Mauceri v Regina

[2007] NSWCCA 262

New South Wales
Court of Criminal Appeal

CITATION:	Mauceri v Regina [2007] NSWCCA 262
HEARING DATE(S):	10 August 2007
JUDGMENT DATE:	4 September 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Harrison J at 2; Fullerton J at 49
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - leave to appeal against sentence - conspiracy to import commercial quantity of MDMA - whether sentence manifestly excessive having regard to applicant's involvement in offence and early guilty plea - whether appropriate sentencing discounts allowed having regard to applicant's advanced age, poor health and the combined effect of an early guilty plea and applicant's willingness to assit authorities - question of parity with co-offender - appeal dismissed
LEGISLATION CITED:	Customs Act 1901 - ss 233(1)(b), 235(2)(c)(i)
CASES CITED:	R v Gallagher (1991) 23 NSWLR 220 R v Olbrich (1999) 199 CLR 270 R v Shepherd 142 A Crim R 101; [2003] NSWCCA 287 R v Joseph Sukkar [2006] NSWCCA 92 R v Si ThanhTo [2007] NSWCCA 200 SZ v Regina 168 A Crim R 249; [2007] NSWCCA 19
PARTIES:	Antonio Mauceri (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/4658 (formerly 2007/1219)
COUNSEL:	Mr P Byrne SC (Applicant) Mr M Wigney (Respondent)
SOLICITORS:	Gregory J Goold (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0269
LOWER COURT JUDICIAL OFFICER:	Andrew A-DCJ
LOWER COURT DATE OF DECISION:	20 December 2005 (date of sentence)

2006/4658 (formerly 2007/1219)

McCLELLAN CJ at CL
HARRISON J
FULLERTON J

4 September 2007

Antonio Mauceri v Regina

Judgment

1 McCLELLAN CJ at CL: I agree with Harrison J.

2 HARRISON J: The applicant pleaded guilty on 1 December 2005 to an indictment charging that between about 19 June 2004 on 15 December 2004 at Sydney and elsewhere he conspired to commit an offence against s 233B(1)(b) of the Customs Act 1901 to import into Australia a quantity of 3,4 methylenedioxymethylamphetamine (commonly referred to as MDMA or ecstasy) being not less than the commercial quantity applicable to that drug.

3 The maximum penalty prescribed by s 235(2)(c)(i) of the Customs Act 1901 for this offence is life imprisonment or a fine not exceeding $825,000 or both.

4 The applicant adhered to his plea before his Honour Andrew A-DCJ on 20 December 2005. His Honour determined that the starting point for an offence of this seriousness was imprisonment for a period of 16 years. This was reduced by 50 per cent due to the applicant’s plea of guilty and assistance to the authorities. He was sentenced to a non-parole period of 5 years commencing on 15 December 2004 and expiring on 14 December 2009 with a balance of term of 3 years commencing on 15 December 2009 and expiring on 14 December 2012.

5 The applicant seeks leave to appeal to this Court against the sentence imposed. There are three grounds of appeal: -

5.1 The starting point at which the sentencing judge commenced the calculation of sentence prior to allowing for appropriate discounts was manifestly excessive having regard to what the applicant did in assisting the process of the importation of the quantity of prohibited drugs.

5.2 The starting point for sentence before allowing for appropriate discounts was excessive having regard to the age of the applicant and his relevant medical condition, which would make a sentence of imprisonment much more onerous for him.

5.3 The sentencing judge has erred in the calculation of an appropriate discount for the combined effect of the applicant's plea of guilty and the fact of his demonstrated willingness to assist the authorities with the investigation of the offence in which he was involved.

Background

6 His Honour was provided with a detailed statement of agreed facts.

7 The applicant ran a furniture business. At the request and direction of others in the scheme, the applicant took steps necessary to arrange for the importation of a shipping container of furniture from Europe. He dealt with the supplier of the furniture. The container was intercepted by the authorities and was found to have secreted within it a very large quantity of tablets that, when analysed, were found to contain 56.5kg of pure MDMA and 957.6g of pure methylamphetamine. The street value of the MDMA was estimated at $40 million. The container was ultimately delivered to an address used by the applicant in connection with his furniture business.

8 The tablets were discovered inside two large wooden crates concealed within sealed bags bearing labels for Horizon Espresso Coffee. The wooden crates were in turn found by customs officers inside a container of furniture. The shipping container was addressed to TMM Antiques and had been sent from a Belgian furniture company. TMM Antiques was a business name formerly associated with the applicant.

Ground 1

9 The applicant submitted that the first question to be determined was the level of the applicant's involvement in the importation: see The Queen v Olbrich (1999) 199 CLR 270 at [19]. His Honour dealt with this at page 7 of his remarks on sentence in the following way: -

"On all of the evidence and on all of the circumstances I am satisfied that the [applicant] well knew that narcotics were being imported and that that involved a significant and substantial quantity. He had been offered $100,000. It was a specific import for an illegal purpose which is not part of the [applicant's] normal business activity.

I agree with the Crown's submission that whilst various others were involved in the importation and the secretion of narcotics in the shipping container the [applicant’s] role was a significant one. He made virtually all the arrangements and payments connected with the importation of the container. It was the [applicant’s] furniture business that provided a convenient cover for the importation of the MDMA secreted in the shipping container, containing furniture ostensibly for the [applicant’s] furniture business. The [applicant] travelled overseas with others involved in the venture. He liaised with the supplier of the furniture and those who provided the money for the purchase of the furniture. He performed specific tasks in Australia, including arranging for the relevant shipping and importation documentation and liaising with shipping and Customs agents.

I agree with the Crown's submission that "it is clear however that much of what the [applicant] did was at the request or direction of others. The [applicant] does not appear to have been relevantly in charge of the venture and was not directly involved in the financing. Although on the evidence, and on the [applicant's] own account, he borrowed the equivalent of €9,100 from an associate of one of the co-conspirators to pay for the furniture. Nor is there evidence to suggest that the [applicant] was in any way involved in the sourcing of the narcotics. Nevertheless the [applicant's] role was essential to the importation of the narcotics".

The [applicant] told police that he was to receive $100,000 for his role in the importation. The clear inference is that he knew from the beginning that the venture involved narcotics. He was plainly motivated by financial gain."

10 The applicant in this Court does not challenge these general findings made by his Honour. Moreover, the applicant submitted that his Honour properly applied the principles set out in the passage from Olbrich at par [19] referred to above. It is instructive to record what his Honour said in this respect. The following is extracted from his Honour's remarks on sentence at pages 8-9: -

"I turn to the role of the [applicant]. In sentencing for offences of this nature the Courts have often been at pains to identify the position of the person in the hierarchy that exists or is presumed to exist of those persons involved in the importation. But what is important is an assessment of what the offender has done in carrying out his role in the importation rather than trying to identify precisely the position of the offender in the hierarchy and endeavouring to achieve an exactitude in determining the appropriate sentence to accord with that position. See R v Olbrich (1999) 199 CLR 270.

I do not think that the [applicant] was the principal in the sense of the one who organised the importation in the first place; who sourced the drugs and who was motivated by and was to share in a huge financial gain. But he is a person who provided important assistance in the importation of quantities of the order of that here. He played a significant role in facilitating and making the importation possible, of what he must have known to be a very substantial quantity of drugs and was an active participant over a period of time and the importers needed someone to fill this role if the importation was to be successful and the offender was prepared to undertake that task.

The quantity of the drugs imported was very large. It's wholesale value was high. The part played by the [applicant] was significant. This is a very serious offence. It could be seen as an international conspiracy manifesting itself in a major importation of this quantity of a huge amount of drugs."

11 The applicant did not dispute his Honour's reference in the passages just quoted to the applicant having played a "significant role" or to the fact that the assistance that the applicant gave to the organisers of the importation was "important". However, the applicant takes issue with his Honour’s description of the applicant's role as "essential". According to the applicant, the evidence suggests that the organisers of this importation would have gone to somebody other than the applicant in order to effect the importation if the applicant's services had been unavailable.

12 In support of the first ground of appeal the applicant submitted that he was in a vulnerable position by reason of the financial hardship he had suffered through being defrauded by one of his co-offenders. According to this submission, the applicant permitted himself to be used by others who appear to have instigated the project of the importation of prohibited drugs and to have used their initiative and expertise to bring the applicant into their illegal scheme. This is dealt with by his Honour in his remarks on sentence commencing at page 11 as follows: -

"Further by way of background it appears that [the applicant] had earlier been defrauded by one of his co-offenders, is said to be in the amount of $140,000 and in the report of John Taylor a clinical forensic psychologist it is noted the [applicant] said that when he did become aware that drugs were being imported with the furniture he did not tell the police as he was still hoping he could get back the $140,000 that he had previously invested.

I accept that financial hardship and a desire to recover money which he had lost was the motivation for his having committed this offence."

13 His Honour’s finding regarding what he accepted to be the applicant's motivation for becoming involved in the importation is said by the applicant to be important. In the applicant's submission, this finding has to be linked to further positive findings relating to the applicant's personal qualities to which his Honour referred, including that he was a person of prior good character who had shown considerable remorse and contrition. In particular, his Honour referred to those matters at page 12 of his remarks on sentence: -

"[The applicant] has never previously been convicted of any criminal offence. He is a man of prior good character. I accept that he has shown considerable remorse and contrition. He feels that he has shamed his family and himself. It is apparent that his remorse is genuine and I do not believe that he would ever re-offend. He has been assessed in that regard in the low range."

14 I find the applicant's submissions in support of the first ground of appeal difficult to accept in the circumstances of the present case. Bearing steadily in mind the offence for which the applicant was sentenced, particularly having regard to the maximum penalty, his Honour appears to have made no discernible error at all. This was a single importation of drugs. The quantity and value of the drug was very high. In my opinion, his Honour was correct in assessing the applicant's role as significant and as one that both facilitated the importation and made it possible. It is to my mind wholly beside the point that the applicant’s co-conspirators could have found someone else to perform the applicant's role if he had declined to participate. In all likelihood, the same could be said of all or most of the other participants in this particular importation.

15 His Honour’s starting point, having regard to all relevant considerations, was well within the scope of his sentencing discretion. In the Crown's submission, it was in fact at the very bottom of the acceptable range of sentences imposed on persons involved in the importation of very large commercial quantities of ecstasy.

16 For example, in R v Shepherd (2003) 142 A Crim R 101; [2003] NSWCCA 287, a case involving the importation of ecstasy with the pure weight of 34.4 kg, the activities of the relevant offender, who, not unlike the applicant, ran an importing and exporting business, were described in the judgment of Howie J at [13] as follows: -

"[13] . . .The applicant's criminality arises from the fact that he was prepared, for whatever gain or other motive, to play a significant role in the importation of what he must have known to be a very substantial quantity of drugs. He had agreed to become involved in the importation in March 2001. He was an active participant from August until December 2001 by taking steps to facilitate the clearance of the container through the shipping company and customs. He had permitted premises that he had leased to be used to receive the container and to store some of its contents. The applicant was there when the container was delivered. He assisted in the removal of some of the contents, clearly believing that they contained drugs, and the loading of them onto a truck to commence their distribution."

17 In R v Si Thanh To [2007] NSWCCA 200, Hulme J at [29] referred to Shepherd and to the effective starting sentence which was imposed as follows: -

"[29] Shepherd was 44 in November 2002 when sentenced, had no relevant criminal history and was described as an intelligent and industrious person. He appealed against a sentence of 14 years including a non-parole period of 9 years. Holding that the sentence was excessive, this Court reduced it to one of 11 years 6 months with a non-parole period of 7 years 4 months. Of significance for present purposes is the fact that the ground relied on by this Court for interfering was the discount for assistance which the Court held should, when combined with that for pleading guilty, be 45%. Working backwards, this indicates a period, prior to that discount of about 21 years. That figure was arrived at after a discount, allowed by the judge at first instance, of approximately 30% by reason of s16G of the Crimes Act. Although recording a concession by the Crown that the starting sentence, which seems to have been treated as about 32 years, was at the very top of the range, this Court made no criticism of it."

18 The Crown referred to the review undertaken in R v Si Thanh To (supra) of some of the more recent sentences imposed from offences involving comparable importations of ecstasy and similar drugs. Relying upon this comparison, the Crown submitted that, whilst there will always be differences between the facts and circumstances in the reviewed cases and the present case, it may nevertheless be observed that virtually all of the cases reviewed involved effective starting points well in excess of the 16-year starting point adopted by his Honour in the present case.

19 In my opinion, Ground 1 is not made out.

Ground 2

20 This ground of appeal was, in effect, a further, more particular, submission in support of the first ground of appeal. The applicant was born on 1 July 1935. He submitted that his personal factors, most particularly his relatively advanced age and relatively poor health, and what was said to be the effect that those factors would be likely to have on the applicant when serving a sentence of imprisonment, demonstrated that the starting point adopted by his Honour was excessive.

21 His Honour dealt with these matters at page 10 of his remarks on sentence as follows: -

"Further in that report it is noted that 'the [applicant] is about seventy years of age. He suffers from a number of heart problems which recently required surgery. His parents are deceased but he enjoys the close support of four brothers and a sister who reside in Australia. He has three children from two previous relationships with whom he had regular contact'."

*****

"He suffers from high blood pressure and type 2 diabetes for which he is medicated. He had triple bypass heart surgery late last year and he remains in recovery from that operation. His health is regarded as fragile. In addition to his chest and heart diseases he has been under the care of a colorectal surgeon for large bowel disease and a urologist for benign prostate enlargement. He suffers from sleep apnoea."

22 His Honour had the benefit of a series of medical reports setting out the applicant’s physical and psychological conditions in some detail. One of those was a confidential psychological report dated 11 October 2005 prepared for the New South Wales Department of Corrective Services. Part of that report included the following material: -

" Physical and Psychological History

[The applicant] reported an unremarkable birth. He denied ever losing consciousness or suffering from any psychological disturbances. [The applicant] described that since he has been incarcerated, he 'thinks too much' about his future and the worry gives him headaches. A number of times he spoke of how worried he is about dying in gaol. He also spoke of how upsetting his situation is, as he fled his own country due to poverty then worked hard all his life only to 'end up in gaol'. He said that gaol was 'not a good place' for him. During the interview he complained that he had not received sufficient medical attention since being incarcerated.

[The applicant] underwent triple bypass surgery late last year and reports that he is still recovering and requires weekly appointments with a General Practitioner. He also claimed to have blood pressure problems, prostate problems, and hernia problems. He denied ever having other serious illnesses or of undergoing other medical procedures.

Notes in the Justice Health Services Medical File indicate that [the applicant] is not in an urgent state and does not require weekly appointments. [The applicant] receives a number of medications for a variety of general issues and he has been referred to a specialist for the hernia condition. Justice Health Services indicated that it may take some time for [the applicant] to undergo the operation for his hernia."

23 The burden of the applicant's submission is not that his Honour failed to take these matters into account at all, but that, having taken them into account, he then accorded them insufficient weight in the scheme of things. Specifically, his Honour referred to these matters at page 11 of his remarks on sentence in the following terms: -

"Section 16A of the Commonwealth Crimes Act provides that 'the character, antecedents, cultural background, age, means and physical or mental condition of the person must be taken into account'. If I take into account his age and demonstrated poor health any incarceration will involve particular hardship and I think some medical risk. I take all that into account and know that as per case of Hart NSWCCA unreported 26 July 1999 that 'The offender’s psychological and medical health and age may increase the hardship of a sentence and may therefore be taken into account in deciding what sentence is appropriate but that consideration is limited by the necessity of maintaining proper standards of punishment'."

24 The principal difficulty with this submission is that the applicant's medical condition would not appear to distinguish him from a significant proportion of the male population of the same age. The report of Dr Kumaradeva dated 25 January 2005 would appear to have been prepared with the benefit of his having treated the applicant in his general practice over a period of 10 years. At the date of the preparation of that report, the applicant had undergone his triple bypass operation some six weeks earlier. It is in my opinion significant in those circumstances that the only opinion offerred by Dr Kumaradeva was that "in view of his age, and ongoing medical problems, his present incarceration will surely slow his recovery, and prevent his other conditions from being adequately cared for".

25 The applicant has not sought to support the second ground of appeal upon the basis that imprisonment will prevent the applicant from receiving adequate care for his various medical conditions. Nor, as I understand the submission, does the applicant suggest that he has not fully recovered from his thoracic surgery, bearing in mind the serious nature of that surgery as generally understood. Rather, the submission is limited to the proposition that the applicant’s age and frail medical condition have not been properly taken into account in determining a starting point for the sentence.

26 His Honour was clearly mindful of the applicant's medical condition as his remarks on sentence reveal. His Honour referred in terms to the statutory obligation imposed upon him to have regard to it. Other than his complaint about the starting point for the sentence, however, the applicant has not identified or isolated any error in his Honour’s reasoning process that appears clearly, or even arguably, to have infected his sentencing discretion. His Honour does not appear to have disregarded relevant material or taken into account irrelevant material.

27 In my opinion, the second ground of appeal also fails.

Ground 3

28 His Honour dealt with the issue of the applicant's assistance at pages 12-13 of his remarks on sentence in the following passage: -

"Further he provided information about the alleged involvement of persons in serious and organised crime including the creation of corporate entities that the ACC believes were created for suspected narcotic importations. That information is regarded as being potentially useful intelligence and 'may lead to further intelligence projects on other Sydney based criminal networks'. He has offered to give evidence in the knowledge that he places his life at substantial risk. That risk is assessed as both real and substantial. The Crown has decided however not to call him as a witness in other cases. For the [applicant’s] early plea of guilty and for assistance and co-operation I would assess an overall discount in sentence of fifty per cent for those factors."

29 In R v Sukkar [2006] NSWCCA 92, her Honour Latham J, with whom McClellan CJ at CL and Howie J agree, said at par [54]: -

"[54] While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender."

30 In SZ v Regina (2007) 168 A Crim R 249; [2007] NSWCCA 19, Buddin J said:-

"[51] It is timely to reiterate that sentencing judges should be careful to ensure that the component of the discount which relates to the promise of future assistance should be specifically quantified with a degree of precision. That allows the parties to know exactly what the position is and will also enable an appellate court to deal appropriately with any review brought by the Crown in the event that such a promise is not fulfilled. See generally R v Halls and Halls (2002) 127 A Crim R 209; R v Waqa (No 2) (2005) 156 A Crim R 454. In Commonwealth matters of course a sentencing judge is required, by reason of s 21E of the Crimes Act 1914 (Cth) , to identify the component which relates to future assistance. "

"[52] I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151."

31 The applicant submitted that the finding in his case, that because he has provided assistance there is a "real and substantial" risk that his life is in jeopardy, is a matter of some considerable significance. The applicant submitted that this kind of assistance might legitimately be categorised as falling within an exceptional category. It is said to contrast significantly with the position that existed in Sukkar (supra) where Howie J observed at par [6]:-

"[6] In the present case there was simply no evidence that the respondent was at risk by reason of the assistance he had given or that the assistance would have impacted at all upon the manner in which he would be required to serve his sentence. There was no evidence placed before this Court in answer to the Crown appeal to show that in any way the respondent had been disadvantaged by the fact that he had given assistance. The Judge erred in the discount given to the respondent for his plea and assistance and one of the reasons is because he made the unjustified assumption that imprisonment would be more onerous for the respondent because of the assistance provided."

32 The present case involves no question of future assistance. The Crown submitted that the discount of 50 per cent given by his Honour was at the top of the range for discounts customarily given for assistance which, at least until recent times, were generally of the order of between 20 per cent and 50 per cent.

33 Moreover, the reference to the risk to the applicant's life as being "both real and substantial" appears in the context of the applicant’s offer to give evidence for the prosecution in the future which, it is acknowledged, places his life at substantial risk. The Crown has since decided not to call the applicant as a witness in any case. Additionally, it does not follow from the finding relating to the risk to the applicant's life that he will necessarily serve his sentence in more onerous conditions: see Sukkar at [6] (supra).

34 As recently as 1991, Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220, had this to say at 232: -

"It is a common feature of cases where leniency is being sought on behalf of a person who has co-operated with the authorities that the argument in favour of such leniency comes from the Crown as well as the offender. The prosecuting authorities themselves have gained, or hope to gain, from the assistance in question, and it is understandable that they regard it as advancing the interests which they represent to see that such assistance is suitably and publicly rewarded. There is, however, usually no-one to put an opposing or qualifying point of view. This raises the need for special care on the part of the judge. The Court must be astute to ensure that it is being given accurate, reliable, and complete information concerning the alleged assistance and the benefits said to flow from it. Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency, which are being jointly urged by both the prosecution and the defence, in circumstances which may call for a close examination of the alleged assistance. Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards. If sentencing principles are capable of producing an outcome of that kind, then that calls into question their legitimacy."

35 I do not consider the applicant's position to be exceptional. Upon the basis of the material before his Honour, the “valuable assistance” to authorities which the applicant had agreed to give was, on one view of the matter, likely to be of limited value. This is because the Crown had decided that it would not utilise the applicant as a witness in later cases. However, this is a factor to which his Honour appears to have had little, if any, regard.

36 From the applicant’s point of view, there is no meaningful distinction between an offer to put his life at risk by promising to give assistance to authorities, which a sentencing judge knows will not be utilised, on the one hand, and either a demonstrated history of assistance or an offer to do so in the future, which a sentencing judge knows will be utilised, on the other hand. In the nature of things, the consequences for the applicant are unlikely to be different in either case. At the time of sentencing the applicant, his Honour knew that the Crown had decided not to call him in other cases. However, his Honour appears in no way to have diluted the significance of the applicant’s offer. Indeed, the description of the risk to the applicant’s life as both real and substantial suggests that his Honour accorded it the highest significance. He referred to it as “potentially useful intelligence”. In my opinion, this is more than adequately reflected in the discount which was given.

37 It is important to remember that public confidence in the administration of criminal justice would be potentially diminished if this Court were to give uncritical assent to arguments for leniency in circumstances where a close examination of the alleged assistance revealed it to be illusory. This is not such a case. However, a sentencing judge is necessarily constained by the principles referred to by Gleeson CJ in R v Gallagher (supra) and the same principles must be borne in mind by this Court when considering whether or not his Honour erred in the present case.

38 In my opinion, Ground 3 is not made out.

Further submissions

39 During the hearing of the application, an issue arose concerning the question of parity between the sentnce imposed on the applicant and that imposed on a co-offender George Nikolic. His Honour Donovan DCJ sentenced Mr Nikolic to a term of 16 years imprisonment with a non-parole period of 10 years following conviction by a jury on an identical charge. This was precisely the same term of imprisonment adopted by the sentencing judge in the present case before the application of the 50 per cent discount referred to earlier.

40 It was submitted on behalf of the applicant that the objective criminality of Mr Nikolic’s conduct was no less serious than that of the applicant. In particular, it was suggested that the role played by the applicant in the relevant importation was no greater than that played by Mr Nikolic. His Honour Donovan DCJ observed that there was some suspicion that Mr Nikolic’s role was greater than the applicant but that there was no material that would promote Mr Nikolic’s role to any significant degree above that of the applicant. Furthermore, the personal circumstances of Mr Nikolic did not distinguish him from the applicant in any relevant respect.

41 Paragraph 4 of the applicant’s supplementary written submissions encapsulated his argument on the issue of parity in this Court. It was in the following terms: -

"The applicant does not contend that there is a stark contrast between the sentences imposed on Mr Nikolic and the applicant. However, the fact that a person in his position - that is an old man with an unblemished record who is vulnerable to exploitation, and who seems on the available evidence to be lower in the hierarchy of the criminal organisation than Mr Nikolic, should receive the same sentence, before allowing for appropriate discounts, as his co-offender means that the applicant's relevant personal circumstances for the purpose of sentence have not been given adequate weight."

42 In my opinion, there are at least two difficulties with that submission. First, factors such as criminal history, vulnerability and age are matters which his Honour clearly took into account. His Honour referred to these matters in terms in his remarks on sentence when he said, "I take into account . . . his age of 70 and the fragile state of his health and that this is his first offence". His Honour also had regard to the material referred to in the Probation and Parole report. Most of this material has already been referred to in consideration of Ground 2 and it is unnecessary to repeat it. The applicant’s submission clearly raises a complaint about the way in which his Honour balanced the competing factors, but fails in my opinion to highlight or demonstrate error in the way in which he exercised his sentencing discretion.

43 Secondly, I am not satisfied that it has been demonstrated that the applicant and his co-offender occupied relevantly different levels of the criminal hierarchy. There is no doubt that their respective roles were different, since they had different functions to perform as part of the criminal enterprise. But the differences do not all favour the applicant. For example, Mr Nikolic remained in Australia during the whole of the period of the conspiracy. In contrast, the applicant left Australia and travelled to Europe for some time.

44 Between pages 2 and 10 of his remarks on sentence his Honour Donovan DCJ set out a detailed analysis of Mr Nikolic’s role in the conspiracy and a comparison of it with the role performed by the applicant. It is unnecessary for present purposes to refer to the whole of that material. However, some of his Honour’s conclusions following that exercise are instructive. For example, at page 11 his Honour made the following comment:: -

"The defence submits that although Nikolic and [the applicant] had different roles to fulfil and had different objectives and there were different circumstances and they have a different relationship with Ulic and Trifunoski, nevertheless in substance each had an equivalent responsibility. Nikolic had his role to play and [the applicant] had his role to play."

45 A little later, on page 12 of his remarks on sentence, his Honour said this: -

"While there may be some suspicion that Nikolic’s role was greater than [the applicant], it seems to me that both were under the direction of Ulic and Trifunoski and each had their own roles to carry out in circumstances which seem to me to suggest that the responsibility and criminality of each was, in general terms, equivalent. I can find no facts beyond reasonable doubt which increase Nikolic’s role to any significant degree above that of [the applicant]. Both were very actively and very centrally involved in this importation."

46 There is no doubt that his Honour Donovan DCJ took into account matters of parity when imposing the sentence on Mr Nikolic. Both the defence and the prosecution agreed that he should do so, even though the prosecution submitted that Mr Nikolic’s role was greater than that of the applicant. To this end, his Honour referred in detail to the remarks on sentence of his Honour Andrews A-DCJ in the present case.

47 In these circumstances I am not satisfied that the applicant could have a justifiable sense of grievance at the sentence imposed upon him either because the sentencing judge misunderstood the relative roles in the conspiracy occupied and performed by him and Mr Nikolic respectively, or that as a result of a comparison between the sentences that were imposed on them, he received a sentence that was disproportionate to his role. Moreover, it would be inappropriate in the present case, except in the face of a demonstrably unjust disparity, to revisit the sentence imposed on the applicant because of an allegedly unfavourable comparison with the sentence imposed on his co-offender, when his Honour Donovan DCJ so carefully and painstakingly had regard to the applicant’s sentence in any event. Even accepting the applicant’s submissions at their highest, any disparity between the two sentences is not in my opinion such as would warrant intervention by this Court on the basis that some less severe sentence than that imposed on the applicant was warranted in law and should have been passed.

Orders

48 I would propose the following orders: -

1. Leave to appeal granted.
2. Appeal dismissed.

49 FULLERTON J: I agree with Harrison J.

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