Marlan v The Queen
[2003] WASCA 184
•15 AUGUST 2003
MARLAN -v- THE QUEEN [2003] WASCA 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 184 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:88/2002 | 4 JUNE 2003 | |
| Coram: | MALCOLM CJ MURRAY J ANDERSON J | 15/08/03 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MAULANA MARLAN THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Application for leave to appeal against sentence Whether sentences imposed for possession and attempted possession of two quantities of methylamphetamines manifestly excessive Quantity of drugs possessed was 79.3 grams pure Quantity of drugs attempted to be possessed was 1.9245 kilogram pure |
Legislation: | Crimes Act 1914 (Cth), s 16A, s 19AB Customs Act 1901 (Cth), s 233B(1)(c), s 235 |
Case References: | Bellissimo v The Queen (1996) 84 A Crim R 465 Dinsdale v The Queen (2000) 202 CLR 321 Heryadi v The Queen (1998) 19 WAR 383 Olbrich v The Queen (1999) 199 ALR 270 Quach v The Queen [1999] WASCA 210 R v Allpass (1993) 72 A Crim R 561 R v Clarke (1996) 2 VR 520 R v Thomson (2000) 49 NSWLR 383 Soewandi v The Queen [2002] WASCA 315 Wong v The Queen (2001) 207 CLR 584 Cameron v The Queen (2002) 209 CLR 339 Darwell v The Queen (1997) 94 A Crim R 35 Everett v The Queen (1994) 181 CLR 295 Johnson v The Queen [2002] WASCA 102 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 Power v The Queen (1974) 131 CLR 623 R v Oancea (1990) 51 A Crim R 141 R v Shrestha (1991) 173 CLR 48 R v Wright [2003] WASCA 56 Siganto v The Queen (1998) 194 CLR 656 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MARLAN -v- THE QUEEN [2003] WASCA 184 CORAM : MALCOLM CJ
- MURRAY J
ANDERSON J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Application for leave to appeal against sentence - Whether sentences imposed for possession and attempted possession of two quantities of methylamphetamines manifestly excessive - Quantity of drugs possessed was 79.3 grams pure - Quantity of drugs attempted to be possessed was 1.9245 kilogram pure
Legislation:
Crimes Act 1914 (Cth), s 16A, s 19AB
Customs Act 1901 (Cth), s 233B(1)(c), s 235
(Page 2)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Ms H E Prince
Respondent : Mr H G Dembo
Solicitors:
Applicant : Andree Horrigan
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bellissimo v The Queen (1996) 84 A Crim R 465
Dinsdale v The Queen (2000) 202 CLR 321
Heryadi v The Queen (1998) 19 WAR 383
Olbrich v The Queen (1999) 199 ALR 270
Quach v The Queen [1999] WASCA 210
R v Allpass (1993) 72 A Crim R 561
R v Clarke (1996) 2 VR 520
R v Thomson (2000) 49 NSWLR 383
Soewandi v The Queen [2002] WASCA 315
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
Cameron v The Queen (2002) 209 CLR 339
Darwell v The Queen (1997) 94 A Crim R 35
Everett v The Queen (1994) 181 CLR 295
Johnson v The Queen [2002] WASCA 102
Lowe v The Queen (1984) 154 CLR 606
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Postiglione v The Queen (1997) 189 CLR 295
Power v The Queen (1974) 131 CLR 623
R v Oancea (1990) 51 A Crim R 141
R v Shrestha (1991) 173 CLR 48
R v Wright [2003] WASCA 56
Siganto v The Queen (1998) 194 CLR 656
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1 MALCOLM CJ: This is an application for leave to appeal against sentence. The applicant was convicted in the Supreme Court on 23 April 2002 upon his plea of guilty to two offences, namely, that he attempted to obtain possession of a trafficable quantity of methylamphetamine and that he had possession of a trafficable quantity of methylamphetamine, commonly known as "ice". The trafficable quantity of the drug as determined by Sch VI of the Customs Act 1901 (Cth) ("Customs Act") is 2 grams. In relation to the offence of attempted possession, the quantity of the drug was 1.9245 kilograms pure. The quantity the subject of the charge of possession was 79.3 grams pure. Pursuant to s 235 of the Customs Act, the applicant was liable to a maximum penalty of imprisonment for 25 years or a fine of $110,000 or both in respect of each offence. Section 233B(1)(c) of the Customs Act provides that the attempt constitutes a substantive offence.
2 The applicant was sentenced in the District Court by his Honour Judge L A Jackson on 1 May 2002 to a term of imprisonment for 14 years in respect of the attempt. The sentence was directed to commence on 18 May 2001, being the date on which the applicant was arrested. His Honour fixed a non-parole period of 8 years. In respect of the second offence, the applicant was sentenced to a term of imprisonment for 3 years to be served concurrently. A single non-parole term of 8 years was set in respect of both offences as required by s 19AB of the Crimes Act 1914 (Cth) ("Crimes Act").
3 The application for leave to appeal is made on the single ground that the sentences were manifestly excessive.
4 On 17 May 2001, two co-offenders of the applicant, Ms Iskandar and Mr Soewandi, imported respectively 902.9 and 1021.6 grams of pure methylamphetamine. Ms Iskandar also had two small packets containing 79.3 grams pure of the drug. It had been arranged for the applicant and a third person, one Chua, to collect the drugs. Ms Iskandar and Mr Soewandi were apprehended at Perth Airport. They co-operated with the Federal police and agreed to participate in a controlled delivery.
5 The two quantities of methylamphetamine were substituted with a powder. Iskandar and Soewandi went to the Burswood Hotel and waited there for the applicant. On the next morning, 18 May 2001 at 9.50 am, the applicant went to their hotel room. Some 10 minutes later Chua also entered the room. There, the applicant and Chua were given the total of 1.9245 grams of inert powder, believing it to be the methylamphetamine. Each was given one of the small packets of methylamphetamine. Shortly
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- afterwards, police raided the room, finding the applicant and Chua about to leave. Chua was carrying the bag containing the inert powder.
6 His Honour referred to the general principles of sentencing as set out in s 16A of the Crimes Act. As his Honour rightly pointed out, the importation of methylamphetamine is a serious offence and the offence of possessing or attempting to possess such a drug is no less serious. His Honour went on to say:
"Except in extraordinary circumstances a sentence of imprisonment is an appropriate penalty for such offences. Methylamphetamine causes untold damage and misery to those addicted to it. I can say from personal observations as a Judge of this Court that offences such as robbery and burglary are often committed for the purpose of obtaining money or property to be exchanged for drugs such as methylamphetamine. The courts have a duty to impose penalties to punish offenders and to deter others from so offending."
7 There is no criticism of his Honour's approach to sentencing in this context which, in my opinion, was entirely correct. Iskandar and the applicant had known each other for some months. Each of them contended that the other was the instigator of the offences. In the result, his Honour was unable to distinguish their respective involvements. The prosecution had submitted that the applicant was a step higher in the chain than Iskandar and had greater culpability. His Honour did not accept that there was sufficient evidence to draw that conclusion.
8 It was submitted to the learned Judge on behalf of the applicant that each of the applicant, Iskandar and Soewandi were to be paid $10,000 for their participation. It was also submitted to his Honour that the same starting point for sentence as Iskandar ought to be adopted. Both Iskandar and Soewandi pleaded guilty on the fast-track system and were sentenced to imprisonment. The starting point for their sentences was 14 years and 13 years respectively. The lower starting point in the case of Soewandi was a reflection of the fact that he was recruited by Iskandar and his culpability was slightly less.
9 Neither Iskandar or Soewandi were charged with being knowingly concerned in each other's offences. Iskandar imported 902.9 grams of pure methylamphetamine as well as two smaller packages containing 79.3 grams of pure methylamphetamine. Soewandi imported 1021.6 grams of pure methylamphetamine. Iskandar was originally
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- sentenced to imprisonment for 9½ years with a non-parole period of 5 years. The sentence was imposed by way of the "two tier" approach disapproved by the High Court in Wong v The Queen (2001) 207 CLR 584 at 611 – 612, [74] – [75] by Gaudron, Gummow and Hayne JJ, noting in particular that the review of authorities by Spigelman CJ in R v Thomson (2000) 49 NSWLR 383 at 396 – 411, [54] – [113], Gaudron, Gummow and Hayne JJ commented at 611 – 612, [76], that:
"As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach: R v Geddes (1936) 36 SR(NSW) 554 at 555 per Jordan CJ; R v Gallagher (1991) 23 NSWLR 220 at 227-228 per Gleeson CJ, 233-234 per Hunt J; R v Beavan unreported, Court of Criminal Appeal of the Supreme Court of New South Wales, 22 August 1991; Winchester (1992) 58 A Crim R 345 at 350 per Hunt CJ at CL; R v Williscroft [1975] VR 292 at 300; R v Young [1990] VR 951 at 955-956; R v Perrier (No 2) [1991] 1 VR 717; O'Brien (1991) 55 A Crim R 410; R v Nagy [1992] 1 VR 637; R v Harman [1989] 1 Qd R 414 at 421 per de Jersey J; R v Corrigan [1994] 2 Qd R 415; Pavlic v The Queen (1995) 5 Tas R 186; cf R v Sutherland unreported, Court of Criminal Appeal of the Supreme Court of South Australia, 16 November 1992; R v Harris; R v Simmonds (1992) 59 SASR 300; Verschuren v The Queen (1996) 17 WAR 467. In this court, McHugh and Hayne JJ, in dissenting opinions in AB v R ((1999) 198 CLR 111 at 121-122 [15]-[18] per McHugh J, 156 [115] per Hayne J) expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view: AB v The Queen (1999) 198 CLR 111 at 148-149 [99]-[100]. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which
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- Gleeson CJ referred in R v Gallagher ((1991) 23 NSWLR 220 at 228) when he said that:
'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.'
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.
The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.
Numerical guidelines either take account of only some of the relevant considerations or would have to be so complicated as to make their application difficult, if not impossible (see, for example, the cubic representation of such a framework in Lovegrove, 'Writing Quantitative Narrative Guideline Judgments: A Proposal', [2001] Criminal Law Review 265 at 279; cf Alschuler, 'The Failure of Sentencing Guidelines: A Plea for Less Aggregation', (1991) 58 University of Chicago Law Review 901; Freed, 'Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers', (1992) 101 Yale Law Journal 1681). Most importantly of all, numerical guidelines cannot address considerations of proportionality (Veen v The Queen [No 2]
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- (1988) 164 CLR 465). Their application cannot avoid outcomes which fail to reflect the circumstances of the offence and the offender (with absurd and unforeseen results) if they do not articulate and reflect the principles which will lead to the just sentencing of offenders whose offending behaviour is every bit as diverse as is their personal history and circumstances."
10 Iskandar appealed against her sentence. It was held by Olsson AUJ, with whom Steytler J and White AUJ agreed, that the starting point of 14 years was appropriate. It was not contended otherwise. After considering all of the relevant mitigating factors, the head term was reduced on appeal to 7 years with a non-parole period of 3 years and 7 months. As a result of the appeal, the starting point was effectively reduced by 50 per cent to take account of past co-operation, personal circumstances, subsequent intervening health problems and future co-operation.
11 Soewandi was sentenced to imprisonment for 11 years with a non-parole period of 5½ years. It was said that the starting point for him was imprisonment for 13 years being 1 year less than Iskandar given the fact that the latter had recruited Soewandi. On appeal, this Court allowed the appeal on the grounds of parity and an insufficient discount for an early plea of guilty and past co-operation. Soewandi was resentenced to a term of imprisonment of 6 years and 3 months with a non-parole period of 3 years and 1 month: Soewandi v The Queen [2002] WASCA 315.
12 The learned Judge who sentenced the applicant in the present case was clearly aware of the decision of the High Court in Wong (supra). His Honour sentenced the applicant on the intuitive synthesis approach and was careful not to adopt the two-tier approach. His Honour was also fully aware of the sentences imposed on Iskandar and Soewandi, and the mitigating circumstances which had not been taken into account in their cases.
13 Whilst the quantity of the drug imported is not necessarily the most important factor in sentencing, it is, as counsel for the respondent contended, a very important factor. It was relevant that the applicant pleaded guilty to attempting to possess the total amount of the drug imported, which was approximately double the amount of each of the individual importations by Iskandar and Soewandi. This was properly taken into account by the learned sentencing Judge. His Honour also took into account the applicant's plea of guilty, but noted that this was made relatively late in the proceedings and not on the fast-track system. It is
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- evident from his Honour's sentencing remarks that all other relevant facts and the general principles of sentencing Commonwealth offenders, as set out in 16A of the Crimes Act, were taken into account.
14 It was submitted on behalf of the applicant that while Iskandar and Soewandi pleaded guilty on the fast-track system, both had been caught "red-handed" with the drugs on their bodies. While the applicant had not pleaded guilty at the first opportunity, his plea was entered some months prior to the trial and clearly assisted in the administration of justice and amounted to an indication of remorse. I accept that the plea assisted in the administration of justice, but whether it amounted to an indication of remorse or merely regret at being apprehended is, perhaps, an open question.
15 In passing sentence, his Honour said:
"Iskandar and you had been acquainted for some months. Each of you says the other was the instigator. I am unable to distinguish your respective involvements. The Commonwealth DPP argued you were the next step up in the chain and therefore have greater culpability. I do not accept there is sufficient evidence to draw that conclusion. Your counsel says you were to be paid $10,000 for your role, so were Iskandar and Soewandi. Your counsel argued that the same starting point for sentence as Iskandar ought to be adopted. Iskandar and Soewandi both pleaded guilty on the fast-track system[. T]hey were sentenced to imprisonment.
The starting points for their sentences was 14 and 13 years respectively. Soewandi['s] slightly lower starting point was a reflection of the fact that he was recruited by Iskandar and his culpability [was] therefore slightly less. After appeal, Iskandar's sentence was reduced to 7 years. The information given to the court was that Iskandar had not only pleaded guilty on the fast-track but also had co-operated with the authorities and had given the authorities significant information, the details of which are unknown to me because they were not made public. Soewandi's sentence of 13 years was reduced to 11 years to reflect … the fast-track plea of guilty.
I am advised that Soewandi's sentence is the subject of an appeal but that decision has not yet been handed down. Parity in sentencing co-offenders is an important principle of criminal
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- justice. It is therefore appropriate to consider the sentence imposed upon Iskandar and its relationship to you. The sentencing Judge started at 14 years and then using the two-tier system made certain deductions. The Court of Criminal Appeal considered the deductions inadequate and ultimately came to a deduction of 50 per cent for mitigating circumstances. There was no criticism of the starting point."
16 His Honour then noted the criticism of the two-tier approach to sentencing by the High Court in Wong (supra). In doing so, his Honour said:
"I have to say, I have some difficulty in understanding how to apply such a concept. I of course am bound by Wong and accordingly in this case will depart from the practice that has always been applied in this court of explaining the effect of aggravating circumstances and mitigating circumstances upon the sentence to be imposed, and in particular of identifying as a proportion a deduction for a plea of guilty.
I do, however, consider it appropriate to refer to the sentencing of Iskandar because of the important principles of parity. The starting point for Iskandar was 14 years. Your counsel argues that that should be the same for you."
17 His Honour did note, however, that while the amount of drug involved was not determinative of the sentence, it is a relevant factor because:
"The more drug involved, the greater the potential harm to be done in the community, both to those who use the drug and those who commit offences for the purposes of obtaining money to pay for it."
18 His Honour went on to say:
"Following Wong, I do not expressly state the extent to which, in the absence of other factors, a sentence to [be] imposed upon you would be higher than the starting point upon which Iskandar's sentence was calculated. There are a number of mitigating factors. You have no previous convictions. You have pleaded guilty. A guilty plea is mitigatory because it is an acceptance of guilt, an act of remorse or contrition. Such remorse is most obvious, as was the case for Iskandar and
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- Soewandi, when the admissions were made immediately and a plea entered at the first opportunity.
You denied any involvement and pleaded guilty only relatively late in the proceedings. I note the trial for yourself and Chua was listed for October of this year. You were therefore entitled to some credit for your plea but not to the same extent as the others."
19 His Honour noted that the applicant had not co-operated in the same way as Iskandar and Soewandi who had agreed to participate in a controlled delivery, as a result of which the applicant and Chua were apprehended. No such offer was made by the applicant. It was noted that Iskandar had apparently given further co-operation as a result of which an even more substantial reduction of her sentence seemed to be appropriate.
20 So far as the applicant was concerned, the learned Judge said:
"Following Wong, I do not express in figures the extent to which mitigating factors influence the appropriate sentence. My instinctive synthesis is that the mitigating factors are balanced by the greater amount of amphetamines with respect to which you have been charged. I consider 14 years' imprisonment to be the appropriate sentence in this case."
21 His Honour then fixed a non-parole period of 8 years. So far as the second count on the indictment was concerned, a concurrent sentence of imprisonment for 3 years was imposed.
22 It was contended by counsel for the applicant that in imposing the sentence of imprisonment for 14 years on the applicant, the learned Judge based the sentence solely on the weight of methylamphetamine of which the applicant was convicted of attempting to possess. Consequently, it was submitted that, in effect, his Honour gave no discount for the applicant's plea of guilty or other matters. Further, it was submitted that his Honour did not take into account the findings made at sentencing of the two co-offenders that Iskandar had recruited Soewandi and, by inference, knew about and had been instrumental in the offence committed by Soewandi when determining an appropriate starting point for the sentencing of the applicant.
23 While the quantity of the drug involved is not necessarily the most important factor in sentencing in such cases as the present, it is a very significant factor. The applicant's offences involved an attempt to possess
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- the total amount of the drug imported by Iskandar and Soewandi. In my opinion, his Honour was clearly entitled to take this into account.
24 His Honour also acknowledged that the applicant had pleaded guilty, while noting that the plea had been entered at a relatively late stage in the proceedings, and not on the fast-track.
25 The Crown submitted that the sentence imposed was not manifestly excessive. It was contended that the sentences for each of the offences were within the range of a sound discretionary judgment and that this Court should not substitute its own opinion for that of the sentencing Judge merely because it considered the sentence excessive: R v Clarke (1996) 2 VR 520 at 522 per Charles JA; R v Allpass (1993) 72 A Crim R 561 at 562 – 563 by Gleeson CJ, Hunt CJ at CL and McInerney J. Although the principles have been stated in this Court time and again, it is useful to repeat what their Honours said in Allpass, namely:
"A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing Judge, and increasing the sentence if it considers it to be inadequate or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing Judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing Judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing Judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the Judge at first instance."
26 Their Honours then went on to deal with the special case of Crown appeals against sentence and concluded at 562 – 563:
"An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance."
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27 In relation to the determination of the question whether the sentence was manifestly inadequate, Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321 at 325 – 326 [6]:
"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."
Conclusion
28 In my opinion, the learned sentencing Judge approached the sentencing task in an appropriate manner. It has not been demonstrated that his Honour made any error of fact or law in the exercise of his discretion. The applicant's role in the transaction was that he was the highest of those who were apprehended in the hierarchy of offenders. Hence, it was appropriate that he should receive a more severe sentence than that of his co-offenders. The offences were serious examples of their kind and, in my opinion, they were within the range of sentences properly imposed for such offences. Methylamphetamines are a drug which is to be treated in the same way as heroin for the purposes of sentencing: Bellissimo v The Queen (1996) 84 A Crim R 465; Heryadi v The Queen (1998) 19 WAR 383; and Quach v The Queen [1999] WASCA 210. In the present case, the position of the applicant was similar to that of the offender in Olbrich v The Queen (1999) 199 ALR 270 in that he was to take delivery of the drugs and sell them on.
29 The applicant's principal offence involved an attempt to obtain possession of approximately twice the amount of drugs involved in the
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- individual importations by Iskandar and Soewandi. In my opinion, the sentence imposed was well within the range of a sound discretionary judgment, making due allowance for the plea of guilty which was not made at the earliest opportunity and taking full account of all the objective circumstances as well as matters personal to the applicant.
30 For these reasons, I am quite unable to conclude that the sentences imposed in this case were manifestly excessive. Consequently, while I would grant leave to appeal, I would dismiss the appeal.
31 MURRAY J: I too would dismiss this appeal. I have nothing to add to the reasons of Malcolm CJ.
32 ANDERSON J: I agree with the judgment of the Chief Justice. There is nothing I wish to add.
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