Kardoulias v R - [2005] NSWCCA 456

No judgment structure available for this case.

CITATION:
Kardoulias and Andres v Regina [2005] NSWCCA 456

HEARING DATE(S): 11 August 2005

JUDGMENT DATE:

23 December 2005

JUDGMENT OF:
Simpson J at 1; Johnson J at 2; Rothman J at 136

DECISION:
Refer to paragraph 135 of judgment.

CATCHWORDS:
SENTENCING - conspiracy to import prohibited drug (heroin) - conspiracy to import prohibited drug (ecstasy) - appeal against severity - alleged errors in factual findings and sentences said to be manifestly excessive - no error established and sentences held not to be manifestly excessive - Crown appeals against sentences - Kardoulias' sentence held not to be manifestly inadequate - Andres' sentences held to be manifestly inadequate - Andres resentenced and sentences increased.

LEGISLATION CITED:

Customs Act 1901 (Cth)
Criminal Appeal Act 1912
Crimes Act 1914 (Cth)

CASES CITED:
R v Kardoulias [2005] NSWCCA 150
R v Mas Rivadavia and Ors (2004) 149 A Crim R 1; [2004] NSWCCA 284
Pearce v The Queen (1998) 194 CLR 610
R v Stanbouli (2003) 141 A Crim R 531
House v The King (1936) 55 CLR 499
R v Khouzame [2000] NSWCCA 505
R v Merritt (2004) 59 NSWLR 557
The Queen v Olbrich [1999] 199 CLR 270
R v Wong (1999) 48 NSWLR 340
R v Kain [2004] NSWCCA 143
R v A [2004] NSWCCA 292
R v Pham [2005] NSWCCA 94
R v Majors (1991) 27 NSWLR 264
R v Salameh (1991) 55 A Crim R 384
R v Studenikin (2004) 60 NSWLR 1
R v Kevenaar (2004) 148 A Crim R 155
R v Dujeu (2004) 146 A Crim R 121
Postiglione v The Queen [1995-1996] 189 CLR 295
Lowe v The Queen (1984) 154 CLR 606
Jones v The Queen (1993) 67 ALJR 376
R v Morgan (1993) 70 A Crim R 368
R v F (2002) 132 A Crim R 308
R v George (2004) 149 A Crim R 38
R v Araya [2005] NSWCCA 283
R v Schofield [2003] NSWCCA 3
R v Bimahendali (1999) 109 A Crim R 355
Pearce v The Queen (1998) 194 CLR 610

PARTIES:
Spiros Kardoulias (Applicant/Respondent)
Rafael Leonardo Andres (Applicant/Respondent)
Regina (Appellant/Respondent)

FILE NUMBER(S):
CCA 2004/1873; 2004/1948; 2004/2030; 2005/383

COUNSEL:
Mr P Boulten SC (for Spiros Kardoulias)
Mr I McLachlan (for Rafael Leonardo Andres)
Mr G Bellew (for the Crown)

SOLICITORS:
Hardin Law (for Spiros Kardoulias)
Watsons (for Rafael Leonardo Andres)
Commonwealth Director of Public Prosecutions ( for the Crown)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0047 (Spiros Kardoulias)
03/11/1106 (Rafael Leonardo Andres)

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

2004/1873
2005/383
2004/1948
2004/2030

SIMPSON J
JOHNSON J
ROTHMAN J
23 December 2005

Spiros KARDOULIAS v REGINA

Rafael Leonardo ANDRES v REGINA

REGINA v Spiros KARDOULIAS

REGINA v Rafael Leonardo ANDRES

Judgment

1 SIMPSON J: I agree with Johnson J.

2 JOHNSON J: These appeals arise out of the conviction and sentence of Spiros Kardoulias (one count – heroin) and Rafael Leonardo Andres (two counts – heroin and ecstasy) with respect to charges of conspiracy to import into Australia prohibited imports to which s.233B of the Customs Act 1901 (Cth) applied. In each case, there is an application for leave to appeal against sentence under s.5(1)(c) Criminal Appeal Act 1912 by Mr Kardoulias and Mr Andres and also a Crown appeal under s.5D of that Act upon the ground that the sentence imposed was manifestly inadequate.

3 To permit an understanding of the present proceedings before this Court, it is necessary to explain the history of the proceedings in the District Court, and an earlier Crown appeal to this Court concerning certain co-offenders.

The Heroin Conspiracy

4 On 13 August 2003, Mr Kardoulias pleaded not guilty with respect to an indictment alleging that he did:

“Between about 5 August 2001 and about 4 April 2002 at Sydney, New South Wales conspire with Rafael Leonardo Andres, Raed El-Akkaoui, Petros Kastellorizos, Ruben Mas Rivadavia and divers others to import into Australia prohibited imports to which section 233B of the Customs Act 1900 applied, to wit, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin.”

5 Following a trial in the Sydney District Court before Nield DCJ and a jury, on 7 October 2003 the jury convicted Mr Kardoulias of the charge. The sentencing proceedings concerning Mr Kardoulias were adjourned to a later date.

6 Petros Kastellorizos was tried jointly with Mr Kardoulias and, on 7 October 2003, was acquitted by the jury.

7 On 13 August 2003, Mr Andres, Mr Mas Rivadavia and Mr El-Akkaoui pleaded guilty to the charge contained in the indictment. Their sentencing proceedings were adjourned to a later date.

8 The total weight of the four blocks of heroin imported into Australia by the conspirators was 1.395 kilograms with a weight of pure heroin in the blocks of 708.5 grams. As the trafficable quantity for heroin is two grams, the heroin was 354 times the trafficable quantity. The heroin had a wholesale value between $308,000.00 and $520,000.00 and a conservative street value of $1,125,461.00.

9 The maximum penalty for the offence was 25 years’ imprisonment and/or a fine of $500,000.00: s.235(2)(d) Customs Act 1901 (Cth).

10 On 11 February 2004, Nield DCJ imposed the following sentences with respect to this conspiracy:

(a) Spiros Kardoulias – imprisonment for 13 years and six months with a non-parole period of eight years and six months, each to commence from 8 April 2002 being the date on which he was taken into custody;

(b) Ruben Mas Rivadavia – imprisonment for six years and nine months with a non-parole period of four years and three months, each to date from 8 April 2002, being the date on which he was taken into custody;

Raed El-Akkaoui

11 Mr Andres was charged with and pleaded guilty to a further charge, and was not sentenced by Nield DCJ with the other conspirators on 11 February 2004. His sentencing proceedings travelled separately from the others and, on 27 May 2004, Nield DCJ sentenced him with respect to the heroin conspiracy and a second offence (the ecstasy conspiracy) to which reference will be made shortly.

12 With respect to the heroin conspiracy, Mr Andres was sentenced to imprisonment for eight years and six months to commence from 9 April 2002 and to expire on 8 October 2010, the former being the date on which he was taken into custody for the heroin offence. The sentencing judge indicated that, if he were to apportion the heroin conspiracy sentence between a non-parole period and a parole period, there would be a non-parole period of five years and three months and a parole period of three years and three months. However, in accordance with s.19AB(1) Crimes Act 1914 (Cth), his Honour set a single effective non-parole period of nine years against a total effective head sentence of 14 years and six months with respect to both offences for which Mr Andres was sentenced.

13 For completeness, I note that Umit Aksu pleaded guilty to a charge of attempting to commit an offence under s.233B(1)(c) Customs Act 1901 (Cth) in attempting to have in his possession the same prohibited import (heroin). On 11 February 2004, Nield DCJ sentenced Mr Aksu to imprisonment for four years and three months with a non-parole period of two years and six months, each to date from 4 April 2002, being the date on which he was taken into custody.

14 An appeal by Mr Kardoulias against his conviction with respect to the heroin conspiracy was dismissed by this Court, differently constituted, on 22 April 2005: R v Kardoulias [2005] NSWCCA 150.

15 The Crown lodged appeals asserting that the sentences imposed upon Mr Kardoulias, Mr Mas Rivadavia, Mr El-Akkaoui and Mr Aksu were manifestly inadequate. On 16 July 2004, the Crown appeals with respect to Mr Mas Rivadavia, Mr El-Akkaoui and Mr Aksu proceeded to hearing. The Crown appeal relating to Mr Kardoulias was stood over given his outstanding appeal against conviction.

16 On 18 August 2004, the Court, differently constituted, allowed the Crown appeals with respect Mr Mas Rivadavia and Mr El-Akkaoui but dismissed the appeal concerning Mr Aksu: R v Mas Rivadavia and Ors (2004) 149 A Crim R 1; [2004] NSWCCA 284. Having allowed two of the Crown appeals, the Court quashed the sentences imposed by Nield DCJ and imposed the following sentences in their place:

(a) Ruben Mas Rivadavia – sentenced to imprisonment for eight years and three months to date from 8 April 2002 and to expire on 7 July 2010 with a non-parole period of five years and three months to date from 8 April 2002 and to expire on 7 July 2007;

Raed El-Akkaoui

17 Before the Court at present are the Crown appeals against sentence with respect to Mr Kardoulias and Mr Andres and applications for leave to appeal against sentence by those persons.

The Ecstasy Conspiracy

18 On 27 May 2004, following his plea of guilty, Mr Andres was sentenced by Nield DCJ with respect to an indictment in the following terms:

“Between about 12 February 2002 and about 24 April 2002 at Sydney, New South Wales he did conspire with Rafael Cesan, Ruben Mas Rivadavia and divers others persons to commit an offence against section 233B(1)(b) of the Customs Act 1901 namely to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of 3,4-methylenedioxymethamphetamine being not less than the commercial quantity applicable to 3,4- methylenedioxymethamphetamine.”

19 The drug involved in this count is commonly known as MDMA or ecstasy and I shall use the latter term in this judgment. This conspiracy resulted in 5,699 tablets of ecstasy containing 642.6 grams of pure MDMA being imported into Australia. The commercial quantity applicable to MDMA is 500 grams. Accordingly, the quantity of MDMA imported into Australia represented one-and-a-quarter times the commercial quantity. The ecstasy tablets had a wholesale value between $85,485.00 and $142,475.00 and a street value between $113,980.00 and $398,930.00.

20 The maximum penalty prescribed for this offence, where the quantity of the relevant narcotic goods is not less than the commercial quantity, is life imprisonment and/or a fine of $850,000.00: s.235(2)(c) Customs Act 1901 (Cth).

21 For the ecstasy conspiracy, Nield DCJ sentenced Mr Andres to imprisonment for 10 years and indicated that, if apportionment of that sentence into a non-parole period and a parole period was to take place, a non-parole period of six years and six months and a parole period of three years and six months would be fixed. Having regard to the fact that his Honour was sentencing Mr Andres for two conspiracies, and in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610, Nield DCJ turned his mind to the issues of accumulation, concurrency and totality. The sentence of imprisonment for 10 years with respect to the ecstasy conspiracy was fixed to commence on 9 October 2006 and to expire on 8 October 2016. A singe non-parole period was fixed of nine years to commence on 9 April 2002 and to expire on 8 April 2011. As a result of these orders, the second sentence was to be served concurrently with the first sentence for four years and was to be cumulative upon it for six years. The sentencing order, accordingly, resulted in a total head sentence of 14 years and six months with an effective non-parole period of nine years.

22 At the time when the Crown appeals with respect to Mr Mas Rivadavia, Mr El-Akkaoui and Mr Aksu were heard and determined in July-August 2004, the Court was informed that the Crown was contemplating an appeal challenging the adequacy of the sentences imposed upon Mr Andres: R v Mas Ravadavia at 4 (paragraph 5(e)).

23 Rafael Luis Cesan and Ruben Mas Rivadavia pleaded not guilty to the ecstasy conspiracy and, following a trial before Dodd DCJ and a jury, were convicted on 28 June 2004 of the offence. On 18 March 2005, Dodd DCJ sentenced Mr Cesan to imprisonment for 13 years and six months with a non-parole period of nine years, with both periods to date from 1 May 2003, the date of Mr Cesan’s arrest. Mr Mas Rivadavia was sentenced to imprisonment for a term of 11 years to date from 8 April 2006 and to expire on 7 April 2017 with respect to the ecstasy conspiracy. Having regard to the fact that Mr Mas Rivadavia was already serving a sentence of imprisonment for the heroin conspiracy, Dodd DCJ set a new non-parole period of 10 years to commence on 8 April 2002 and expire on 7 April 2012.

24 This Court was informed that the Crown has not lodged any appeal against inadequacy of sentence imposed upon Mr Cesan or Mr Mas Rivadavia for the ecstasy conspiracy, nor has any severity appeal been lodged by either of those persons.

25 Before the Court at present are the Crown appeal with respect to the sentence imposed upon Mr Andres by Nield DCJ for the ecstasy conspiracy and the application for leave to appeal against sentence by Mr Andres with respect to that matter.

Facts of the Heroin Conspiracy

26 In the judgment of the Court of Criminal Appeal concerning the Crown appeals with respect to Mr Mas Rivadavia and others, reference was made to the factual circumstances of the heroin conspiracy. Given the issues which have been agitated before this Court, including certain challenges to findings of fact made by Nield DCJ for the purpose of sentence, it is appropriate to refer to his Honour’s judgment on sentence to allow the present appeals to be viewed in their factual context.

27 The remarks on sentence of Nield DCJ of 11 February 2004 in which Mr Kardoulias and others (but not Mr Andres) were sentenced included the following findings (pages 1-3):

“On 5 August 2001 the Australian Federal police commenced an investigation into the activities of Spiros Kardoulias, Rafael Leonardo Andres, Ruben Mas Rivadavia and Raed El-Akkaoui, related to their possible importation of a quantity of prohibited drug into Australia.

During the course of the investigation, the Australian Federal Police became aware of the involvement of Petros Kastellorizos, Umit Aksu, Christopher Nikiforidis and Dimitrios Nitsas in the activities of the other men.

During the investigation, the Australian Federal Police intercepted and recorded telephone conversations which passed between the men, intercepted and recorded via a listening device person to person conversations involving some of the men and followed the men to meetings which occurred from time to time between some of them.

On 8 March 2002, a package, lodged on 7 March 2002 with Federal Express in Hong Kong for shipment by airfreight to Australia, arrived in Sydney. This package, which was not intercepted by Australian Customs or the Australian Federal Police, did not contain any prohibited drug. It was, to use the expression used during the trial of Mr Kardoulias, a dummy run. It was conducted to ascertain whether it was possible to import a quantity of a prohibited drug into Australia through the Federal Express System.

On 11 March 2002 Mr Aksu, at the request of Mr El-Akkaoui, accepted delivery of the package at 1395 Botany Road, Botany, and, after emptying the contents of the package into his backpack, and discarding the package’s wrapping, took the contents of the package to his home. Later that day, Mr El-Akkaoui collected the contents of the package from Mr Aksu’s mother at his home.

In the morning of 4 April 2002 a package, lodged on 3 April 2002 with Federal Express in Hong Kong for shipment by airfreight to Australia, arrived in Sydney. This package was intercepted by Australian Customs and the Australian Federal Police and it was found to contain four blocks of hardened off-white coloured powder. The total weight of the blocks was 1.395 kilograms and the blocks contained 708.5 grams of pure heroin. The wholesale value of the heroin ranged between $308,000 to $520,000, and the street value of the heroin was $1,125,461. The blocks were removed from the package and they were replaced with blocks of similar size, shape and weight of an inert substance of similar colour and the package was reassembled to resemble its original appearance for collection.

At 5pm on 4 April 2002 Mr El-Akkaoui drove Mr Aksu to the Federal Express World Service Centre at Alexandria where Mr Aksu collected the package. After collecting it, Mr Aksu returned to Mr El-Akkaoui and handed the package to him.

At about 6.53pm that day Mr El-Akkaoui handed a backpack containing the substitute blocks over to Mr Nitsas.

Later, on 4 April 2002 Mr Aksu and Mr Nitsas were arrested.

On 5 April 2002 Mr El-Akkaoui was arrested.

On 8 April 2002 Mr Mas Rivadavia was arrested.

On 9 April 2002 Mr Kardoulias and Mr Kastellorizos were arrested.”

28 Nield DCJ made the following findings concerning the nature of the conspiracy and the role of the conspirators (remarks on sentence, 11 February 2004, pages 5-8) (emphasis added):

“The plan to import the heroin into Australia was a fairly simple one. Somebody would lodge a package containing a quantity of heroin in it with Federal Express in Hong Kong for shipment by airfreight to Sydney in Australia. The movement of the package through the Federal Express system from Hong Kong to Sydney would be monitored. After arrival of it in Sydney, the package would be collected from the Federal Express World Trade Centre at Alexandria. After collection, the package, or at least the heroin in it, would be handed over to somebody. This plan, notwithstanding its simplicity, was a fairly sophisticated one. The conspirators used assumed names to identify Mr Kardoulias, Mr Kastellorizos and Mr Andres. They used public telephones or mobile telephones registered in names other than their own when talking among themselves. They used a code to describe things and numbers when talking among themselves. They met at night and sometimes in the early hours of the morning in public places to conduct meetings which lasted for short periods of time. All of this was done in order to disguise what was happening and the identities of those involved in what was happening and in the hope of avoiding detection.

This plan was devised by, at least, Mr Kardoulias

.

In determining the criminality of one offender relative to another offender or other offenders, it is necessary to assess what the offender has done in carrying out his role in the enterprise or undertaking or activity, whichever word is given to describe what was done

. In doing this, I do not overlook the fact that Mr Kardoulias, Mr Mas Rivadavia and Mr El-Akkaoui are guilty of the offence of conspiracy to import not less than the trafficable quantity of heroin into Australia and that Mr Aksu is guilty of attempting to possess that quantity of heroin after it had been imported into Australia, albeit that both offences carry the same prescribed penalty, that is, imprisonment for a minimum of twenty-five years or a fine of a minimum of five hundred thousand dollars or both.

In my view, looking at the conduct of Mr Kardoulias from 5 August 2001 to 4 April 2002, as revealed by the evidence, and as detailed in my chronology, the conclusion is both obvious and inescapable that he was a principal, if not the principal, in the conspiracy to import the heroin into Australia. He was present at the beginning and at the end. Notwithstanding the absence of direct evidence, the inference is clear that he gave the instructions about what was to be done, when it was to be done and how it was to be done and that he was to pay the others for what they did in the importation of the heroin into Australia. The evidence confirms that he recruited Mr Kastellorizos as his errand boy or lackey, to use the words used by Mr Kastellorizos’ counsel during his trial, to distance himself from the other conspirators, to have, as it were, a fire wall between himself and the other conspirators

.

Considering Mr Mas Rivadavia and Mr El-Akkaoui, in my view, there is not any significant difference in their criminality. They were not principals in the conspiracy. They were recruited into it by Mr Andres. They were his lieutenants. Although they had not devised the plan, they had a role to play in it and they were important in the execution of it

.

As to Mr Aksu, his involvement with the heroin commenced after it had arrived in Sydney. He was to collect the passage

containing the heroin. He did that at the behest of Mr El-Akkaoui. He was to pass the package over to Mr El-Akkaoui. It was a small and limited involvement. It can be likened to the role of a courier in the hierarchy of a drug importing organisation. It was an involvement with knowledge that the package contained the prohibited drug and it was the involvement for financial reward.

I do not have any doubt that all of the offenders were involved in the enterprise or undertaking or activity, however it is described, for financial reward. I cannot accept the evidence of Mr Mas Rivadavia about what he said he was told by Mr Andres that he was not to receive anything for doing what he did. Although I am unable to say what reward each was to receive, other than Mr Aksu, who was to receive three hundred dollars for taking delivery of the first package, and one thousand two hundred dollars for collecting the second package, I suspect that the reward would have been measured in the thousands of dollars, rather than in hundreds of dollars.”

Mr Kardoulias’ Subjective Circumstances

29 Mr Kardoulias was born on 17 July 1966. Accordingly, he was 35 years of age when he became a party to the conspiracy and was aged 37 years at the time of sentence. He was born in Australia of Greek parentage. However, he lived in Greece for a period before returning to Australia in 1988. He was educated to the equivalent of Year 11 in Greece. After returning to Australia in 1988, he was self employed as a painter, renovator and importer/exporter of electrical equipment.

30 He married in 1988, but separated from his wife in 1996. There is one son of the marriage who is now 15 years of age.

31 Mr Kardoulias has a prior criminal history. On 15 February 1993, he was fined and placed on a two-year recognisance with respect to charges of possession of a prohibited drug (heroin), possession of a prohibited drug (cannabis), offer bribe and resist police (three counts). On 18 November 1996, he was sentenced in the Campbelltown District Court to imprisonment for 18 months by way of periodic detention and a three-year good behaviour bond with respect to three counts of supplying a prohibited drug (heroin). On 22 March 2002, he appeared in the Sutherland Local Court and was fined $400.00 for possess/use a prohibited weapon without a permit.

32 In passing sentence, Nield DCJ observed (remarks on sentence, 11 February 2004, pages 10-11):

“I think it is obvious that the offender learnt nothing from the sentences imposed upon him for these drug related offences.”

33 His Honour later observed (remarks on sentence, 11 February 2004, page 11):

“I do not know whether the offender would have support, accommodation or employment following his release from prison. His past does not instil me with any confidence that he is unlikely to re-offend.”

Findings of Nield DCJ Concerning Mr Andres and the Heroin and Ecstasy Conspiracies

34 Mr Andres was charged with the heroin conspiracy on 9 April 2002 and pleaded guilty to the charge on 13 August 2003. He was charged with the ecstasy conspiracy on 14 April 2003 and pleaded guilty to that charge on 27 November 2003.

35 In the course of sentencing Mr Andres on 27 May 2004 with respect to both offences, Nield DCJ made a number of findings (remarks on sentence, 27 May 2004, page 2):

“The offender was employed during the periods of the conspiracies by Federal Express, as was Mr Mas Rivadavia. The conspirators in both conspiracies imported the prohibited drug into Australia through Federal Express. As it happened, the Australian Federal Police became aware of the conspiracies and mounted an operation to identify and to arrest the conspirators and to seize the prohibited drugs. The AFP operation was successful.

…

the heroin that had been lodged with Federal Express in Hong Kong on 3 April 2002 and had arrived in Australia on 4 April 2002 was seized and the people found in possession of it were arrested and, over the following few days, all of the conspirators were arrested.

On 23 April 2002 the MDMA in the form of ecstasy tablets that had been lodged with Federal Express in Germany on 8 April 2002 and had arrived in Australia on 10 April 2002 was seized and the person in possession of it was arrested and, subsequently, all of the other alleged conspirators were arrested.”

36 Nield DCJ then incorporated his findings with respect to the heroin conspiracy which has been set out in paragraph 28 above. His Honour then continued (remarks on sentence, 27 May 2004, page 3):

“What I have said about the first conspiracy applies almost equally to the second conspiracy, albeit that the conspirators supplied their own mobile telephones, of which they were registered as the subscribers, other than in relation to one conspirator, and they used their correct names when speaking with each other. I need say nothing more about the circumstances of either conspiracy.”

37 Nield DCJ found that Mr Andres was a willing party to the conspiracies and that his reason for doing so was “his expectation of a significant financial reward”.

38 Nield DCJ turned later in his remarks on sentence to an assessment of the respective roles of Mr Andres and his co-offenders in the heroin conspiracy and an assessment of Mr Andres’ role in the ecstasy conspiracy (remarks on sentence, 27 May 2004, pages 15-17) (emphasis added):

“As to the conspiracy to import the heroin, the offender’s co-conspirators were Mr Kardoulias, Mr Mas Rivadavia and Mr El-Akkaoui.

In sentencing them I determined that Mr Kardoulias was ‘a’ if not ‘the’ principal, and that Mr Mas Rivadavia and Mr El-Akkaoui were the offender’s lieutenants

.

The Crown Prosecutor submitted that the offender’s role in the conspiracy was a significant one, higher than that of Mr Mas Rivadavia or Mr El Akkaoui, and similar to that of Mr Kardoulias. The offender’s counsel submitted that the offender’s role was a useful and important one, but equal to that of Mr Mas Rivadavia.

It is clear, in my view, that the main participants in the conspiracy were Mr Kardoulias and the offender. Although the evidence does not reveal how the conspiracy came about, the evidence reveals that Mr Kardoulias recruited Mr Kastellorizos to be his errand boy or lackey and that the offender recruited Mr Mas Rivadavia and Mr El Akkaoui to be his lieutenants. Also, although the evidence does not reveal who devised the plan, the inference is clear that it was devised by Mr Kardoulias, either alone or with the offender. The evidence reveals that all important decisions were made by Mr Kardoulias either alone or with the offender. Also, the evidence reveals that the offender gave directions to both Mr Mas Rivadavia and to Mr El Akkaoui as to what was happening and as to what they were to do

.

I consider that the offender’s role to have been higher than that of both Mr Mas Rivadavia and Mr El Akkaoui and closer to that of Mr Kardoulias, although I am unable to say that it was equal with that of Mr Kardoulias

.

As to the conspiracy to import the MDMA, the offender’s alleged co-conspirators were Mr Mas Rivadavia and Mr Cesan, although both of them have denied any involvement in the alleged conspiracy and they are to stand their trial in relation to the charge.

The Crown Prosecutor submitted that the offender’s role in the conspiracy was of great importance. The offender’s counsel submitted that the offender’s role was useful and important.

It is clear, in my view, that, in this conspiracy, the offender and Mr Cesan were the main participants and that, as in the first conspiracy, Mr Mas Rivadavia was the offender’s lieutenant. Again, the evidence does not reveal how the conspiracy came about or who devised the plan, although, in view of the similarities between the conspiracies, I think that it is likely that, having regard to when the conspiracies started, the offender, being a party to the first conspiracy, was the instigator of the second conspiracy

.”

39 Nield DCJ found that Mr Andres had abused his position in Federal Express and breached his employer’s trust in using his knowledge of that system to aid both conspiracies, and to ensure that the cameras in the Federal Express office at Alexandria had not been operating when Mr Aksu collected the package containing the heroin relevant to the first conspiracy. His Honour did not, however, regard this as an aggravating circumstance, applying the statement of Hulme J in R v Stanbouli (2003) 141 A Crim R 531 at 538-9 (paragraphs 33-35) that Federal Express was not a victim and that his actions were not in direct contravention of what Mr Andres was employed to do.

40 Nield DCJ found that Mr Andres’ plea of guilty to the heroin conspiracy was not made at an early opportunity, having been entered on a day fixed for his trial. Nevertheless, his Honour allowed a discount of 15% as a result of the plea. His Honour found that the plea of guilty with respect to the ecstasy conspiracy had been entered at the earliest opportunity and a discount of 25% was allowed in this respect.

Mr Andres’ Subjective Circumstances

41 Mr Andres was born on 21 May 1964. He was 37 years old when he participated in the conspiracies and was 40 years of age at the time of sentence. He was born in Uruguay and came to Australia with his family in 1974. In 1980, he obtained his School Certificate and he later qualified as a customs broker. Since leaving school, Mr Andres had been in regular full-time employment other than a period when he travelled overseas. There was a body of evidence before the District Court testifying to his capacity as an employee and his talent as a musician.

42 Mr Andres married in 1991, but separated from his wife in 1996 and divorced in 1997. There is one daughter of the marriage presently aged nine years who lives with his former wife.

43 Mr Andres had no prior convictions and evidence was adduced in the District Court concerning his fund-raising activities for a Uruguayan charity.

44 Nield DCJ made the following finding concerning contrition (remarks on sentence, 27 May 2004, pages 10-11):

“Notwithstanding that the offender did not give evidence, and therefore, I cannot assess for myself the genuineness of his expressions of contrition, I accept that the offender, a man of hitherto good character and reputation, who has committed two very serious offences, realises both the stupidity and illegality of committing those offences and is contrite for having done so.”

45 With respect to prospects of rehabilitation, Nield DCJ said (remarks on sentence, 27 May 2004, page 11):

“The offender is an intelligent and musically talented man who had lived a respectable and responsible life before he became involved in the subject conspiracies. He is contrite for having done so. He is making good use of his time in prison, as evidenced by Exhibits 8, 9 and 10.

He has the support of his parents and siblings. He has been assessed by the Probation and Parole Officer as not having any underlying issues that can be addressed by supervision or by programs administered by the Probation and Parole Service, see Ex O.

He has been assessed by Mr Milic as having ‘strong potential for full rehabilitation and reintegration into mainstream society, see Ex 12.

I consider that the offender will be rehabilitated to take his place in society. I doubt that he will reoffend.”

46 With respect to deterrence, Nield DCJ concluded that, as a consequence of his finding that Mr Andres will be rehabilitated and will not re-offend “personal deterrence is not as important in this case as it might be in another case” (remarks on sentence, 27 May 2004, pages 11-12). However, his Honour observed that general deterrence was an important factor in passing sentence.

Sentences Imposed Upon Mr Andres

47 In calculating the sentence for Mr Andres with respect to the heroin conspiracy, Nield DCJ determined that a starting point of 10 years’ imprisonment, less 15% on account of his guilty plea, ought be imposed resulting in a head sentence of eight years and six months’ imprisonment. As mentioned earlier in this judgment, his Honour imposed a single non-parole period with respect to both conspiracies for which Mr Andres was sentenced. However, his Honour indicated that, if a non-parole period was to be set for the heroin conspiracy, a non-parole period of five years and three months would have been fixed.

48 In determining sentence upon the ecstasy count, Counsel for Mr Andres had submitted that his Honour should have regard, for the purposes of parity, to a sentence imposed upon a co-conspirator, Iden Chan, by his Honour Judge Gibson QC. Mr Chan had pleaded guilty to the offence of attempting to import a quantity of ecstasy being not less than the commercial quantity. A sentence of imprisonment of eight years with a non-parole period of five years had been fixed by his Honour Judge Gibson QC. Nield DCJ concluded that there were differences between Mr Chan and Mr Andres in both objective and subjective circumstances and that, as a result, he did not regard himself as bound to impose a similar sentence upon Mr Andres.

49 Nield DCJ selected, as a starting point, a term of imprisonment for 13 years and six months which was discounted by 25% on account of the guilty plea and which, for ease of calculation, left a head sentence of 10 years’ imprisonment. His Honour indicated that, if a non-parole period was to be set for the ecstasy conspiracy, a non-parole period of six years and six months would have been imposed.

50 His Honour then turned to the question of totality (remarks on sentence, 27 May 2004, pages 20-21):

“The offender was charged with, and he has pleaded guilty to, two separate and distinct conspiracies to import a prohibited drug into Australia. The first conspiracy started on/about 5 August 2001 and the second conspiracy started on/about 12 February 2002. The first conspiracy related to heroin imported from Hong Kong and the second conspiracy related to MDMA imported from Germany. The modus operandi used by the conspirators was similar. The offender and Mr Mas Rivadavia were participants in both conspiracies. Although I cannot be sure, I suspect, from what was said by the conspirators, that Mr Kardoulias did not know about the importation of MDMA and that Mr Cesan, although he might have suspected Mr Andres’ involvement in another importation, was not a party to the importation of heroin.”

51 In the District Court, the Crown submitted that because of Mr Andres’ involvement in two separate and distinct conspiracies, the sentences should be accumulated. Counsel for Mr Andres submitted that he could and should have been charged with one conspiracy to import prohibited drugs and, having regard to the overlap between the conspiracies, the sentences should be served concurrently or, at least, substantially concurrently. His Honour noted that there were two conspiracies entered into at different times involving different people relating to different prohibited drugs. In the circumstances, Nield DCJ concluded that, to reflect Mr Andres’ total criminality for the two offences, a sentence of imprisonment of 14 years and six months was appropriate. His Honour noted that he was required by s.19AB(1) Crimes Act 1914 (Cth) to fix a single non-parole period in respect of the two sentences. As the usual non-parole period fixed in relation to a sentence or sentences imposed on a federal offender lay within a range of 60%-66% of the head sentence, Nield DCJ concluded that the appropriate non-parole period was one of nine years.

52 Accordingly, his Honour fixed a single non-parole period of nine years to commence on 9 April 2002, the day of Mr Andres’ arrest, and to expire on 8 April 2011 with a non-parole period of five years and six months to commence on 9 April 2011 and to expire on 8 October 2016.

Submissions on Hearing of Appeals

53 Before this Court, the various appeals involving Mr Kardoulias and Mr Andres were heard together. It is clear that there are overlapping issues. It is appropriate to turn first to the application for leave to appeal against sentence by Mr Kardoulias and Mr Andres.

Mr Kardoulias’ Application for Leave to Appeal

54 Mr Boulten SC, for Mr Kardoulias, advances his client’s application for leave to appeal in the following way:

(a) that the sentence imposed upon Mr Kardoulias by Nield DCJ was significantly higher than the sentences imposed upon the other heroin co-conspirators so that the successful Crown appeals concerning other offenders ought not necessarily have a flow-on application to Mr Kardoulias;

(b) that the sentence imposed upon Mr Kardoulias was manifestly excessive;

(c) that the manifestly excessive nature of the sentence is demonstrated by the fact that Nield DCJ erred in making findings of fact concerning the significance of the involvement of Mr Kardoulias in the conspiracy;

55 Mr Boulten SC submits that Nield DCJ erred in a number of respects in making findings of fact concerning the role of Mr Kardoulias in the heroin conspiracy.

Ground 1 – His Honour Erred by Finding that the Plan for the Conspiracy Was Devised by Mr Kardoulias

Ground 2 – His Honour Erred by Finding that Mr Kardoulias Gave Instructions About What Was to be Done, When it Was to be Done and How it Was to be Done and That He Was to Pay the Others for What They Did in the Importation of the Heroin Into Australia

56 In approaching these grounds, it should be kept in mind that this Court is bound by findings of fact of the sentencing judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King (1936) 55 CLR 499 at 504: R v Khouzame [2000] NSWCCA 505 at paragraphs 33-41; R v Merritt (2004) 59 NSWLR 557 at 573 (paragraph 61). Mr Boulten SC submits that the evidence was such that it was not open to Nield DCJ to be satisfied that Mr Kardoulias did act in the ways referred to in Grounds 1 and 2 and thus the sentence imposed was affected by error.

57 The Crown, supported by Mr McLachlan, Counsel for Mr Andres, developed a submission, illustrated by examples, to support the findings of Nield DCJ that Mr Kardoulias was “a” principal, if not “the” principal, in the heroin conspiracy. Mr Boulten SC, on the other hand, addressed the examples given in the telephone intercept and listening device evidence with a view to placing a different interpretation upon what was said.

58 To assist the resolution of several issues in the appeals, it is appropriate to examine the findings of Nield DCJ concerning the respective roles of Mr Kardoulias and Mr Andres in the heroin conspiracy. To a very substantial extent, the Crown case involved evidence of conversations between the co-conspirators obtained by means of listening devices and telephone intercepts together with visual surveillance evidence. There was no real issue with the Crown case. The principal arguments advanced in the trial of Mr Kardoulias concerned inferences to be drawn from conversations which had been electronically recorded and movements of and meetings between persons which were the subject of surveillance evidence. When Nield DCJ came to sentence Mr Kardoulias and, following his plea of guilty, Mr Andres, his Honour had the advantage of presiding at the trial of Mr Kardoulias at which the electronic and surveillance evidence was revealed in detail.

59 In the course of submissions, Counsel took the Court to various comments made by one or other of the conspirators as recorded by listening device or telephone intercept. It was submitted that these comments threw light upon the true role of Mr Kardoulias and Mr Andres in the heroin conspiracy. I have considered the submissions made by Counsel concerning these examples which were drawn from the transcripts of electronic surveillance. It is not necessary to refer to the particular examples provided during submissions. It is appropriate to consider these examples in the broader context of a large number of conversations between the conspirators and other observed events extending over a period of eight months between August 2001 and April 2002.

60 An examination of all the evidence supports the following conclusions, which are broadly consistent with those formed by Nield DCJ:

(a) Mr Kardoulias and Mr Andres played the major organisational roles with respect to the heroin conspiracy;

(b) unlike the co-conspirators, these two conspirators had a special line of communication using mobile telephones leased in false names and used for the purposes of communications with each other;

(c) throughout the heroin conspiracy, Mr Andres was Customs Manager at Federal Express at Alexandria - he occupied a senior position and was superior to Mr Mas Rivadavia, who was a Customs Clerk and then an Associate Classifier at Federal Express during the currency of the conspiracy - Mr Andres played a major organisational role at the Federal Express end of the heroin conspiracy;

(d) Mr Kardoulias played a major organisational role with respect to the heroin conspiracy in areas other than those involving Federal Express;

(e) a significant part of the conspiracy involved the use of air waybill numbers lodged with Federal Express to facilitate the importation of heroin into Australia - this was an area of the conspiracy in relation to which Mr Andres played a significant organisational role;

(f) Mr Andres’ responsibility included recruitment of Mr Mas Rivadavia within Federal Express;

(g) Mr Kardoulias’ responsibility included recruitment of persons outside Federal Express;

61 An examination of the evidence before Nield DCJ supports his Honour’s findings that Mr Kardoulias and Mr Andres were the leading figures in the heroin conspiracy. Neither offender gave evidence at trial (in the case of Mr Kardoulias) or in the sentencing proceedings (in the case of Mr Kardoulias and Mr Andres). Any findings for the purpose of sentence as to the respective roles of these two offenders in the heroin conspiracy depended upon an examination of evidence in the Crown case and the drawing of inferences so as to support findings to the criminal standard of proof: The Queen v Olbrich [1999] 199 CLR 270 at 281 (paragraphs 25-27).

62 Mr Boulten SC relied upon the statement in Olbrich at 277-8 (paragraphs 13-16) which emphasised that identification of the precise nature of an offender’s involvement in a drug importation offence is not an essential aspect of the sentencing process, the utility of such an exercise being necessarily limited by the extent to which the material facts are known.

63 In my view, it is clear that both Mr Kardoulias and Mr Andres were classified appropriately as principals in the heroin conspiracy. Both played substantial organisational roles. Their roles were significantly more culpable than Mr El-Akkaoui and Mr Mas Rivadavia. On the evidence before the District Court, I do not consider that it is possible, to the criminal standard of proof, to make a finding that one or other was the dominant principal in the conspiracy. In my opinion, both persons ought to have been treated as having the same level of culpability when determining the objective seriousness of their conduct. With respect to Ground 1, the finding of Nield DCJ was that the plan “was devised by, at least, Mr Kardoulias”. The evidence supports this finding and a conclusion that Mr Kardoulias and Mr Andres were at the same level of criminal involvement in the conspiracy. It was open to Nield DCJ to make the findings which were challenged in Ground 2.

64 Of course, there were other significant distinguishing features between the two offenders. Mr Kardoulias pleaded not guilty and was convicted following a trial. He had a prior record for supplying a prohibited drug. Nield DCJ did not make a finding that his prospects of rehabilitation were good. Mr Andres, on the other hand, pleaded guilty to the offence, had no prior convictions and a finding was made by Nield DCJ that his prospects of rehabilitation were good. In these circumstances, a basis existed for distinguishing the two offenders when sentence was passed for the heroin conspiracy. However, in my view, the level of objective criminality of the two offenders ought be regarded as the same.

Ground 3 – His Honour’s Sentencing Exercise Miscarried in that the Sentence Imposed Upon Mr Kardoulias is so Much More Severe than the Sentence Imposed Upon Mr Andres that it Gives Rise to a Justifiable Sense of Grievance on the Applicant’s Behalf

65 In support of this Ground, Mr Boulten SC pointed to the contrast between the overall sentence imposed upon Mr Andres for two separate conspiracies when compared with Mr Kardoulias’ sentence for the heroin conspiracy. Mr Boulten SC submitted that a proper assessment of the roles played by Mr Kardoulias and Mr Andres should have led Nield DCJ to conclude that Mr Andres was more culpable than Mr Kardoulias or, perhaps, that it was impossible to determine that one was more culpable than the other. It was submitted that it was not properly open to Nield DCJ to determine that Mr Kardoulias was more culpable than Mr Andres. Yet, it is submitted that Nield DCJ set a significantly reduced sentence for Mr Andres in relation to the heroin conspiracy.

66 There is some force in this submission if it is accepted that the roles of Mr Kardoulias and Mr Andres in the conspiracy were not materially different. However, the appropriate course is not to reduce the sentence imposed upon Mr Kardoulias, which is not manifestly excessive nor affected by patent error, to the level of (what I will shortly find to be a) manifestly inadequate sentence imposed upon Mr Andres for the heroin conspiracy. Rather, the appropriate course, having regard to the findings made and sentences imposed by this Court in the Crown appeals in Mas Rivadavia, is to allow the Crown appeal and increase the sentence imposed upon Mr Andres.

Conclusion Concerning Mr Kardoulias’ Application

67 Having considered the arguments developed by different Counsel, I am not satisfied that error has been demonstrated in his Honour’s findings of fact with respect to the role of Mr Kardoulias in the heroin conspiracy. It was open to Nield DCJ to find that Mr Kardoulias was a principal in the conspiracy. His role was no less than that of Mr Andres. Both were the major organisational figures in the conspiracy. As is common in cases such as this, a cumulative impression may develop from what is said and done over a period of time which provides a foundation for findings of fact of the type made by Nield DCJ concerning Mr Kardoulias. I am satisfied that a foundation existed for such a finding and that no error has been demonstrated in that regard.

68 In the light of this conclusion, it is necessary to consider whether in the absence of any error in his Honour’s decision making, the sentence imposed upon Mr Kardoulias is itself manifestly excessive.

69 Having regard to the objective and subjective circumstances of the case, I am not satisfied that the sentence imposed upon Mr Kardoulias was manifestly excessive. I am not satisfied that some other (lesser) sentence was warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. Accordingly, I propose that Mr Kardoulias be granted leave to appeal, but that his appeal against sentence be dismissed.

70 I shall return to the Crown appeal concerning Mr Kardoulias after consideration has been given to Mr Andres’ application for leave to appeal against sentence.

The Application for Leave to Appeal by Mr Andres

71 In written submissions filed on behalf of Mr Andres’ application for leave to appeal against sentence, it was contended that Nield DCJ had erred in finding that, with respect to the heroin conspiracy:

(a) Mr Andres was a main participant in the conspiracy along with Mr Kardoulias;

(b) Mr Andres recruited Mr Mas Rivadavia and Mr El-Akkaoui to be his “lieutenants” ;

(c) Mr Kardoulias may have devised a plan with Mr Andres;

(d) Mr Kardoulias may have made all the important decisions with Mr Andres;

(e) Mr Andres gave directions to both Mr Mas Rivadavia and Mr El-Akkaoui as to what was happening and as to what they were to do; and

72 With respect to the ecstasy conspiracy, Mr Andres contends that Nield DCJ erred in finding that:

(a) it was “clear” that Mr Andres and Mr Cesan were the “main participants” in the conspiracy;

(b) Mr Mas Rivadavia was Mr Andres’ “lieutenant” ; and

(i) the similarities between the conspiracies (of which Mr Andres was a common member), and

“instigator”

73 Further, it was submitted that Nield DCJ erred in application of the parity principle as between Mr Andres and Iden Chan.

74 It was further contended that Nield DCJ failed to properly apply the totality principle in accumulating the two sentences in the manner in which he did, with the result that the effective head sentence and effective non-parole period imposed were manifestly excessive.

75 In my view, there was ample evidence to support the findings of fact, to the criminal standard, made by Nield DCJ with respect to the role of Mr Andres in the heroin conspiracy and the ecstasy conspiracy. It was open to his Honour to find that Mr Andres was a principal with respect to both conspiracies. The evidence revealed that Mr Andres and Mr Kardoulias played major organisational roles in the heroin conspiracy. They were significantly more culpable than Mr Mas Rivadavia and Mr El-Akkaoui. If anything, the findings of Nield DCJ concerning the heroin conspiracy unduly favoured Mr Andres in that they left open the view that Mr Kardoulias may have stood above him in the hierarchy. I have concluded earlier that Mr Andres and Mr Kardoulias ought be regarded as occupying the same level of involvement in the conspiracy.

76 With respect to the ecstasy conspiracy, the evidence revealed that Mr Andres played a major organisational role. The findings of Nield DCJ concerning the role of Mr Andres in the ecstasy conspiracy were both open and appropriate.

77 I do not detect any error in the approach of Nield DCJ to the question of parity between Mr Andres and Mr Chan. In my view, his Honour’s conclusions with respect to that issue were correct.

78 Nor do I consider that any error, adverse to Mr Andres, has been demonstrated in the application by Nield DCJ of the totality principle in sentencing him for the two conspiracies.

79 In my view, the sentences imposed upon Mr Andres for the two conspiracies were not manifestly excessive. The real question in this case is whether the sentences were manifestly inadequate so as to warrant the upholding of the Crown appeals. It is to that question which I now turn.

Principles Applicable to a Crown Appeal

80 In the course of delivering judgment in Mas Rivadavia, Wood CJ at CL (Adams J and Smart AJ agreeing) summarised the principles applicable to a Crown appeal upon sentence at 10-11 (paragraphs 63-64):

“In order to make the appeal good, it is necessary for the Crown to show that the sentences were so lenient as to demonstrate latent error, that is, to bring the appeal within the exceptional category of case that was referred to by Gaudron and Gummow JJ in Dinsdale v The Queen (2000) 202 CLR 321 at para 22; and by Spigelman CJ in R v Baker [2000] NSWCCA 85 at para 19; see also R v Tait and Bartley (1979) 24 ALR 473 at 475-476, and Everett v The Queen (1994) 181 CLR 295 at 299.

The constraints on Crown appeals, and the discretion which is inherent in their disposition, were summarised in my judgment in

R v Wall

[2002] NSWCCA 42 at para 70:

‘(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle ‘for the governance and guidance of courts having the duty of sentencing convicted persons’: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court:

R v Holder and Johnston

(1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence:

Dinsdale v The Queen

at para 62.”

81 The present Crown appeals fall to be determined in accordance with these principles.

Crown Appeal Concerning Mr Kardoulias

82 The Crown submissions concerning Mr Kardoulias before this Court pick up two arguments which were advanced in the Crown appeal concerning Mr Mas Rivadavia and others. First, the Crown drew Nield DCJ’s attention to the judgment of this Court in R v Wong (1999) 48 NSWLR 340 and submitted that the decision provided useful guidance as to an appropriate starting point, subject to qualifications – that the range of six to nine years for mid-level trafficable offences had been expressed as applicable to a courier or person low in the hierarchy (at 366, paragraph 142) and that Mr Kardoulias was significantly higher up the hierarchy. It was submitted that the Wong guideline range had assumed that an adjustment had been made reducing the sentence, by reason of the absence in New South Wales of a remission system, in accordance with s.16G Crimes Act 1914 (Cth), which provision was no longer applicable since its repeal on and from 16 January 2003.

83 As Wood CJ at CL observed in Mas Rivadavia at 10 (paragraph 60), Nield DCJ did not refer to the decision in Wong in his remarks on sentence or to the submissions of the Crown in relation to it.

84 The Crown submits, in the present case, that Nield DCJ made two specific errors which resulted in the imposition of a sentence which is manifestly inadequate, namely:

(a) having concluded that Mr Kardoulias’ role was higher than that of a courier or person low in the hierarchy, the sentence imposed did not reflect that role; and

85 The Crown does not challenge the findings of fact made by Nield DCJ concerning Mr Kardoulias. The Crown contends, however, that, in the light of those findings, the sentence imposed upon Mr Kardoulias was manifestly inadequate in respect of a person who:

(a) could not have his sentence discounted to reflect a plea of guilty;

(b) was found to be a, if not the, principal;

(c) was found, in that role, to have been responsible for the recruitment of others and to have given directions in furtherance of the conspiracy;

(i) the adoption of assumed names,

(ii) the use of codes,

(iv) the convening of meetings in public places late at night,

86 The Crown did not rely upon sentencing statistics arising from unrelated cases in support of the submission that the sentence imposed on Mr Kardoulias was manifestly inadequate. In essence, the Crown submitted that the Court could have regard to the sentencing guidelines contained in Wong, to the sentences imposed on co-offenders by the Court of Criminal Appeal in Mas Rivadavia and to the significant role of Mr Kardoulias in the conspiracy in concluding that the sentence imposed upon him was manifestly inadequate.

87 It was the Crown submission before Nield DCJ that the range in Wong assumed that an adjustment had been made having regard to the provisions of s.16G which then operated to provide a “discount” (generally one-third) in recognition of the fact that remissions were not available in New South Wales. The Crown submitted in the District Court that, with the repeal of s.16G in January 2003, there must necessarily be an increment applied to the Wong guideline range.

88 The Crown relies upon the fact that during the sentencing proceedings concerning Mr El-Akkaoui on 4 December 2003, Nield DCJ said (Transcript, page 33.24ff):

“It is a matter of common sense that the cases referred to by the Court in the Court of Criminal Appeal in

Wong and Leong

(sic) were cases determined when s.16G was in force, and those cases, or the sentences in those cases, were reduced roughly by a third from what it would have been otherwise. So as a matter of common sense even taking the cases referred to by the Court of Criminal Appeal in

Wong and Leong

as a guideline, they must be increased to take into account the effect of s.16G being applied.

89 In the course of the continuing discussion with Counsel, his Honour then observed (Transcript, page 33.49ff):

“But if one of the cases referred to by the Court of Criminal Appeal in

Wong and Leong

(sic) was ten years, we know that that was originally fifteen years head sentence because it was reduced because of s.16G to ten years, so it would be artificial to take the cases referred to by the Court of Criminal Appeal in

Wong and Leong

(sic) without recognising that those sentences were reduced because of the effect of s.16G.”

90 Finally, his Honour observed (Transcript, page 34.15ff):

“I would imagine without having read all of those decisions referred to by the Court of Criminal Appeal that the sentencing judge said that were it not for s.16G I would sentence this offender to a head sentence of fifteen years, but because of s.16G I reduce that sentence to a head sentence of 10 years. That is the way it worked at that time.”

91 In the course of his sentencing remarks on 11 February 2004, Nield DCJ did not refer to Wong or to the repeal of s.16G. The Crown submits that this Court should conclude that his Honour did not have regard to the repeal of s.16G in imposing sentence upon Mr Kardoulias.

92 It should be kept in mind that normally this Court will not find an error of principle from interchanges between the Bench and Counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision: R v Kain [2004] NSWCCA 143 at paragraph 56; R v A [2004] NSWCCA 292 at paragraph 12; R v Pham [2005] NSWCCA 94 at paragraph 11. Here, of course, it is the reverse argument which is being advanced. The Crown submits that his Honour stated the law correctly during his exchanges with Counsel on 4 December 2003, but that, as a result of his silence on the question during his remarks on sentence, his Honour failed to apply this principle in imposing sentence on Mr Kardoulias on 11 February 2004.

93 In approaching this submission, the Court should not conclude lightly that such a factor was overlooked on sentence by an experienced District Court Judge: R v Majors (1991) 27 NSWLR 264 at 268; R v Salameh (1991) 55 A Crim R 384 at 394.

94 Since Mr Kardoulias was sentenced on 11 February 2004, a number of decisions of this Court have resolved the proper approach to sentence following the repeal of s.16G: R v Studenikin (2004) 60 NSWLR 1; R v Kevenaar (2004) 148 A Crim R 155; R v Dujeu (2004) 146 A Crim R 121. Having referred to these decisions, Wood CJ at CL said in Mas Rivadavia at 16 (paragraphs 84-86):

“To the extent that regard is had to R v Wong , in the indicative way for which guideline sentences are intended, or to the extent that reference is made to pre s-16G and 19AG sentencing patterns, or to those which will now emerge following the repeal of those sections, it is important for Judges to bear in mind:

(a) That R v Wong was decided in a context where s 16G required an adjustment to be made, although that adjustment was not one that was mathematically and unequivocally linked to a discount of 30%, since there remained an area for sentencing discretion; and

(b) That it is no longer permissible to make an allowance for the s 16G factor;

It is desirable for the judges, when sentencing, to make it clear that these circumstances have been taken into account, if reference is made to earlier sentencing patterns, or to R v Wong .

Sentencing must remain an exercise for intuitive synthesis, in which any relevant guideline judgment and sentencing patterns are recognised as important parts of the material available, to be considered alongside any other relevant sentencing principles, the objective and subjective considerations of the instant case, and most significantly, the maximum sentence prescribed for the offence, since it is that which indicates the legislative intentions as to its seriousness.”

95 The Court in Mas Rivadavia did not find error in Nield DCJ’s remarks on sentence solely by reference to his Honour’s failure to mention Wong or the repeal of s.16G. However, the Court concluded that his Honour had fallen into error in sentencing Mr Mas Rivadavia, Mr El-Akkaoui and Mr Aksu in the following respect at 16-17 (paragraph 87):

“By reference to the pre existing sentencing pattern, and the range suggested in

R v Wong

for cases which were subject to the s 16G discount, it does appear to me that the sentences were lenient. Even allowing for the favourable subjective circumstances of these three offenders, insufficient weight seems to have been given to the punitive, retributive, and deterrent elements that should have been reflected, having regard to the objective criminality of these offenders. This was a well planned operation, that had been assessed as being capable of exploiting potential loopholes in the FedEx system. The case was one calling, in particular, for a very considerable deterrent element for the well recognised reasons analysed in the decisions such as

R v Wong and Ng

(1988) 39 A Crim R 1; and

R v Saxon

(1996) 86 A Crim R 353 as well as for a significant degree of punishment.”

96 Prima facie, the successful Crown appeals in Mas Rivadavia, and the increase in sentence of Mr Mas Rivadavia and Mr El-Akkaoui, raises a question concerning the adequacy of sentences imposed by Nield DCJ on co-offenders in the heroin conspiracy.

97 In supplementary written submissions filed by leave of the Court following the hearing, Mr Boulten SC referred to sentences imposed upon Mr Andres’ co-offenders in the ecstasy conspiracy. He did so as part of a submission that the sentence imposed upon Mr Kardoulias was not manifestly inadequate. On 18 March 2005, Dodd DCJ sentenced Rafael Cesan and Mr Mas Rivadavia in relation to their complicity in the ecstasy conspiracy. Both of these offenders had pleaded not guilty to that charge which involved a commercial quantity of ecstasy. They were found guilty by a jury on 28 June 2004. Dodd DCJ sentenced Mr Cesan to 13 years and six months’ imprisonment with a non-parole period of nine years. His Honour sentenced Mr Mas Rivadavia to a term of imprisonment of 11 years to date from 8 April 2006 with a new non-parole period of 10 years to commence on 8 April 2002. Neither the Crown nor the convicted persons have appealed to this Court with respect to the sentences imposed by Dodd DCJ.

98 Accordingly, Mr Boulten SC notes that Mr Mas Rivadavia’s total effective sentence with respect to both the heroin conspiracy and the ecstasy comprised imprisonment for 15 years with an effective non-parole period of 10 years. Dodd DCJ accepted a Crown submission that Mr Cesan played a role in the ecstasy conspiracy that was “more significant than that of Mas Rivadavia and was equal to the role played by Andres” (remarks on sentence, 18 March 2005, page 4). Dodd DCJ found that Mr Mas Rivadavia was “of less culpability than either Cesan or Andres but that [his] role nevertheless remained a significant one”.

99 Mr Boulten SC emphasises that the maximum penalty that applied to the ecstasy conspiracy was life imprisonment whilst the maximum penalty for the heroin conspiracy (to which Mr Kardoulias was a party) was imprisonment for 25 years.

100 Mr Boulten SC submits that Mr Kardoulias’ sentence bears a remarkable similarity to Mr Cesan’s sentence. It is contended that Mr Kardoulias played a role similar to, but not more culpable than, that played by Mr Cesan. The offence for which Mr Kardoulias fell to be sentenced related only to a trafficable quantity of heroin, whereas Mr Cesan’s offence related to a commercial quantity of ecstasy. Yet, Mr Kardoulias’ sentence is only 18 months less than the total effective sentence of 15 years imposed on Mr Mas Rivadavia in relation to his complicity in the two separate conspiracies.

101 In these circumstances, Mr Boulten SC submits that it is not open to the Crown to contend that the sentence of 13 years and six months imposed upon Mr Kardoulias was manifestly inadequate.

102 In response to these submissions, the Crown notes that the remarks on sentence of Dodd DCJ obviously do not reflect the entirety of the evidence which was adduced by the Crown at trial. His Honour found that Mr Cesan had played a substantial role in the ecstasy conspiracy. Importantly however, such role had been carried out in association with, and with the assistance of, Mr Andres. Dodd DCJ drew a clear distinction between the roles of Mr Cesan and Mr Andres on the one hand, and Mr Mas Rivadavia on the other.

103 More fundamentally, however, the Crown submitted that the sentences imposed by Dodd DCJ upon other persons, arising out of a quite separate and distinct conspiracy involving a different narcotic, are of a limited relevance in determining Mr Kardoulias’ appeal. The Crown submits, in any event, that the roles played by Mr Kardoulias in one conspiracy and Mr Cesan in a different conspiracy were not comparable. The evidence in the present case established, the Crown submits, that (unlike Mr Cesan), Mr Kardoulias carried out his particular role in the heroin conspiracy essentially on his own. To the extent that he was assisted by others in performing that role, such assistance took the form of those others doing no more than acting in accordance with the various directions that Mr Kardoulias had given to them. Moreover, there was no evidence that Mr Cesan took the elaborate steps which were taken by Mr Kardoulias to deliberately distance himself from co-conspirators in order to avoid detection. The Crown submitted that it was also significant that Mr Cesan’s activities extended over a period of some two months, as opposed to eight months in the case of Mr Kardoulias and the heroin conspiracy.

104 The Crown submits that it is apparent that it was factors such as these which led Nield DCJ to conclude that Mr Kardoulias was “a principal, if not the principal” in the heroin conspiracy. Whilst Dodd DCJ found that the role of Mr Cesan in the ecstasy conspiracy was “significant”, his Honour certainly did not make any finding that he played a role approaching that of a “principal” in the sense that such term was used in sentencing Mr Kardoulias. The Crown submits that such matters served to demonstrate that the culpability of Mr Kardoulias’ conduct far exceeded that of Mr Cesan. In these circumstances, the two roles are clearly distinguishable. The Crown submits that the sentence imposed upon Mr Cesan does not lead to a conclusion that the Crown appeal involving Mr Kardoulias should be dismissed.

105 Mr Boulten SC relied upon Postiglione v The Queen [1995-1996] 189 CLR 295 at 301 in support of the proposition that equal justice requires that like should be treated alike. If there are relevant differences, due allowance should be made for them.

106 It is open to Mr Boulten SC to rely upon the principle of parity with respect to the sentencing of Mr Kardoulias and Mr Andres for the heroin conspiracy in which they were co-offenders. Of course, the parity principle applies to the sentences of co-offenders: Lowe v The Queen (1984) 154 CLR 606; Jones v The Queen (1993) 67 ALJR 376. However, the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders who are not co-offenders simply because the two offenders may have similar characteristics and may have committed similar crimes: R v Morgan (1993) 70 A Crim R 368 at 371; R v F (2002) 132 A Crim R 308 at 315; R v George (2004) 149 A Crim R 38 at 47; R v Araya [2005] NSWCCA 283 at paragraphs 67ff. I do not consider that it is open to Mr Kardoulias to rely upon the sentences imposed upon Mr Cesan and Mr Mas Rivadavia for the ecstasy conspiracy in support of an argument concerning his own sentence for the heroin conspiracy.

107 In my opinion, the submissions which Mr Boulten SC advances by reference to sentences imposed upon Mr Cesan and Mr Mas Rivadavia for the ecstasy conspiracy do not assist either Mr Kardoulias or the Crown with respect to the appeals presently before this Court.

108 In Mas Rivadavia, the Court did not find a specific error on the part of Nield DCJ resulting from his Honour’s failure to refer to Wong and to the repeal of s.16G. Rather, the Court approached the matter upon the basis that, while patent error was not shown, the sentences imposed upon Mr Mas Rivadavia and Mr El-Akkaoui were manifestly lenient and lay outside the proper range for offences of the objective criminality that was involved: Mas Rivadavia at 19 (paragraph 101).

109 In my view, a similar approach is appropriate with respect to the Crown appeal concerning Mr Kardoulias arising from the judgment of Nield DCJ on 11 February 2004, being the same judgment as was considered by this Court in Mas Rivadavia. I do not consider that patent error is demonstrated in his Honour’s failure to refer to Wong and the repeal of s.16G. Rather, the question is whether the sentence imposed upon Mr Kardoulias was manifestly inadequate and was outside the proper range for offences of the objective criminality that was involved.

110 I am not persuaded that the sentence imposed upon Mr Kardoulias lay outside the proper range of sentence for the offence and the offender. The sentence was significantly greater than those imposed upon Mr Mas Rivadavia and Mr El-Akkaoui even after they had been resentenced by the Court of Criminal Appeal. The differential between the sentences makes due allowance for the different levels of criminality and other points of distinction between the cases. I propose that the Crown appeal against sentence concerning Mr Kardoulias ought be dismissed.

Crown Appeal Concerning Mr Andres

111 The Crown submitted that the sentences imposed by Nield DCJ with respect to Mr Andres for each of the conspiracies was manifestly inadequate. In particular, it was submitted that:

(a) having concluded that the role of Mr Andres was a senior one in each conspiracy, his Honour imposed sentences which did not reflect that finding; and

Studenikin

112 The Crown accepted the findings made by Nield DCJ concerning the role of Mr Andres in both conspiracies. However, it was submitted that the sentences were manifestly inadequate particularly having regard to the findings of Nield DCJ:

(a) that Mr Andres was (along with Mr Kardoulias) the “main participant” in the heroin conspiracy, and (along with Mr Cesan) the “main participant” in the ecstasy conspiracy;

(b) that Mr Andres had recruited both Mr Mas Rivadavia and Mr El-Akkaoui to be his “lieutenants” for the purposes of the heroin conspiracy;

(c) that the major decisions in relation to the heroin conspiracy were made by Mr Kardoulias, either alone or jointly with Mr Andres;

“his expectation of significant financial reward”

113 In respect of the ecstasy conspiracy, the sentencing pattern for such offences were considered by this Court in R v Schofield [2003] NSWCCA 3 and Kevennar, above. The Crown submitted that the primary factor in determining the appropriate sentence in respect of the ecstasy conspiracy remains the statutory regime set out in s.235 Customs Act 1901 (Cth) and, in particular, the maximum penalty of life imprisonment. Reliance was placed upon the statement of Wood CJ at CL (Sully and Simpson JJ agreeing) in R v Bimahendali (1999) 109 A Crim R 355 at 361-2:

“It is true that ecstasy has been consistently treated by this Court as a mid-range drug:

Budiman

(1998) 102 A Crim R 411;

Moore and Wiebe

(unreported, Court of Criminal Appeal, NSW, 11 August 1992);

Bowers

(1997) 97 A Crim R 461;

Bushell

(unreported, Court of Criminal Appeal NSW, 7 August 1998);

Spillane

[1999] NSWCCA 280 and Bourel (unreported, Court of Criminal Appeal, NSW, 11 December 1998).

…

Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ.”

114 In sentencing Mr Andres on 27 May 2004, Nield DCJ referred to the repeal of s.16G and the decision of this Court in Studenikin (remarks on sentence, 27 May 2004, pages 12-15). However, his Honour did not indicate the way in which the repeal of s.16G was taken into account in imposing sentences upon Mr Andres with respect to both conspiracies.

115 In the end result, the Crown submits, the sentence imposed with respect to the heroin conspiracy fell within the Wong guideline which was itself inappropriate having regard to his Honour’s findings as to the substantial role played by Mr Andres in that conspiracy. It was recognised in Mas Rivadavia at 12 (paragraph 72) that the repeal of s.16G will normally lead to the imposition of a heavier sentence than that discernible in the pre-repeal pattern of sentencing.

116 In relation to Mr Andres, it is the fact that Nield DCJ referred to the repeal of s.16G and the decision in Studenikin in his remarks on sentence of 27 May 2004. In these circumstances, it is more difficult for the Crown to make good a submission that his Honour did not have regard to the repeal of s.16G in imposing sentence. The fact that his Honour did not refer to the precise way in which he used the repeal of s.16G in sentencing Mr Andres does not, in my view, strengthen the Crown’s submission on this point. Rather, as with the decision of this Court in Mas Rivadavia, I consider that the Crown appeal is to be determined by looking at the sentences imposed by his Honour to determine if they were manifestly inadequate. I do not consider that patent error has been shown in his Honour’s remarks on sentence delivered on 27 May 2004.

117 In approaching the question whether error has been established by the Crown in the sentence imposed upon Mr Andres with respect to the heroin conspiracy, it is appropriate to have regard to the decision of this Court in Mas Rivadavia in which Crown appeals were upheld and sentences for co-offenders were increased. The effect of the decision in that case was that the non-parole periods imposed upon Mr Mas Rivadavia and Mr El-Akkaoui for the heroin conspiracy were a little less than that imposed upon Mr Andres for the same conspiracy. Given the more substantial role of Mr Andres in the heroin conspiracy, I am satisfied that the Crown has demonstrated that the sentence imposed upon Mr Andres for the heroin conspiracy was manifestly inadequate, being outside the proper range for offences of the objective criminality that was here involved: Mas Rivadavia at 19 (paragraph 101).

118 There is force in the Crown submission that the sentence imposed on Mr Andres for the ecstasy conspiracy was inadequate. This was a separate offence punishable by life imprisonment. In my view, the sentence imposed upon Mr Andres for the ecstasy conspiracy was outside the proper range of sentence for such an offence.

119 Counsel for Mr Andres submitted that the Court should refrain from intervening on the Crown appeal upon discretionary grounds. Reliance was placed upon the delay between sentencing in the District Court (27 May 2004) and the hearing in this Court (11 August 2005). A Crown appeal was lodged and originally listed for hearing in this Court on 11 February 2005. It did not proceed at that time because Mr Kardoulias’ conviction appeal was unresolved. The hearing of the Crown appeal concerning Mr Andres was adjourned, by consent. I do not consider that delay, in the circumstances, should lead to the discretionary refusal by this Court to proceed to resentence Mr Andres.

120 Accordingly, this Court should intervene to quash the sentences imposed upon Mr Andres and to resentence him for both offences.

121 Having determined the Crown appeals should be allowed in relation to the Andres’ appeals, I will approach the determination of sentence in accordance with the principles referred to earlier in this judgment – the sentences to be imposed by this Court will be less than those which should have been imposed by the sentencing court and will be towards the lower end of the available range of sentence.

Summary of Conclusions

122 In summary, I have reached the view that the sentence imposed upon Mr Kardoulias for the heroin conspiracy is not manifestly excessive and does not reveal any error on the part of the learned sentencing judge. No lesser sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.

123 With respect to the Crown appeal concerning Mr Kardoulias, I am not satisfied that the Crown has demonstrated that the sentence was manifestly inadequate. A significant differential exists between the sentence imposed upon Mr Kardoulias and the sentences imposed upon Mr Mas Rivadavia and Mr El-Akkaoui by this Court. No patent error had been demonstrated by the Crown with respect to this sentence. The Crown appeal ought be dismissed.

124 With respect to Mr Andres, I am not satisfied that any error has been demonstrated, which operated adversely to Mr Andres in the sentencing proceedings before Nield DCJ. Nor am I satisfied that the sentence or sentences imposed by his Honour were manifestly excessive. I am not satisfied that any lesser sentence is warranted in law and should have been passed: s.6(3).

125 I am satisfied that the Crown appeal should be allowed and the sentences increased in the case of Mr Andres. The sentence imposed for the heroin conspiracy was manifestly inadequate, both by reference to the sentences imposed by this Court on Mr Mas Rivadavia and Mr El-Akkaoui and the sentence imposed by Nield DCJ on Mr Kardoulias. The Crown has made good its challenge that, upon the findings made concerning the objective criminality of Mr Andres in the heroin conspiracy, a greater sentence was warranted.

126 Given that Mr Andres pleaded guilty to two separate and substantial conspiracies, the total sentence imposed upon him was, in my view, inadequate. The heroin conspiracy was punishable by a maximum penalty of imprisonment for 25 years and the ecstasy conspiracy by a maximum penalty of life imprisonment. Mr Andres played a substantial organisational role in both conspiracies. Although a strong subjective case was presented on behalf of Mr Andres, and he pleaded guilty to both offences, it was necessary that the total period of imprisonment by way of head sentence and non-parole period reflect the serious objective criminality involved in his two distinct offences. In my view, the sentences imposed at first instance did not achieve this purpose and lay outside the appropriate range of penalty for the offences in question.

Resentencing Mr Andres

127 In resentencing Mr Andres, I have regard to the factors referred to in s.16A Crimes Act 1914 (Cth).

128 With respect to the heroin conspiracy, it is appropriate to take as a starting point the head sentence of imprisonment for 13 years and six months imposed on Mr Kardoulias. It was not submitted on appeal that the discount of 15% resulting from the plea of guilty ought be varied and I apply it for the purpose of resentencing Mr Andres. Having regard to that discount, together with the favourable subjective findings made by Nield DCJ, I consider that a head sentence of imprisonment for 11 years is appropriate for the heroin conspiracy, to commence on 9 April 2002.

129 The ecstasy conspiracy represents a more serious offence punishable by life imprisonment. Having regard to the significant organisational role of Mr Andres in this offence, the objective seriousness of the offence is substantial. A sentence of imprisonment for 10 years as imposed in the District Court is manifestly inadequate. I note that Dodd DCJ imposed a sentence of 11 years’ imprisonment upon Mr Mas Rivadavia who, on the findings made by Nield DCJ and Dodd DCJ, played a lesser role in the offence than Mr Andres. I bear in mind, of course, that Mr Mas Rivadavia pleaded not guilty and was convicted after trial. Mr Andres pleaded guilty at the earliest opportunity to this charge so as to attract a discount of 25%, a finding which was not challenged on appeal to this Court.

130 After making allowance for the 25% discount for the plea of guilty and the other subjective matters found in Mr Andres’ favour by Nield DCJ, I consider that a head sentence of imprisonment for 12 years and six months is appropriate for the ecstasy conspiracy.

131 I turn then to issues of concurrence, accumulation and totality: Pearce v The Queen (1998) 194 CLR 610 at 624. There were two distinct conspiracies involving different drugs and, to an extent, different co-conspirators. Mr Kardoulias was involved in the heroin conspiracy but not the ecstasy conspiracy. Mr Cesan was involved in the ecstasy conspiracy but not the heroin conspiracy. Mr Mas Rivadavia was involved in both conspiracies, but to a lesser extent than Mr Andres. I note that Mr Mas Rivadavia, for both conspiracies, received a total sentence of imprisonment for 15 years with a non-parole period of 10 years to date from 8 April 2002. He was sentenced to imprisonment for eight years and three months for the heroin conspiracy (by the Court of Criminal Appeal) and imprisonment for 11 years for the ecstasy conspiracy (by Dodd DCJ), with two years and nine months of the sentences being concurrent.

132 There are certain overlapping features involving the role of Mr Andres in the two conspiracies. In both cases, he took advantage of his senior position in Federal Express to facilitate the delivery and collection of drugs. There was a substantial overlap in time between the two conspiracies. The heroin conspiracy attracted a maximum penalty of imprisonment for 25 years whilst the ecstasy conspiracy attracted the higher maximum penalty of imprisonment for life. It is appropriate to have regard to the sentences imposed upon Mr Mas Rivadavia for both conspiracies in fixing sentences for Mr Andres for the same offences. Mr Andres’ pleas of guilty and the findings of Nield DCJ concerning his contrition, prior good character and prospects of rehabilitation are also relevant to the issues of concurrence, accumulation and totality. In addition, I bear in mind that this is a Crown appeal and that the sentences to be imposed at this stage will lie towards the bottom of the range of appropriate sentences for the offences in question.

133 In all the circumstances, it is appropriate that the sentences be cumulative for four years and concurrent for seven years. The total period of imprisonment which I propose for the two conspiracies is one of 16 years and six months to commence on 9 April 2002 and to expire on 8 October 2018.

134 I am required to fix a single non-parole period for the two offences: s.19AB(1) Crimes Act 1914 (Cth). Bringing to bear, once again, all of the matters which I have taken into account in determining the length of each sentence and the issues of concurrence, accumulation and totality, I consider that a non-parole period of 11 years is appropriate, to commence on 9 April 2002.

135 The orders that I propose are as follows:

Spiros Kardoulias

(1) With respect to the application by Mr Kardoulias for leave to appeal against sentence, grant leave, but dismiss the appeal.

(2) Crown appeal dismissed.

Rafael Leonardo Andres

(1) With respect to sentences imposed for the heroin conspiracy and ecstasy conspiracy, grant leave to Mr Andres to appeal, but dismiss the appeal.

(2) Crown appeal allowed with respect to sentences imposed by Nield DCJ on 27 May 2004 for the heroin conspiracy and the ecstasy conspiracy.

(3) Sentence imposed in the District Court for the heroin conspiracy quashed and, in lieu thereof, Mr Andres is sentenced to imprisonment for 11 years to commence on 9 April 2002 and to expire on 8 April 2013.

(4) Sentence imposed in the District Court for the ecstasy conspiracy quashed, and, in lieu thereof, Mr Andres is sentenced to imprisonment for 12 years and six months to commence on 9 April 2006 and to expire on 8 October 2018.

(5) Specify a non-parole period of 11 years to commence on 9 April 2002 and to expire on 8 April 2013.

(6) The earliest date upon which Mr Andres will be eligible for parole is 8 April 2013.

136 ROTHMAN J: I agree with Johnson J.

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Citations

Kardoulias v R [2005] NSWCCA 456

Most Recent Citation

Director of Public Prosecutions v Thomas [2017] VCC 1278

Cases Citing This Decision

30

Cornwell v The Queen [2007] HCA 12

Clayton v The Queen [2006] HCA 58

JONATHON HAZELTON and CIVIL AVIATION SAFETY AUTHORITY [2010] AATA 693

Cases Cited

34

Statutory Material Cited

3

R v Kardoulias [2005] NSWCCA 150

R v Mas Rivadavia [2004] NSWCCA 284

R v Khouzame [2000] NSWCCA 505

Cited Sections

CITATION:	Kardoulias and Andres v Regina [2005] NSWCCA 456
HEARING DATE(S):	11 August 2005
JUDGMENT DATE:	23 December 2005
JUDGMENT OF:	Simpson J at 1; Johnson J at 2; Rothman J at 136
DECISION:	Refer to paragraph 135 of judgment.

CATCHWORDS:	SENTENCING - conspiracy to import prohibited drug (heroin) - conspiracy to import prohibited drug (ecstasy) - appeal against severity - alleged errors in factual findings and sentences said to be manifestly excessive - no error established and sentences held not to be manifestly excessive - Crown appeals against sentences - Kardoulias' sentence held not to be manifestly inadequate - Andres' sentences held to be manifestly inadequate - Andres resentenced and sentences increased.
LEGISLATION CITED:	Customs Act 1901 (Cth) Criminal Appeal Act 1912 Crimes Act 1914 (Cth)
CASES CITED:	R v Kardoulias [2005] NSWCCA 150 R v Mas Rivadavia and Ors (2004) 149 A Crim R 1; [2004] NSWCCA 284 Pearce v The Queen (1998) 194 CLR 610 R v Stanbouli (2003) 141 A Crim R 531 House v The King (1936) 55 CLR 499 R v Khouzame [2000] NSWCCA 505 R v Merritt (2004) 59 NSWLR 557 The Queen v Olbrich [1999] 199 CLR 270 R v Wong (1999) 48 NSWLR 340 R v Kain [2004] NSWCCA 143 R v A [2004] NSWCCA 292 R v Pham [2005] NSWCCA 94 R v Majors (1991) 27 NSWLR 264 R v Salameh (1991) 55 A Crim R 384 R v Studenikin (2004) 60 NSWLR 1 R v Kevenaar (2004) 148 A Crim R 155 R v Dujeu (2004) 146 A Crim R 121 Postiglione v The Queen [1995-1996] 189 CLR 295 Lowe v The Queen (1984) 154 CLR 606 Jones v The Queen (1993) 67 ALJR 376 R v Morgan (1993) 70 A Crim R 368 R v F (2002) 132 A Crim R 308 R v George (2004) 149 A Crim R 38 R v Araya [2005] NSWCCA 283 R v Schofield [2003] NSWCCA 3 R v Bimahendali (1999) 109 A Crim R 355 Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Spiros Kardoulias (Applicant/Respondent) Rafael Leonardo Andres (Applicant/Respondent) Regina (Appellant/Respondent)
FILE NUMBER(S):	CCA 2004/1873; 2004/1948; 2004/2030; 2005/383
COUNSEL:	Mr P Boulten SC (for Spiros Kardoulias) Mr I McLachlan (for Rafael Leonardo Andres) Mr G Bellew (for the Crown)
SOLICITORS:	Hardin Law (for Spiros Kardoulias) Watsons (for Rafael Leonardo Andres) Commonwealth Director of Public Prosecutions ( for the Crown)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0047 (Spiros Kardoulias) 03/11/1106 (Rafael Leonardo Andres)
LOWER COURT JUDICIAL OFFICER:	Nield DCJ