N v R; AP v R

[2009] NSWCCA 108

New South Wales
Court of Criminal Appeal

CITATION:	N v R; AP v R [2009] NSWCCA 108 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	31 March 2009
JUDGMENT DATE:	17 April 2009
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 2; Buddin J at 3
DECISION:	Applicant - NN 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentence imposed in the District Court. 4 In substitution therefore sentence the applicant to imprisonment for 6 years 6 months to commence on 21 May 2007 and to expire on 20 November 2013. I specify a non-parole period of 4 years to commence on 21 May 2007 and to expire on 20 May 2011 on which date the applicant will be eligible for release on parole. Applicant - AP 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentence imposed in the District Court. 4 In substitution therefore sentence the applicant to imprisonment for 6 years to commence on 28 May 2007 and to expire on 27 May 2013. I specify a non-parole period of 3 years 8 months to commence on 28 May 2007 and to expire on 27 January 2011 on which date the applicant will be eligible for release on parole.
CATCHWORDS:	Sentencing - possession of marketable quantity of cocaine and aid and abet importation of marketable quantity of cocaine - pleas of guilty and assistance to authorities - whether factual findings open - whether sentences manifestly excessive - parity
LEGISLATION CITED:	Crimes Act 1914 (C’th)
CATEGORY:	Principal judgment
CASES CITED:	Budiman v R (1998) 102 A Crim R 411 Cameron v The Queen (2002) 209 CLR 339 Clarkson v R (2007) 209 FLR 387 Le v R [2006] NSWCCA 136 R v Kaldor (2004) 150 A Crim R 271 R v Kardoulias and Ors (2005) 159 A Crim R 252 R v Klein (2001) 121 A Crim R 90 R v Mas Rivadia and Ors (2004) 61 NSWLR 63 R v Milich [2008] NSWCCA 148 R v Otto (2005) 157 A Crim R 525 R v Paliwala (2005) 153 A Crim R 451 R v Qutami (2001) 127 A Crim R 369 R v Riddell [2009] NSWCCA 96 R v SC [2008] NSWCCA 29 R v Speer [2004] NSWCCA 118 R v To (2007) 172 A Crim R 121 R v Tyler; R v Chalmers (2007) 173 A Crim R 458 R v Wong and Leung (1999) 48 NSWLR 340 The Queen v Olbrich (1999) 199 CLR 270 Wong and Leung v The Queen (2001) 207 CLR 584
PARTIES:	NN v R (Applicant) AP v R (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/16131; 2007/13515
COUNSEL:	G Turnbull SC (Applicant NN) P Hamill SC (Applicant AP) L Crowley (Crown) (Respondent)
SOLICITORS:	Nyman Gibson Stewart (Applicant NN) Nyman Gibson Stewart (Applicant AP) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0681; 07/11/0677
LOWER COURT JUDICIAL OFFICER:	Payne DCJ
LOWER COURT DATE OF DECISION:	13 March 2008

2007/16131
2007/13515

McCLELLAN CJ at CL
SIMPSON J
BUDDIN J

FRIDAY 17 APRIL 2009

NN v R

AP v R

Judgment

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

2 SIMPSON J: I agree with Buddin J.

3 BUDDIN J: The applicants seek leave to appeal against sentences imposed upon them in the District Court. Each of them pleaded guilty in the Local Court and adhered to those pleas when they appeared for sentence. The pleas were regarded by the sentencing judge as having been entered at the earliest opportunity. The applicant NN pleaded guilty to the possession on 21 May 2007 of a marketable quantity of cocaine which had been unlawfully imported. The applicant AP pleaded guilty to aiding and abetting the importation of the cocaine. The maximum penalty for each offence is imprisonment for 25 years and/or 5000 penalty points. The marketable quantity prescribed by the legislature is 2 grams whilst the commercial quantity is 2 kilograms. The quantity of cocaine involved in the present case was 1.753 kilograms.

4 The applicant NN received a head sentence of 8 years 4 months with a non-parole period of 5 years 3 months whilst the applicant AP received a head sentence of 7 years 9 months with a non-parole period of 4 years 10 months.

5 A comprehensive agreed statement of facts provided the factual background to the commission of these offences. I have drawn heavily upon that statement in what follows.

6 In February 2007, NSW police commenced an investigation into the drug related activities of Vake Geokjiou (Geokjiou) and Emil Badalyn (Badalyn). As part of the investigation, arrangements were made to intercept the telephone calls of various persons. Telephone intercepts revealed that on 20 April Geokjian contacted a man, whom he identified only as “Number One”, in the United States and arranged for a consignment of cocaine to be provided to him. Intercepted phone calls between Geokjian and his contacts in the United States on 9 and 10 May 2007 respectively reveal that there were further discussions about the enterprise. On 14 May Geokjian had two conversations with the applicant NN which were also intercepted. Although these, and other conversations are in code, it is apparent nonetheless that the applicant was being asked by Geokjian to collect the consignment. It is equally clear that NN knew that arrangements had to be made to import the consignment. On 16 May 2007 members of the Australian Customs Service examined a suspicious Federal Express (FedEx) package. The address of the consignee on the package was shown as Auto Body King Smash Repair Pty Ltd at an address in Artarmon. Geokjian’s brother is an office holder of that company. The consignment consisted of a large box inside which was a brake drum. Custom officers located cocaine inside the brake drum. It was concealed in a cavity in the interior of the lining of the brake drum.

7 Throughout the day of May 18 there was considerable activity as efforts were made to take delivery of the consignment. At about 11.36 am NN telephoned Geokjian and told him to go to the “shop”, that is the premises in Artarmon, to which the consignment was to be delivered. He said that “someone is going to call you, see what happens”. At about 12.21, the applicant AP telephoned Geokjian and they discussed the cause of the delay in the delivery of the consignment. AP informed Geokjian that “it” (that is the consignment) had accidentally been sent to Brisbane and asked whether Geokjian had already discussed that matter with “NN”, (that is NN). AP then informed Geokjian that “they”, (that is FedEx) were going to call back in two hours to tell “us when it will be at the shop”.

8 At about 1.19 pm, AP telephoned Geokjian and they again discussed the reasons for the delay in the delivery of the consignment. Geokjian explained that “they” (that is FedEx), had the wrong address for the consignee. Geokjian told him that “he (NN) has gone to pick it up (and that AP should) tell (him) to drive around in circles, then bring it here and leave it”.

9 Some time prior to 2 pm, NN attended the FedEx depot at Alexandria and attempted unsuccessfully to collect the consignment containing the cocaine. At 2.02 pm NN again telephoned Geokjian to discuss the delivery of the consignment. They had a conversation in which NN informed Geokjian that the “aunty (the consignment) was coming in a taxi” (that is that it was being delivered by FedEx courier). NN advised Geokjian that “they” (FedEx) had the wrong address and that he had “made it right” (that is that he had provided the correct delivery address). Geokjian advised NN that he would not be at the shop but that he had arranged for someone else to be there.

10 At about 5.25 pm, NN telephoned Geokjian and checked to see if the consignment had been delivered by FedEx. Geokjian advised NN that the consignment had not arrived and instructed NN to “go pick her up”. At about 6.45 pm, NN again attended the FedEx depot at Alexandria and attempted to collect the consignment. He was advised by FedEx that it would now be delivered on Monday 21 May 2007.

11 At 7.05 pm, NN telephoned Geokjian and they had a further conversation in which NN advised Geokjian that the consignment had not been delivered and that there would be a further delay. He also said that there would be no further deliveries that day. NN then asked Geokjian to tell him what to do in relation to the consignment as he had done what he could to collect it.

12 At 10.53 am on 21 May 2007, NN telephoned Geokjian and they discussed the fact that the consignment had still not arrived. At 12.01 AP telephoned Geokjian and advised him that there was “…no-one at your shop”. AP advised him that “they” (FedEx) had been ringing the premises but that no-one was there. At about 12.20 pm the consignment was delivered in a controlled operation to the premises in Artarmon where delivery was accepted by the workshop manager. At about 12.30 pm Geokjian was advised of its arrival.

13 At about 1.35 pm Geokjian telephoned NN and advised him that the consignment had been delivered. Geokjian was then seen by surveillance police arriving at the premises just before 2 pm. At about 4.26 pm, Geokjian telephoned AP who requested that a little bit (of cocaine) be kept for him for his own personal use. At 4.28 pm, NN arrived at the premises in a white Toyota van which he then drove into the garage. Police later located the consignment of cocaine in the rear of NN’s van. Geokjian and NN were then arrested. NN declined to be interviewed by police. He has remained in custody since that date. On 28 May 2007 AP handed himself into police. He was arrested but he too declined to be interviewed by police. He has remained in custody since that date.

14 In due course the brake drum was deconstructed and the cocaine within it was retrieved. Upon analysis its purity was found to be about 60%. The wholesale value of the cocaine was estimated to be approximately $547,000 whilst the street value was estimated to be between $1m and $1.4m.

15 The sentencing judge accepted the Crown’s characterisation of NN’s role as being that “of a delivery driver and [that] his role was at the lower end of the scale”. Her Honour referred to the fact that he had attempted on two occasions to take possession of the consignment and to the fact that it was located in his van. The sentencing judge found that AP “was responsible for telephone calls facilitating the delivery of the drug once it arrived in Australia. He was involved in ensuring knowledge of the delivery was in place…. From what [he] actually says during the intercepted calls, and the surrounding circumstances, I am satisfied that he had knowledge of the method of the importation and the arrival date of the importation. He was certainly trusted enough to be allowed to pass on instructions to Mr NN. Each offender played a vital role in the operation and was an essential participant.” A little later, her Honour remarked that “[e]ach played an active role in facilitating the importation of the cocaine and both were essential participants in the criminal enterprise [and] the clear inference [was] that each expected to receive a substantial financial reward”. It is apparent from the more lenient sentence which the sentencing judge imposed upon AP, that her Honour concluded that his role was of a slightly lesser order.

16 As I have said, each of the applicants pleaded guilty at the first opportunity. The sentencing judge observed that the Crown case against NN was “very strong” whilst the case against AP was “reasonably strong”. Her Honour acknowledged that each of them was entitled to a discount because of a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339. Moreover, each applicant had provided “considerable” assistance to the authorities. It is unnecessary to refer to the details of that assistance but the sentencing judge accepted that it was “full and frank” and that it was “genuine”. Her Honour specifically took into account the fact that neither applicant was serving his sentence in protective custody before determining that a combined discount of 40%, for the plea of guilty and assistance to the authorities, should be allowed. Her Honour said that of that discount, 27% was attributable to the plea of guilty and past assistance whilst the remaining 13% was for future assistance which took the form of an undertaking to give evidence in related proceedings.

17 The applicant NN was born in August 1975 and was accordingly 31 at the time of the offence. The applicant AP was born in April 1978 and was accordingly 28 at the time of the offence. Each of the applicants emigrated to Australia from Armenia with their respective families after that country had experienced an earthquake in the late 1980s. The sentencing judge accepted that each of the applicants had a good work history. Each of them had been employed as a mechanic and the applicant NN had gone on to start up his own business. Each of them was married with young children. There was evidence, which the sentencing judge accepted, that the applicants’ dependents were adversely affected to a significant degree by their incarceration. The applicants nonetheless enjoyed the on-going support of their respective families. Although each of the applicants had a criminal history, the sentencing judge concluded they were not of the kind that would “disentitle either of them to leniency”. The applicant NN had a conviction in 1993 for taking a conveyance without consent for which he received a bond and two convictions for low range PCA, whilst the applicant AP had convictions in 2006 for two offences of goods in custody for which he also received a bond. Her Honour noted that neither applicant had previously been in custody. Given the circumstances, the sentencing judge found that each applicant had reasonable prospects of rehabilitation. It is to be noted that neither had attracted any institutional misconduct charges whilst in custody. Moreover, each of them had been progressing satisfactorily and each had managed to complete various courses in gaol.

18 Her Honour also accepted that “the very serious motor vehicle accident [which the applicant] AP was involved in, in March 2004 impacted in a deleterious way on his life. He was not able to recommence any formal employment.” It is apparent that he had suffered permanent injuries to his shoulder. The applicant reported to a psychologist, Mr Taylor, that since then his “life has been a mess”. In the aftermath of the accident, the applicant reported that he had begun to abuse both cocaine and alcohol. His wife gave evidence of the way in which the accident had affected his life and his general psychological well-being. Nevertheless the applicant did receive a settlement of his personal injuries claim of $250,000 about two months before the offence. The evidence revealed that each of the applicants was in some way beholden to the man Badalyn who was a much more significant participant in this criminal enterprise. Each of them reported having become dependent upon cocaine after having been introduced to it by Badalyn. Her Honour, having cited the observations of Latham J in Le v R [2006] NSWCCA 136 [at 32], however concluded that any vulnerability which may have arisen from their dependency upon cocaine did not entitle the applicants to any particular leniency.

Grounds of Appeal
Applicant - NN
Ground 1

19 The sentence is manifestly excessive.

Ground 2

20 Her Honour erred by failing to have sufficient regard to the fact that the applicant’s offending was motivated partly by his financial obligations to his co-offender, Badalyn.

Ground 3

21 The sentence proceedings miscarried because the offender has been left with a justifiable sense of grievance given the more lenient sentence imposed upon his co-offender, AP.

Applicant - AP

22 1 The sentencing judge made findings of fact not open on the evidence.

2 The sentence is manifestly excessive.

3 A different, less severe, sentence is warranted and ought to have been imposed.

23 It is convenient to deal first with those grounds of appeal which assert that the sentencing judge made specific errors before considering the complaint raised by each of the applicants that the sentences were manifestly excessive and then finally deal with the argument about disparity asserted by the applicant NN.

Ground 2 (NN)

24 A substantial body of material was introduced into evidence on behalf of this applicant in order to establish that he had previously lent a sum of approximately $400,000 to Badalyn for the purpose of investing in the construction of a childcare centre. That evidence also revealed that about a month before the commission of the offence, the applicant had been advised that approval for the construction of the child centre would not be forthcoming and that, as a consequence, the applicant had requested the return of the money. There was also some material before the court which suggested that Badalyn had told the applicant that the only way that he could get his money back was if he agreed to become involved in the collection of the consignment of cocaine. The material which pertained to the applicant’s apparent motivation for getting involved in this enterprise emerged from what he had told the authors of the pre-sentence reports which were in evidence and what he had told a psychologist, Mr Taylor and a psychiatrist, Dr Roberts each of whom also prepared reports on his behalf.

25 The sentencing judge made the following finding about that material:

I accept on the balance of probabilities that about $400,000.00 was advanced by Mr NN to Mr Badalyn. This was through commercial decisions Mr NN made. He bought property with Mr Badalyn, although his name was not on any of the title documents. He had intended to go into business with Mr Badalyn. Property had to be purchased for that purpose. The way he approached the matter may have been unwise. I cannot see, though the reason he says he participated in this offence was anything other than a matter of financial gain to him.

26 In written submissions on behalf of the applicant it was accepted that he “stood to obtain a very substantial advantage through his participation [in the offence even if it involved] the return of a very large sum of money that had been lent by him to Badalyn”. It was submitted however that Badalyn’s “financial manipulation” of the applicant in order to persuade him to become involved in this illegal venture was a factor that should have been given greater weight than it was apparently afforded. The short answer to that submission is that as the applicant did not give evidence, the sentencing judge was left with nothing more, in respect of this aspect of the matter, than hearsay assertions which were unable to be tested: see generally R v Qutami (2001) 127 A Crim R 369. That being so, the sentencing judge was quite entitled not to rely upon that material. Moreover, counsel who appeared at the hearing of the matter (but who had not drafted the written submissions), appeared to acknowledge the obstacles which lay in his path in respect of the argument. In the final analysis, the submission was only faintly pressed. In my view, Ground 2 is without substance and should be rejected.

Ground 1 – (AP)

27 In written submissions filed on behalf of the applicant, it was asserted that the sentencing judge had made three findings about the objective gravity of the offence which were not open on the evidence. The first concerned her Honour’s finding that “he had knowledge of the method of importation and the arrival date of the importation”. That submission was not pressed in oral argument, presumably because of what can be inferred from the intercepted phone calls and from what is implicit in the plea of guilty. The second challenge was to the finding that the applicant was an essential participant in the enterprise. It was submitted that his role could not be described as indispensable and that a concession, made by the informant in cross-examination, that the delivery would have occurred without this phone calls established that fact. So much may be accepted but it is equally clear that the applicant actively endeavoured, as her Honour found, to facilitate the delivery of the consignment to its intended destination in Artarmon. Once the delivery had been organised with Fed Ex for 21 May, it was this applicant who called Geokjian at 12.01 that day to advise him that he needed to ensure that someone was at the premises in Artarmon to accept delivery of the consignment. It is also apparent that arrangements were thereafter made for the workshop manager to be present to accept delivery. What is of particular significance for present purposes is that the sentencing judge clearly regarded the applicant’s role as being low in the hierarchy. Her Honour’s description of his role as being “essential” does not in any way detract from that critical finding. It may be that what the sentencing judge said may have been better expressed but I do not detect any material error of the kind which is asserted. Furthermore, it was specifically conceded on behalf of the applicant NN that his own role was essential notwithstanding the fact that he was at the lower end of the hierarchy of this enterprise.

28 The applicant also challenges the sentencing judge’s finding that he expected to receive a significant financial reward. The applicant submitted that the only evidence which touched upon the issue of what he stood to gain was the request, which he made in the last phone call, that a little bit of cocaine be kept for his personal use. Not surprisingly, her Honour rejected a submission that that was the extent of what the applicant could expect to receive from his involvement in this matter. It is to be noted that neither did this applicant give evidence during the sentence proceedings. Moreover, the only reference to the matter was in the last phone call which was considerably after the consignment had already been delivered. In those circumstances, and particularly given the nature and extent of the criminal enterprise in which he was involved and the rewards which could reasonably be anticipated from it, it was entirely open to the sentencing judge to conclude that the applicant’s motivation was largely for financial reward: see generally R v Kaldor (2004) 150 A Crim R 271 per Howie J at 297.

29 I would reject Ground 3.

Ground 1 (NN)
Grounds 2 and 3 (AP)

30 The sentencing judge indicated that in respect of the applicant NN, she had adopted a starting point of 14 years imprisonment and in respect of the applicant AP, a starting point of 13 years before extending to each of them a discount of 40% for their plea of guilty and assistance to the authorities. The thrust of the submission in each case was that such a starting point was beyond the legitimate range of available sentences for offences of this generic category. It was further submitted that even if it could be said that the offences were found to be within the range then given the sentencing judge’s findings as to the limited extent of their respective roles when taken in combination with their favourable subjective features, the sentences imposed upon the applicants manifestly exceeded what was called for in their particular cases. In other words, because the starting point identified in each case by the sentencing judge was manifestly excessive, then it followed it was submitted, that so too were the ultimate sentences which were imposed.

31 In support of their respective arguments, the parties provided the court with comprehensive schedules of what were said to be comparable cases since the repeal of s 16G of the Crimes Act as and from 16 January 2003. It is unnecessary to descend to a detailed examination of those cases particularly since the Crown Prosecutor candidly acknowledged in an exchange with the presiding judge that he was unable to point to any decision, since the repeal of s 16G, in which a starting point of the order of those nominated in the present case had been identified. Nor was the Crown otherwise able to provide any satisfactory justification for the starting point to which I have referred. In my view when regard is had to the particular circumstances of the present applicants, that is a sufficient basis of itself upon which the intervention of this court is warranted.

32 An allied submission advanced on behalf of the applicants was to the effect that the starting point which was adopted was more appropriate for an offender who had performed a far more critical role than the present applicants, or for an offender who had been involved in an enterprise involving a commercial quantity of prohibited drugs, and in either case an offender who had also pleaded not guilty. See generally R v Speer [2004] NSWCCA 118; R v Otto (2005) 157 A Crim R 525; R v Mas Rivadia and Ors (2004) 61 NSWLR 63; R v Kardoulias and Ors (2005) 159 A Crim R 252; R v Riddell [2009] NSWCCA 96.

33 In that context it is necessary to refer to only one other authority decided since the repeal of s 16G. In Tyler and Chalmers v R (2007) 173 A Crim R 458, Chalmers was convicted after trial by reason of his involvement, at a managerial level, in a conspiracy to import a commercial quantity of cocaine which was in the order of 20 to 30 kilograms. A Crown appeal against the inadequacy of the sentence imposed upon that offender was allowed and he was resentenced to a term of 12 years imprisonment with a non-parole period of 8 years. Simpson J, with whom the other members of the court agreed, considered that the appropriate range of head sentence for that offence was one “of 12-16 years” [at 107]. Her Honour’s assessment of the appropriate range in that case, in which much greater criminality was displayed, and there was no discount to be allowed for, serves to reinforce my view that the starting point adopted by the sentencing judge in the present case was indeed manifestly excessive.

34 There is one further submission which requires consideration given the prominence which it assumed both in the Crown’s written submissions and in oral argument. The Crown placed considerable reliance upon this court’s guideline judgment in R v Wong and Leung (1999) 48 NSWLR 340 in which a range of 7-10 years for “couriers and persons low in the hierarchy of the importing organisation” was specified for offences involving the high range of traffickable (now marketable) quantities of cocaine (1 kilograms – 2 kilograms). Not withstanding the criticism of the guideline itself by the High Court in Wong and Leung v The Queen (2001) 207 CLR 584, that range of sentence has subsequently been said by this court to be still of some assistance: R v Mas Rivadavia and Ors (supra) [at 65]; R v To (2007) 172 A Crim R 121 [at 21]; R v Tyler; R v Chalmers (supra) [at 136].

35 Since the guideline in Wong & Leung was promulgated, s 16G of the Crimes Act has been repealed. The impact of that repeal was referred to by this Court in R v Paliwala (2005) 153 A Crim R 451. James J, with whom the other members of the Court agreed said:

I accept that it should be inferred, as counsel submitted, from what her Honour said in her remarks on sentence that she considered that the range of sentences stated in R v Wong had become less appropriate since the repeal of s 16G and that the range of sentences for the same class of offence would be likely to he higher after the repeal of s 16G. In my opinion, her Honour was not in error in forming such a view.
While there has been some disagreement about some aspects of the effect of the repeal of 16G on sentences for Commonwealth offences, there has been general agreement in decisions of this court that the repeal of s 16G is likely to result in an increase in sentences, as compared with sentences imposed before the repeal of the section.
In Bezan Wood CJ at CL said (at [18]):
The effect of the decisions in R v Studenikin (2004) 60 NSWLR 1; 147 A Crim R 1 , R v Dujeu (2004) 146 A Crim R 121 and Mas Rivadavia is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914 , and the relevant objectives of sentencing, without giving a s 16G discount.
There is likely to be an increase in sentencing patterns as a result of the repeal of s 16G for the simple reason that, while s 16G was in force, a sentencing court in New South Wales was obliged to adjust downwards the sentence it would otherwise have imposed for a Commonwealth offence in order to take into account the absence of remissions in this State, whereas, since the repeal of s 16G, a sentencing court is no longer directed, or authorised, to make such a downwards adjustment to what it considers to be the appropriate sentence. (at pars 38-41)

36 The “s 16G discount” was usually in the order of one-third but it is clear that sentences imposed after the repeal of s 16G are not to be automatically increased by one-third: Clarkson v R (2007) 209 FLR 387 [at 265].

37 The applicants submitted that even adopting the approach contended for by the Crown, the top of the range of 7-10 years identified in Wong and Leung (supra) would have to be multiplied by a factor of 40% in order to reach the starting point of 14 years identified by the sentencing judge in the present case for the applicant NN. I accept the force of that submission and especially, as I have said, when appropriate consideration is given to the particular circumstances of each of the applicants.

38 It might be observed that the sentencing judge was not provided with the same assistance that this Court received. True it is that her Honour was given a number of schedules which contained references to what were said to be comparable cases. However, a number of the authorities referred to were cases decided prior to the repeal of s 16G. I entertain doubts as to the continuing utility of those authorities given the passage of time that has now elapsed since the repeal of s 16G. Similar reservations were expressed in R v Milich [2008] NSWCCA 148 [at 27]. It appears to me that a sufficient period of time has now passed for a new pattern of sentences to have become discernible, albeit one that is appropriately informed by some of the pre-existing authorities. In R v SC [2008] NSWCCA 29 Price J, with whom McClellan CJ at CL and Hall J agreed, concluded that the appropriate range of sentences for “low level trafficable quantities of heroin and cocaine” was between six and nine years imprisonment. In arriving at that range, his Honour appears to have relied upon what statistics maintained by the Judicial Commission revealed about cases decided since the repeal of s 16G.

39 Accordingly, I would uphold Ground 1 (NN) and Grounds 2 and 3 (AP) respectively which contend that the sentences were manifestly excessive.

Ground 3 (NN)

40 This ground raises an issue of parity. It is apparent from the respective sentences which the sentencing judge imposed that her Honour concluded that some slight differentiation in penalty between the applicants was called for. That conclusion is now the subject of challenge on the part of the applicant NN. Both the applicant AP and the Crown seek to uphold the sentencing judge’s conclusion. In my view, it was open to the sentencing judge to draw the distinction which she did. The sentencing judge’s assessment of the respective roles of the applicants indicated that the applicant AP’s role was slightly less significant than that of NN. That distinction was to some extent highlighted by the different offences with which each was charged. Their subjective circumstances were also slightly different. As the sentencing judge observed, the Crown case against the applicant AP was not as strong as that presented against the applicant NN, with the consequence that his “willingness to facilitate the course of justice” by pleading guilty entitled him to greater consideration. There was also the particular challenges which he faced as a result of the accident in which he had been involved.

41 I would reject Ground 3.

42 In resentencing the applicants, I have paid due regard to the various matters adverted to in s 16A(2) of the Crimes Act 1914 (C’th). The governing principle under s 16A(1) of the Act is the imposition of a sentence which is of a “severity appropriate in all the circumstances of the offence”: see Wong and Leung v The Queen (supra) [at 71]. A significant consideration is the fact that the legislature has provided for a maximum penalty of 25 years imprisonment for an offence of this kind. Clearly enough general deterrence must remain at the forefront of the sentencing process. Also important, pursuant to s 16A(2)(a) and (b) of the Act, are the nature and circumstances of the offence, including the role which each applicant played in the commission of the offences. That entails an assessment of what each of them actually did: see The Queen v Olbrich (1999) 199 CLR 270 [at 19]. It is a relevant, but not a determinative, consideration that the quantity of cocaine involved was towards the upper end of the range for marketable quantities of the drug: see generally Wong and Leung (supra) [at 609-610]; R v Otto (supra) [at 84]. The fact that each of the applicants stood to gain financially from their involvement in the enterprise is also a relevant factor. I have also had regard to s 16A(2)(k) which refers to the need to ensure that the person is adequately punished for the offence and to the fact that that requirement extends even to persons occupying a relatively low level in the organisation: Budiman v R (1998) 102 A Crim R 411; R v Klein (2001) 121 A Crim R 90.

43 Finally, I have given due weight to those features of a subjective nature which operate to ameliorate the sentence in the case of each applicant. In so doing, I have adopted the findings of the sentencing judge. In particular I see no reason not to extend to them the composite discount of 40% which her Honour allowed for the plea of guilty and assistance to the authorities.

44 I propose the following orders:

Applicant - NN
1 Grant leave to appeal.

2 Allow the appeal.

3 Quash the sentence imposed in the District Court.

4 In substitution therefore sentence the applicant to imprisonment for 6 years 6 months to commence on 21 May 2007 and to expire on 20 November 2013. I specify a non-parole period of 4 years to commence on 21 May 2007 and to expire on 20 May 2011 on which date the applicant will be eligible for release on parole.

1 Grant leave to appeal.

2 Allow the appeal.

3 Quash the sentence imposed in the District Court.

4 In substitution therefore sentence the applicant to imprisonment for 6 years to commence on 28 May 2007 and to expire on 27 May 2013. I specify a non-parole period of 3 years 8 months to commence on 28 May 2007 and to expire on 27 January 2011 on which date the applicant will be eligible for release on parole.

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21/04/2009	-	Counsel for the parties amended. - Paragraph(s) Coversheet
02/07/2009	-	Anonymise parties. - Paragraph(s) All paragraphs