and Mustafa. They separated several times and came together and a number of telephone calls were made on their mobile phones and from a nearby pay phone. Most of the calls made from the pay phone were made by Mustafa and a number of them were made to Macedonia. Sometimes the men would speak to each other on their mobile phones whilst in quite close proximity. A number of the telephone calls which Mustafa made to Macedonia from the pay phone (just across the street from the Mercure Hotel) were made during the time that Mustafa was in company with the applicant and Punevski. For example, at about 2:35 pm, the three men went into the Black Swan cafe in Hay Street, which is near the Mercure Hotel and after a couple of minutes Mustafa walked to the phone booths and made four calls to Macedonia lasting from a few seconds to six minutes. He then rejoined the applicant and Punevski at the Black Swan cafe for a few minutes before going again to the phone booths and making another call to Macedonia lasting several minutes. After making that call, he rejoined the applicant and Punevski at the cafe. Shortly afterwards, Punevski made two calls from the same booth. These were made to the Mercure Hotel. He then rejoined the applicant and Mustafa. Shortly after that, Mustafa went to the phone booths and made another call to Macedonia lasting some five minutes. He then returned to the cafe where he rejoined the applicant and Punevski at their table. A few minutes later, he returned to the booths and made another call to Macedonia before rejoining the applicant and Punevski at their table.

11 The evidence is that at 4:04 pm the applicant left the table at the cafe and went to the booths and made a call to the Mercure Hotel lasting 58 seconds and he then crossed the street and sat at the table on the footpath outside the hotel. Schubert's evidence was that he received a call telling him to go downstairs to meet somebody in the hotel lobby. He was wired for sound by the police and entered the lobby shortly before 4:20 pm. At this time the applicant (who was seated at a table just outside) and Mustafa had a telephone conversation. Mustafa made this call to the applicant's mobile phone from the booths just across the street. Eventually, the applicant approached Schubert and according to Schubert he showed Schubert a cigarette packet with a number or numbers written on the inside. The evidence suggested this was an identification code. He asked if Schubert had something for him. Schubert fobbed him off by saying that he did have something, but could not give it to the applicant until "later". The applicant then met up with Mustafa at the head of the laneway running down behind the Mercure Hotel. During this time, the applicant was also in contact with Punevski by mobile phone. The three men continued to move about the streets around the Mercure Hotel, sometimes passing without acknowledging each other, and on other occasions meeting up and having short conversations.

12 At about 4:40 pm, after having a conversation with Mustafa, the applicant went into the Mercure Hotel and went up to room 802, which by this time was Schubert's room, and knocked. Schubert had not returned to the room and the knock was not answered, and the applicant left. A short time later, the applicant and Schubert met up in one of the bars attached to the Mercure Hotel known as the Topiary. At that time, Mustafa was also in the Topiary, but made no connection with the other two men. At about 5:20 pm, the applicant and Schubert went up to Schubert's room and there was a conversation which was recorded. They discussed the handing-over of the drugs. The substance of the exchanges was that the applicant was demanding that Schubert give him the drugs. While he was in the room, the applicant received several calls on his mobile phone from Mustafa. At about the same time, Mustafa made calls to Macedonia. Schubert continued to stall the applicant by telling him that he had hidden the "package" elsewhere and wanted to wait until dark to pick it up and that he would not hand it over "without money".

13 After leaving Schubert's room, the applicant met up with Mustafa at the corner of Hay and Irwin Streets and they were seen walking together, first one way and then the other, in Hay Street. At 5:52:48 pm the applicant made a call on his mobile phone to Punevski's mobile phone. Shortly afterwards, the three were seen to be once again together and conversing outside the Kings Hotel in Hay Street. Shortly after, they were observed to enter the Kings Hotel cafe and take up a table where they had coffee and talked until 6:05 pm, when Punevski left. The applicant and Mustafa were kept under observation. They remained in the area. Between 6:12 pm and 6:43 pm, there was a total of five telephone calls to Macedonia from the pay phone and both the applicant and Mustafa were sighted in Hay Street continuously throughout this period.

14 At 6:45:52 pm, the applicant made a call to Punevski's mobile phone and not long after Punevski, in a change of clothes, rejoined the applicant and Mustafa at the Kings Hotel cafe. At 6:52:25 pm, the applicant used his mobile phone to call Schubert in his room at the Mercure Hotel. The evidence is that the applicant instructed Schubert to be in the Topiary at 8 pm with the "package". The three men remained together until at about 7:15 pm when Mustafa went into the Topiary and took a table. Shortly after, the applicant came in and the two men spoke briefly and the applicant left. He went to a nearby municipal carpark, where he got into a vehicle which he then drove to a position on St George's Terrace, parking the vehicle at the foot of the lane which ran down behind the Mercure Hotel. The surveillance evidence is that he got out of the vehicle and looked up and down the Terrace continually before sitting on the steps of an office building near the vehicle. At 7:45:51 pm, he made a call on his mobile phone to Punevski's mobile phone. Ten minutes later, Punevski and the applicant were seen to be sitting together on the steps in St George's Terrace. Punevski had parked his vehicle in Irwin Street near the entrance to the Mercure Hotel.

15 At this time, Mustafa was in the Topiary. At about 8 pm, Schubert entered the Topiary and sat at Mustafa's table. A yellow plastic shopping bag was passed by Schubert to Mustafa and two packets of money were passed by Mustafa to Schubert. Mustafa then left and walked down the lane to St George's Terrace, where he joined the applicant and Punevski. Mustafa and the applicant got into the applicant's car. The applicant took the driver's seat. Punevski walked away towards his car. As the applicant commenced to drive his car from the scene, it was stopped by police. The applicant tried to drive away and there was a collision between the applicant's car and a police car. The two men were arrested. Punevski was also arrested. Two packets of unused small sealable "Snap Lock" plastic bags (exhibit 19) were found in the applicant's car, as well as the yellow shopping bag (exhibit 3(1)). It contained socks stuffed with substituted material (exhibit 3).

16 Both the applicant and Punevski were sentenced together on 11 June 1999 and, as has been noted, they received identical sentences. Set out below are her Honour's sentencing remarks:

"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."

17 Each of the four couriers ultimately pleaded guilty and all had been sentenced before the above sentences were handed down. Schubert received 5 years with a 21/2-year minimum. In his case, the learned sentencing Judge (not Wheeler J) took into account his plea of guilty and his very considerable level of co-operation, observing that were it not for those factors the sentence would have been 9 years with a 41/2-year minimum. Diefenbach was treated as the lead courier. There was evidence that she had recruited the other three couriers and supervised their activities, handled the travel arrangements, attended to the accommodation details and so on. She received 12 years with a non-parole period of 6 years. Jezowski received 9 years with a non-parole period of 4 years. Lindke received 9 years with a non-parole period of 41/2 years. On appeal, Diefenbach's sentence was reduced to 10 years with a non-parole period of 5 years, mainly because of disparity between her sentence and the sentences imposed on the other three couriers. (It was held by the Court of Criminal Appeal that there was an unjustifiable disparity, notwithstanding "her greater criminality and culpability with respect to the offence" : Diefenbach v The Queen [1999] WASCA 4 per Malcolm CJ at 15.)

18 Mustafa, who also pleaded guilty, was sentenced to 12 years' imprisonment with a non-parole period of 7 years.

"The learned sentencing Judge erred in the exercise of her sentencing discretion in that she: -

1. Erroneously attributed a greater level of culpability to the Applicant by the mere fact of being a collector cf a courier.

2. Failed to and/or properly examine the facts to ascertain the Applicant's true level of culpability cf of Mustafa and accordingly, imposing a sentence which leaves the Applicant with a justifiable and legitimate sense of grievance.

3. Failed to give any allowance for co-operation given by the Applicant in the course of the trial ie reducing it by a series of concessions and admissions to that of a single issue of knowledge.

4. Failed to give sufficient weight to Applicant's personal circumstances.

5. Imposed a sentence which is disproportionate to the Applicant's role in the crime.

6. Imposed a sentence that in all the circumstances is manifestly excessive."

20 Grounds 1, 2 and 5 can be dealt with together. The main complaint which gives rise to these grounds is that her Honour "categorised" the applicant as a "collector" and went about the sentencing process as if there was a specific tariff for that particular category of drug traffickers. It was submitted that her Honour was influenced by nomenclature rather than by matters of substance.

21 It is true that her Honour did unambiguously classify the applicant as a "collector" and that she then proceeded to explain why collectors should be treated in the sentencing process as having a greater level of culpability than "couriers". However, I am not persuaded that her Honour arrived at this sentence simply on the basis that there was a tariff for collectors and that the applicant should, therefore, receive the tariff with little regard for his actual role. Her Honour did examine the facts and did make an assessment of the applicant's true level of culpability in the light of what he actually did. If anything, her Honour's classification of the applicant as a collector was a classification which favoured the applicant. It assumed in the applicant's favour a matter of mitigation as to which there was not really any evidence - namely, that the applicant was not a principal, but was an intermediary between the courier and the principal. For all that appears from the evidence, the applicant was, in fact, the principal, or one of them.

22 As all of the judgments in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 make clear, descriptive phrases in common use in this area of the criminal law, such as "courier", "collector", "principal", "medium scale distributor", "low level distributor", "middle man" and so on do not identify legal categories of offenders. In the view of the majority in Olbrich, it is not even a matter of practical necessity for the sentencing court to place the accused in one or other such category for the purpose of sentencing, although it will usually be helpful to do so if it can be done. As the majority recognised, it will often not be possible to do so. In their joint judgment Gleeson CJ, Gaudron, Hayne and Callinan JJ said at par [13] and par [14]:

"We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.

It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate."

23 In this case, the applicant was charged with the offence of attempting to possess a commercial quantity of ecstasy. The facts known to the court do not reveal that, in respect to that offence, the applicant acted otherwise than as a principal. The objective facts are that he acted in concert with Mustafa and Punevski to try to get hold of the drugs from Schubert. It is clear that Schubert was nothing more than a courier. The nature of the exchanges between the applicant and Schubert reveal that as between them Schubert was not in any position of authority over the applicant. To the contrary, it was the applicant who was making demands on Schubert. There is no evidence of any wider distribution network within which the applicant acted as an underling of some kind. There is no evidence of any chain extending beyond the applicant in which the applicant was no more than a link.

24 Accepting that the transaction involving this particular batch of tablets - those brought in by Schubert - was part of a larger transaction involving the three other couriers, there is no evidence of an organisational structure in which there was anyone higher up than Mustafa, Punevski and the applicant. The evidence certainly does not permit the court to draw any worthwhile distinction between the relative culpability of Mustafa, Punevski and the applicant and I would reject the submission made on behalf of the applicant that such a distinction should have been made in favour of the applicant. The impossibility of making any such distinction with any degree of confidence is shown by the sentencing submissions made on behalf of each of them. In this Court, it was submitted on behalf of the applicant that the proper inference should be that it was Mustafa who was the overall controller of the wider enterprise. It was submitted that Mustafa had "specifically come to Australia to arrange the collection of the drugs from Schubert" and that the applicant acted out of friendship merely to assist Mustafa to do so without expectation of any gain. On behalf of the applicant, Mr Richter went so far as to say " ... Mustafa is the boss and he's the boss for this operation but [the applicant] in this sort of scheme of things - his culpability can be less than that of a courier ... "

25 Yet, when Mustafa was sentenced on his plea of guilty before Miller J it was stated by his counsel that he had come to Australia for an unrelated purpose which had nothing to do with drugs and it was only once he was here that he was recruited by Punevski and the applicant to help them get hold of the drugs. And he was sentenced on that basis. In the light of the submissions made to him on Mustafa's behalf, Miller J said in sentencing Mustafa:

"I accept that you were here recruited by Punevski and/or Ruvenovski to collect the drugs from Schubert."

26 One element of Mustafa's activities which is said to prove that he was "the boss", as Mr Richter called him, is that it was he who made the calls to Macedonia. I do not see why that should elevate him above the applicant. It is consistent with Mustafa being a link man or a messenger, or a facilitator of some kind, with the role of ensuring that the applicant and Punevski got the drugs. Mustafa was observed to make these calls whilst in the company of the applicant and Punevski or one or other of them. For all that is known, he made the calls at their request or on their behalf.

27 Another matter relied on by the applicant to show that Mustafa had a superior role (or that the applicant had a role which was inferior to that of Mustafa) was that Mustafa was the one who actually received the parcel from Schubert. This is of no significance. It was the applicant who made the first unsuccessful attempts to get the goods from Schubert. Once the parcel was handed to Mustafa in the Topiary restaurant, Mustafa went straight to where Punevski and the applicant were waiting in St George's Terrace and got into the applicant's car.

28 It is a case which neatly illustrates the impossibility of knowing the truth in this kind of crime as to the respective roles of each of the individuals. All the sentencing court can do is look at the objective facts, treat them as providing the prima facie information regarding the defendant's level of culpability and sentence accordingly, unless the prima facie position is displaced by other material.

29 The facts demonstrated beyond reasonable doubt that the applicant was actively engaged together with Mustafa and Punevski over a period of many hours on 1 April 1998 in attempting to get physical possession from Schubert of a commercial quantity of prohibited imports in the form of illicit drugs. Prima facie, he was to be sentenced on that basis; ie, as a principal, if one uses the language of dichotomy. No doubt, if the Crown wished to show that there were additional aggravating circumstances, it would be for the Crown to satisfy the court of the existence of those aggravating circumstances - such as, for example, that the applicant was, in truth, the protagonist and that Mustafa and Punevski were his recruits. No such evidence was sought to be led and the applicant was not sentenced on that basis. On the other hand, if the applicant wished to rely on some matter in mitigation, such as that his was truly a minor role, or that he was to receive no material benefit, or that he was only assisting a friend, etcetera, then it was he who bore the burden of positively persuading the sentencing court of that or those matters: The Queen v Olbrich par [24] and par [26].

30 The applicant's evidence was that he knew nothing of any prohibited importation and throughout the whole of the day in question he was acting on Mustafa's directions, not knowing what it was that Mustafa was trying to get from Schubert. That story obviously was rejected by the jury. The applicant did not give evidence in mitigation of his sentence. In these circumstances, the applicant cannot complain that he was classified as a collector. As I have said, the classification was, if anything, unduly favourable to the applicant.

32 Ground 3 pleads that her Honour failed to give any allowance for co-operation given by the applicant in the course of the trial, especially inasmuch as the trial was reduced by a series of concessions and admissions "to that of a single issue of knowledge". I do not think the concessions were of much value to the Crown or significantly shortened the trial. They were concessions of formal matters, such as the chemistry, weights, continuity, telephone records and the like. These were matters which plainly ought to have been admitted. The surveillance evidence, the telephone evidence, Schubert's evidence and the evidence obtained from recordings made by devices worn by Schubert while he was speaking with the applicant was evidence which was incontrovertible and left little or no room for contest, save on the issue of knowledge. Still, the trial lasted many days. On behalf of the applicant, it was submitted that this was because the prosecutor called evidence, such as the surveillance evidence, which, in view of the concessions offered by the defence, it was not necessary to call. I do not accept this submission. In my opinion, it was entirely appropriate for the surveillance evidence to be fully led. The detailed evidence of the applicant's behaviour during the seven and a half hours in question was relevant to his guilty knowledge as well as to his overall culpability. It was reasonable to lead the evidence in order to reveal the applicant's true role in the transaction, as to which there was, of course, no concession.

33 Grounds 4 and 6 can be dealt with together. As amplified in argument, they plead that the sentence was manifestly excessive on three main grounds: the head sentence of 13 years was well outside the sentence usually imposed in Australia for this offence; the non-parole period was too long; and, no or inadequate allowance was made for the personal mitigating matters, in particular, the applicant's depressive illness.

34 Mr Richter referred us to sentencing statistics from New South Wales and Victoria, to show that in those States, sentences for this kind of offence are much lower than the applicant's sentence. Statistical information can be helpful, but statistics cannot be taken too far: R v Oliver (1982) 7 A Crim R 174 per Street CJ at 177. Local factors may be relevant to sentencing, including (in the case of sentences for federal offences) different State remission systems, as to which see Crimes Act s 16G. Mr Richter referred to this section and made a submission to the effect that different State remission systems meant that for the purposes of true comparison, sentences imposed in Western Australia had to be notionally scaled up. He said that the applicant's sentence was equivalent to a sentence of 191/2 years in Victoria. I am afraid I did not understand the basis of this rather startling submission. Section 16G is in the following terms:

"If a federal sentence is to be served in a prison of State or Territory where State or Territory 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."

35 It is not the case that the sentence imposed on the applicant is " ... not subject to remission or reduction ... " within the meaning of s 16G. The prima facie effect of s 95(1) of the Sentencing Act 1995 (WA) and s 19AA of the Crimes Act is that the applicant will be discharged after serving two-thirds of his head sentence, on account of the one-third remission provided for in s 95(1). In this sense, a nominal sentence in Western Australia of 13 years is a real sentence of a little more than 81/2 years. According to Mr Richter, sentences in New South Wales and Victoria are not subject to remission. Hence, they are required to be adjusted in accordance with s 16G. That can only mean that they are required to be adjusted downwards. See Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 at 383 - 385 for a discussion as to the process of adjustment under s 16G in New South Wales. It is therefore not surprising that, by reference only to statistics, sentences in those two States for this kind of offence would appear to be lower than the general pattern of sentencing for the same crimes in this State.

36 The other important point to be made is that sentencing ranges do not necessarily stand still. In the case of drug trafficking, sentencing ranges may change as knowledge grows about the effects of a particular kind of drug and they may change with changes in community experiences concerning that type of drug. For example, it is only in comparatively recent times that drugs in the amphetamine group have ceased to be regarded as middle of the range drugs. Some of the drugs in the amphetamine group, in particular methylamphetamine, are now beginning to be equated with top of the range drugs, such as cocaine and heroin. This case does not involve methylamphetamine. We are here concerned with MDMA or ecstasy, but ecstasy is in the amphetamine group and it is now coming to be treated in this Court as a highly dangerous drug of addiction. In recent times, the courts have expressed a view that sentences hitherto imposed for offences involving ecstasy have been ineffective as a general deterrent and that the time has come to impose stiffer sentences. See particularly R v Darwell (1997) 94 A Crim R 35, but also see the earlier case of R v Bellissimo (1996) 84 A Crim R 465. In Darwell at 40, Malcolm CJ said:

"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 with 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 deterrence, 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 effects. 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."

37 See also Heryadi v The Queen (1998) 19 WAR 383; Roberts v The Queen [1999] WASCA 273 (unreported) in which the sentiments expressed in Bellissimo and Darwell were reiterated.

38 Speaking for myself, in the four years or so that have passed since Bellissimo, I have had no reason to change what I said. Trafficking in amphetamine continues to be rife, continues to involve young, even very young, members of the community and continues to be destructive of families and to have tragic consequences for individuals. There remains a high level of community concern about it and rightly so.

39 The maximum sentence for the offence committed by the applicant is life imprisonment. Looking at the offence in isolation, it was a substantial transaction involving the importation into this country of over 6,000 tablets. If the importation by Schubert is seen to be part of a larger importation involving three other couriers, then it was in the aggregate an enterprise of major proportions. In its totality, it was a very big importation of illicit drugs, involving a high level of planning and in which at least seven people where concerned. Obviously, more people were involved than that, in light of the mysterious telephone calls which Mustafa was making to Macedonia on the day in question.

40 The applicant cannot be sentenced on the basis that he committed any other offence than the offence of attempting to obtain possession of the quantity of ecstasy imported by Schubert. He cannot be sentenced on the basis that he was knowingly concerned in the importations by Diefenbach, Jezowski and Lindke: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, especially per Gibbs CJ at 389; Diefenbach v The Queen [1999] WASCA 4 per Malcolm CJ at [27], [28]. However, the offence which the applicant himself committed involved a high degree of criminal conduct, even when looked at separately from the course of conduct comprising the total enterprise. The "attempt" with which the applicant was charged lasted some seven and a half hours and involved three people acting in concert. Having regard for the enormous amounts of money that are notoriously involved in the illicit trafficking of amphetamines, including ecstasy, it would be naive to think that anything other than long custodial terms are likely to have a deterrent effect. The learned sentencing Judge did not stipulate her starting-point, but a starting-point of 14 years, or thereabouts, would not have been too high. It has been said often enough in this Court that in cases of this kind where the major sentencing consideration is deterrence, matters personal to an offender cannot have much mitigatory effect. This is especially so where it is apparent that there was a considerable amount of planning involved and where the offence involved a persistent course of conduct of some duration. Whatever his personal circumstances may be, the fact is that such a person makes a deliberate choice - a measured choice - to engage in heinous conduct which is calculated to do great harm to a large number of people and for which a maximum penalty of life imprisonment is prescribed by parliament.

41 In my opinion, her Honour's sentencing remarks reveal that she took full account of all the matters which she was required by s 16A of the Crimes Act to consider and I am quite unable to say that a head sentence of 13 years was manifestly excessive. Whilst it may be at the top end of the range of sentences imposed in the past for attempting to possess this quantity of this amphetamine, it was within the range of a proper sentencing discretion, especially in light of what has been said in recent times about the need to firm up sentences in this area.

42 I am, however, of the opinion that the non-parole period is too high. Bearing in mind that if no non-parole period at all had been fixed the applicant would have been entitled pursuant to s 95 of the Sentencing Act and s 19AA of the Crimes Act to be discharged after serving two-thirds of the term, the fixing of a non-parole period of 8 years does seem too long. It is about 62 per cent of the total sentence. Because of the remission of sentence effected by s 95 of the Sentencing Act, the non-parole period should be appreciably less than two-thirds of the head sentence. Otherwise, the objectives of parole may not be achieved. Once it has been determined that a prisoner should have the benefit of parole, it would seem to follow that in fixing the non-parole period regard should be had to the real head sentence - the head sentence after statutory remission - so as to ensure that the benefit of parole is real. In this case, those considerations would indicate a non-parole period of less than 8 years. The non-parole period in this case may also be compared with the non-parole periods fixed in each of the other cases. In Schubert's case, the non-parole period was 50 per cent of the head sentence. In Diefenbach's case, after appeal, the non-parole period was 50 per cent of the head sentence. Lindke's non-parole period was 50 per cent of the head sentence. Jezowski's non-parole period was a little less than 45 per cent of the head sentence. Even in the case of Mustafa, who received the longest non-parole period, it was less than 60 per cent of the head sentence.

43 There is, therefore, a disparity with the non-parole periods in most of the other cases and this, too, persuades me that we ought to intervene to reduce the non-parole period from 8 years to 6 years and 8 months, or from about 62 per cent to a little more than 50 per cent of the head sentence. Although it is still a slightly higher proportion of the head sentence than was fixed in most of the other cases, it is a somewhat lower proportion of the head sentence than in Mustafa's case and would produce a parole period of about 2 years. I think this is the best that can be done to iron out the disparities and I would vary the sentence to that extent.