R v Boulghourgian

[2001] NSWCCA 460

Reported Decision: 125 A Crim R 540

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v. BOULGHOURGIAN (aka SIMONS) [2001] NSWCCA 460
FILE NUMBER(S):	CCA No. 60211 of 2001
HEARING DATE(S):	Monday 19 November 2001
JUDGMENT DATE:	19 November 2001
PARTIES :	REGINA v. BOULGHOURGIAN, Jack (aka SIMONS, Jake)
JUDGMENT OF:	Spigelman CJ at 1/43; Sully J at 44; Greg James J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0452; 00/11/0486
LOWER COURT JUDICIAL OFFICER :	Luland, DCJ.

COUNSEL :	Crown: M. Allnutt App: W.C. Terracini, SC./G.A. Newton
SOLICITORS:	Crown: S.E. O'Connor App: W.H. Parsons & Associate
CATCHWORDS:	Criminal law - appeal against conviction and sentence - adequacy of directions as to "knowingly concerned" - directions suitable to issues at trial - verdicts not unreasonable nor unsupported by evidence - on sentence - trial judge followed sentening parameters prescribed in Wong & Leung (999) 108 A. Crim. R. 531 - that decision overruled in that respect by the High Court, but sentence inappropriate notwithstanding.
LEGISLATION CITED:	Customs Act 1901 Crimes Act 1914 (Cth)
CASES CITED:	Gipp (1998) 155 ALR 15 Jones (1997) 191 CLR 439 M (1994) 181 CLR 487 Morris (1987) 163 CLR 454 Wong & Leung (1999) 108 A. Crim. R. 531 Wong & Leung [2001] HCA 64 House (1936) 55 CLR 499 Astill (No. 2) (1992) 64 A. Crim. R. 289 Neal (1982) 149 CLR 305
DECISION:	Leave to appeal against sentence granted; appeal dismissed.

No. 60211 of 2001

SPIGELMAN, CJ.
SULLY, J.
GREG JAMES, J.



MONDAY 19 NOVEMBER 2001

REGINA v. JACK BOULGHOURGIAN (aka JAKE SIMONS)

JUDGMENT

1 SPIGELMAN, CJ: I invite Justice Greg James to deliver the first judgment.

2 GREG JAMES J: The appellant appeals against conviction and seeks leave to appeal against the severity of his sentence.

3 The appellant was convicted of one count of being knowingly concerned with Elias Helou in the importation of not less than a trafficable quantity of cocaine, an offence under s.233B(1)(d) of the Customs Act 1901, punishable pursuant to s.235 of that Act by a maximum penalty of 25 years imprisonment. The appellant had pleaded not guilty and had been found guilty by the verdict of a jury after a three day trial. The trial was initially also of Helou as well as the appellant, but when problems occurred with Mr. Helou's representation, the prosecution proceeded against the appellant alone.

4 The quantity of cocaine involved was some 114.5 grams. A trafficable quantity is two grams.

5 On 1 June 2001, the learned District Court judge sentenced the appellant to six years imprisonment with a non-parole period of four years, that sentence to commence on the day on which the appellant was taken into custody following the jury's verdict. Prior to that verdict, the appellant had been on bail.

6 The appellant had an earlier criminal record. The trial judge found on sentencing that he had been convicted for supply and possession in 1996, although his Honour noted that there was evidence that he had overcome the drug addiction from which he then suffered.

7 It was submitted on behalf of the respondent that the evidence at trial disclosed the following:-

"The prosecution evidence presented at trial is that 114.5 grams (pure – 196.9 grams net weight) of cocaine was concealed in a car radio cassette player which had been sent from the United States in a package, together with a car rear vision mirror. The package was addressed to a 'Terry Burger' of 'care of L.J. Imports, 343 Pitt Street, Sydney'. At about 4.15 pm on 4 December 2000, a customs officer examined the parcel containing these items at the premises of freight importers, Federal Express. He located a bundle bound in black tape inside the cassette player. The bundle was tested for narcotic goods that gave a presumptive reading for cocaine. The matter was referred to Federal Police who removed the drug and reconstructed the parcel with an inert substance (and sample of the original substance).
At about 11.50 pm on 4 December 1999, two men approached the front delivery counter of Federal Express and spoke to the clerk, Mr. Blacker. Mr. Blacker had seen both men previously, including the appellant, who he had seen once previously. The other man he knew as Louie. There was a conversation and the appellant was introduced by 'Louie' as his 'friend, Terry'. A package number was asked for and it was ascertained by computer search that it had not yet cleared customs. A conversation occurred with 'Louie' and another employee, by phone, in relation to the parcel and he asked if he could wait. Mr. Blacker said he was locking up and going home but suggested that the men wait outside the roller door in case the item was cleared. He saw the men waiting. During this period the customs broker, Ms. Hall, was contacted and there was discussion about the item being released that day. The appellant's mobile phone number was given as a contact number. Both men participated in conversation. Later, phone calls are made enquiring from a person named 'Terry'. There were a number of calls enquiring about the parcel.
At 2.50 pm on Monday 6 December 1999, following conversation with police, Mr. Blacker again met the appellant and the person 'Louie'. The appellant signed for the parcel in the name of Terry Burger. Police were present. The appellant left the building and got into a car that drove off. Police followed for a short distance. The appellant was the passenger and Helou, the driver. After a short period the vehicle stopped and the appellant was seen to go to a large dumpster and throw in a box. He re-entered the vehicle and it drove off. The vehicle was stopped not long afterwards. The package containing the control delivery bundle was found on the floor of the vehicle on the passenger side floor. Also located were a number of pieces of paper (receipts and torn packaging from the parcel), the car mirror from the parcel, a screw driver, two mobile phones and receipts for international money transfer. The international money transfer receipts were each in the sum of $9,000. Two were in the name of Helou and two in the name of the appellant. Documentary evidence was tendered of the appellant sending money overseas to Los Angeles, on 25 November 1999 and 3 December 1999 using his passport as identification. The appellant was spoken to but made no admissions.
Police searched the appellant's home on the same day, however, nothing of interest was located. The home of the co-accused Helou's parents was searched and a quantity of cash, cocaine, ammunition and receipts for the transfer of relatively large sums of money were located.
Evidence was given that fingerprints were located on the package containing the controlled delivery, located on the floor of the vehicle after it was stopped. Evidence was given that the only fingerprint located was that of the man Helou and that this appellant's fingerprints were not located."

8 The submissions for the appellant drew attention to the following matters in addition to those referred to in the submissions for the respondent.

"The appellant attended FedEx on 4 December 1999 with Helou but they were unable to collect the package at that time for the purported reason that it had yet to clear customs. At that time, although Helou did most of the talking, the witness Hall said that the appellant 'said a few things'. Although there is reference in Hall's evidence to talking 'about clearing this package about clearing procedures', it is submitted that it is not clear on the face of the transcript whether the witness was referring to the appellant's contribution to the conversation or the conversation as a whole (in which case those matters may have emanated from Helou). Furthermore, it is submitted that it was likely on the evidence that all of the talking on the mobile phone was conducted by Helou, although there was no dispute that the number given to FedEx (by 'Louie', ie., Helou) was the appellant's mobile phone number.
The appellant again attended FedEx with Helou on 6 December 1999. On that date, the appellant physically collected the parcel and when doing so printed and signed the name 'Terry Burger', the name of the person to whom the package was addressed. It is noted that the witness Blacker agreed in cross-examination that he had no memory of the appellant actually saying that his name was Terry Burger at the time.
The appellant was observed to be looking down towards the console as police followed the car that he was in with Helou. The appellant was also observed assisting Helou rip open the package. When giving evidence the appellant agreed that at one point he was looking down at the console.
In a subsequent search of Helou's house a large amount of cocaine, $40,000 cash and ammunition were found. A search of the appellant's house was conducted with nothing of interest being found."

9 The appellant gave evidence in his own defence. The submissions to this court of the appellant made the following points:-

"5.2 It is submitted that the appellant's explanations relating to the various aspects of the Crown case referred to in 2. above were not inherently incredible or implausible. In summary, such explanations were as follows:-
5.2.1 The appellant gave a full explanation as to why he was spending large amounts of time with Helou and various documentation was tendered in support of such explanation, none of which was contradicted by any other evidence in the trial.
5.2.2 The appellant have a full explanation as to the circumstances under which he agreed to transfer money overseas at Helou's request after Helou told him that he didn't have any ID on him at the relevant times.
5.2.3 The appellant gave a full explanation as to why he collected the parcel and signed for it as 'Terry Burger' (having been told that Terry Burger was Helou's employee and that he was away but that the parcel had to be collected in his name). Under cross-examination, the appellant gave evidence that, although he was uncomfortable doing such a thing, he wanted to help Helou out as a prospective business partner.
5.2.4 The appellant gave evidence that the first time he suspected something may be amiss was in the car after he saw the black ball.
5.3 Helou was clearly implicated in the importation by virtue of the drugs and money that were found at his house and the fact that his fingerprints were located on the black ball. Nothing incriminating was found at the premises of the appellant nor could he be linked to the offence in any way other than as set out in 2. above. It is also submitted that Helou's involvement was reflected in diary entries in Helou's diary consistent with requests to others to transfer amounts at his request, there being no evidence that any of those other people had any relationship to the appellant or to the proceedings.
5.4 In circumstances where the explanations given by the appellant were, on their face, at least plausible, and where the preponderance of evidence points to the guilt of Helou, it is submitted the jury's finding beyond a reasonable doubt that the appellant had the requisite knowledge was unreasonable and unable to be supported by the evidence.
5.5 It is noted in the present case that the Crown bore the onus throughout of proving the requisite knowledge on the appellant's part and it is in that context that the submission in paragraph 5.4 above is made: cf. Regina v. Thomas (New South Wales Court of Criminal Appeal, unreported 28 May 1996)."

.

10 The respondent submitted:-

"There is clear evidence of the appellant sending large sums of money overseas, attempting to collect and in fact collecting the parcel in a false name. There was evidence of his being party to opening the parcel and disposing of part of the contents a short time afterwards. The appellant gave evidence and was cross-examined. He gave explanations for each aspect of his incriminating involvement. It is clearly not the law that the jury must accept his explanations. It is a matter for the jury to determine that the prosecution case is proved beyond reasonable doubt on the evidence. There is material that the jury may not accept such as Helou opening the parcel whilst driving the car and removing the drug from the cassette player. The appellant stating that the drug bundle ended up on his side of the car by Helou throwing it at him, within the confines of the car and without being observed by nearby police. The jury would be entitled to reject his explanations for sending the money overseas and, using the false name and the circumstances of collecting the parcel. The jury has had the advantage of seeing and hearing the evidence."

11 This recital of the various submissions gives context to the grounds of appeal. On conviction, three grounds have been asserted. They are:-

"1. The trial judge erred in his directions to the jury as to what the Crown was required to prove to establish the element of knowledge on the appellant's part.
2. The trial judge erred in his directions to the jury regarding unidentifiable fingerprints located on the black ball containing the cocaine.
3. That the verdict was unreasonable and unable to be supported by the evidence."

Ground one

12 The trial judge directed the jury as to the requirement of the element of the accused being knowingly concerned in the offence as follows:-

"What is the offence? The offence is that he knowingly concerned himself in that importation, together with Mr. Helou, and that the importation was of a prohibited import under the Customs Act, namely cocaine, and it was more than a trafficable quantity."

13 His Honour defined importation as:-

"… simply means to bring something within the boundaries of our country and that the crown says you will be satisfied that that is the case because the package was received at FedEx and it was analysed and ultimately it was given over to the police and there was the controlled delivery and ultimately passed on or collected by the accused and the accused, together with Mr. Helou, went off in the car with it. It was well within the boundaries of our country and therefore the Crown says to you you will be satisfied that there was the importation of the prohibited import."

14 The offence had been charged as having been committed between 4 and 6 December 1999 that is, between the date on which the appellant, together with Louie (Mr. Helou), went firstly to the cargo section to collect the parcel and the date upon which they were apprehended with the prohibited imports, 6 December.

15 At p.16 of his summing-up, the trial judge defined the requirement of knowingly concerned more closely:-

"What the case is all about is the requirement of the Crown to prove that the accused was knowingly concerned with Mr. Helou in this matter. Therefore, I am required to tell you what the law means when it speaks about a person being knowingly concerned in an importation. To be knowingly concerned means to do something which involves a practical connection with the offence and all that is involved with the offence. The operative words there are to do something which involves you in that practical connection.
Simply to stand by and be aware that somebody is importing drugs and for you to do nothing about it does not mean that you are knowingly concerned in the importation. The law requires that you must actively do something in connection with the crime to facilitate its importation, to be in some way physically connected with the act.
The knowledge is something that the Crown must prove. We know, and it has not been argued, that in fact the accused collected the package from FedEx and that when it was opened the bag with the tape around it was ultimately shown to have contained the cocaine. The fact in itself that the accused collected the item and that he was in the car in which the item was found does not prove in itself that he was knowingly concerned with the importation. What is required to be proven is that he knew he was – knew that what he was collecting was cocaine and he was knowingly concerned with that importation.
So it is that state of mind, that knowledge that the Crown has to prove to you, that he knew what was being imported and he was knowingly connected with it, knowingly participated in that importation. The fact of knowledge may be proven to you, in various ways you may prove a person's knowledge. You may prove a person's knowledge by what a person says. If the person says he knows what the package contained, well you would act upon that statement that he knew, that he had the knowledge.
That is not the case here. There is no direct evidence, as it were, that the accused knew. There is no evidence of any statement on his part or anybody else's part that he knew what was in the package. But that is not the only way in which the Crown may prove to your satisfaction, to the extent that it must, a person's knowledge. Knowledge can be inferred from things that are done by a person. You may look at a person's acts and from those various acts that a person does you may infer that he knew what the substance was and that he knowingly thereby concerned himself in the offence by acts he did.
The Crown says that that is what this case is all about. The Crown says to you you will look at the acts of the accused, what he did, how he did them and his connection with Mr. Helou in doing them, that you will from those acts infer that he is guilty of the crime. I will come back to what the Crown says those acts are shortly but that is the way in which the Crown presents its case to you to prove the accused's knowledge."

16 His Honour further on in the summing up, directed the jury that for them to find the appellant guilty, they must be satisfied on the facts accepted by them beyond reasonable doubt that the inference of the appellant being knowingly concerned was the only inference the jury could draw. That direction was given in association with his Honour putting the appellant's defence that he had been present and did those things the Crown asserted knowingly but did them as a favour to Mr. Helou because he was embarking upon a business venture with him.

17 It was put to the jury that his defence was that he used the name "Terry Burger" as a matter of convenience to Mr. Helou, not knowing what it was that was being imported but believing that it was something to do with car parts. His Honour also put to the jury the Crown's contention that the on- going association, the overseas sending of the money and the appellant's presence during the conversations Mr. Helou had with FedEx operatives without demurrer, were such as to show the appellant's knowing and active involvement in the importation arising from his being party to the collection of the package. The case was put in this way:-

"But the Crown says you will not see it that way. You will see it as the accused being party to the collection of this package. And it is not disputed that it was in fact the accused who went in and got the parcel. That cannot be disputed. There is the physical evidence for you to see yourself that he went and got it. And it is not in dispute that he used the name Terry Burger, the name to whom the package was addressed. The Crown says to you that that is another factor that you will take into account, that the accused is using, as it were, a false name to collect the package. The accused says, as to that, well I am there, Mr. Helou told me that it was his employee and that it would be embarrassing for him as the boss to be collecting the parcel so I obliged and collected it for him. That was on the first occasion that he did it and on the second occasion again he was there and so as a matter of convenience he went and collected it.

The Crown says to you you will reject the accused's version about his innocent association with it and that you will see it as a guilty association of him collecting the parcel. The Crown says that beyond the collecting, he also showed interest in the parcel in as much as he was observed to have been looking down towards the console area where, the Crown argues to you, the likelihood is that the parcel was being opened, as it were, very shortly after it was collected and that the accused himself had taken some papers – ripped off some of the parts of the package and threw them out of the car and ultimately deposited the box with its identification features having been removed into the bine that it was placed in.
The Crown says to you that all of that, the payment of the money, followed by the collection of the goods and the specific interest in it there afterwards all shows that he was acting together with Mr. Helou. The Crown's case is it is not a question of who or which of them committed this offence, the Crown's case is they both were committing this offence. The argument has been well look all of the feature of this case point towards Mr. Helou (sic). HE was the one whose fingerprint was able to have been identified on the black ball. He was the one that had some cocaine in his home. He was the one who had sent a whole lot of other monies. He was the one who had $40,000 cash. He had all of the earmarks of being the person who was involved.
Well the Crown probably accepts that argument that Mr. Helou certainly was involved, but the Crown argues to you the evidence will show you beyond reasonable doubt that the accused was also involved knowingly concerned in this importation. Whether he was as involved or not as involved, the Crown does not argue. The Crown certainly accepts that Mr. Helou was involved and argues that the accused also was involved."

18 It is submitted that the trial judge erred in failing clearly to direct the jury as to the time at which the Crown case showed the appellant had the relevant knowledge. It is submitted that the jury should have been directed explicitly that the appellant needed to have the relevant knowledge at the time of his actual physical involvement, which it was submitted was as at the handing over of the package and that the jury had not been so directed.

19 Such a submission is in disregard of the way in which the Crown put its case, and of the directions as to that case given by the learned trial judge I have set out. It is clear that there was a case put of this appellant and Helou having embarked upon a joint endeavour to import the drugs. It is apparent that this was the way in which the trial judge perceived the matter from the terms of his summing up. No application for re-direction or complaint of any deficiency was made at the time by trial counsel. This suggests that counsel similarly perceived the Crown case. Indeed, the argument that was advanced on the appellant's behalf at trial was that at all times he had been duped. No question of any issue about the coincidence between involvement in the importation and having necessary knowledge arose. However, here it was submitted on his behalf that the jury might well have returned the guilty verdict on the basis that the appellant found out in the car, after the physical handing over of the parcel, that the substance was cocaine.

20 I see no danger of that kind in the way in which the whole of the directions were given. It was left to the jury as an alternative hypothesis that he was a dupe. There was no suggestion that such a submission should be discounted because the appellant found out there were drugs in the black package (the black ball) in the car.

21 In the event that his remission of monies overseas and his assistance to the obtaining of the package at the FedEx counter was in ignorance of what was really going on, the submission that he was a dupe would at least have raised a reasonable doubt. The appellant gave evidence and the jury were well able to appreciate the evidentiary issues which, after all, were within a very narrow compass. It is apparent the jury rejected the appellant's explanation. Nor is there ay complaint as to how his Honour put the directions on this matter.

22 I see no basis upon which, in the context of this trial, this direction concerning "knowingly concerned" might be regarded as erroneous, nor do I see any basis on which, having regard to the way in which I consider the Crown case was perceived, leave should be granted. I would refuse leave to argue this ground.

Ground 2

23 It is submitted that his Honour erred when he directed the jury that:-

"The only person whose fingerprint was on the item was that of Mr. Helou. That is correct, the only identifiable print was Mr. Helou's. The evidence of the police was that there was some other fingerprints there that were not able to be identified. You cannot speculate that they were the accused or were not the accused. The only evidence is that the only identifiable print was that of Mr. Helou."

24 It is submitted that this direction was unfair to the appellant as it tended to suggest it might be that the prints, if able to be identified, would have been the appellant's. No application was made for re-direction in this regard. I see no basis upon which the direction can be regarded as in any way unfair to the appellant. Nor was it apparently perceived to be so at trial. I would refuse leave to argue this ground.

Ground 3

25 It is contended that the jury ought to have entertained a reasonable doubt on the evidence. The submission that is put in that regard is that the appellant's explanations should have been accepted by the jury. It is put that they were not inherently incredible or implausible. It is submitted that because there was substantial evidence to show that Helou was guilty and that the explanations given by the appellant were "at least plausible", the jury should have had a reasonable doubt that the appellant had the requisite knowledge. The submission recognises implicitly that the appellant had the requisite concern, ie., involvement in the actual importation.

26 What is left at issue in the submission is the question of his knowledge. His knowledge was to be inferred from all the circumstances proved and particularly ascertained in the light of his evidence in chief and of his evidence under cross-examination. It is sufficient to say that his evidence gave, at best, plausible explanations and explanations which, on their face, a jury might well have rejected.

27 The test applicable in such circumstances has been enunciated in a number of cases including Gipp v. The Queen (1998) 155 ALR 15; Jones v. The Queen (1997) 191 CLR 439; M v. The Queen (1994) 181 CLR 487 and Morris v. The Queen (1987) 163 CLR 454.

28 There was abundant evidence upon which it was open to the jury to convict, and the assessment of the appellant as a witness together with the assessment of the plausibility of his explanations were very much matters for the jury (M (supra)). I see no reason to consider that it was necessary for the jury to have a reasonable doubt in those circumstances.

The application for leave to appeal against sentence

29 The learned trial judge was of the view that the factual material disclosed that the appellant had played a very significant role in the importation of the prohibited drug and was one of the principals of that importation. The quantity of the drug was substantial. His Honour found it had a street value of between $50,000 and $70,000. His Honour found a lack of remorse and considered the matters referred to in s.16A of the Crimes Act 1914 (Cth). His Honour applied the allowance provided for by s.16G of the Crimes Act 1914 (Cth). However, his Honour said:-

"I am guided in my sentence by the case of Regina v. Wong & Leung [1999] NSWCCA 420."

30 His Honour said at p.5 of his remarks on sentence, when dealing with that case:-

"I am guided in my sentence by the case of Regina v. Wong & Leung [1999] NSWCCA 420 delivered on 30 July 1999 in which it was said that a general pattern of sentence for a case of drug importation where the quantity was between two grams and 200 grams should be in the range of five to seven years, where those involved were couriers or persons low in the hierarchy of the importation.
In this case, the quantity falls above the mid-level of that range, being 14.5 grams of pure cocaine. The prisoner's involvement however was something greater than one at the low level of hierarchy. In all of the circumstances, I have come to the view that an appropriate sentence is one of six years imprisonment."

31 Thus it seems that his Honour applied the guidelines set out by this court in Regina v. Wong & Leung (1999) 108 A. Crim. R. 531 and in particular applied the pattern of sentences provided in that decision. His honour has had regard to the mid-level of the range referred to in that decision, when considering the quantities of drugs, and when he referred to general deterrence, and that in the context of profit, it appears to me that his Honour's sentence turned on his application of the decision in Wong & Leung (supra).

32 In Wong & Leung v. The Queen [2001] HCA 64, the High Court of Australia, by majority, allowed the appeal and set aside the order of the Court of Criminal Appeal, remitting both matters to this court for further hearing and determination conformably with the High Court's decision. It is sufficient to note that the High Court reached the conclusion that the guidelines set out in the judgment of this court were inconsistent with the proper application of s.16A of the Crimes Act 1914 (Cth), and hence the application by his Honour of those guidelines in this matter must be considered as being in error.

33 I would therefore grant leave to appeal against sentence. However, it remains to consider whether the court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed. It is only if the court is of this view that the court is empowered to quash the sentence and pass another sentence in substitution for that imposed in the exercise of discretion by the trial judge: s.6(3) of the Criminal Appeal Act 1912; House v. The King (1936) 55 CLR 499 at 504.

34 Even though three is error detected in the reasoning process of a trial judge, s.6(3) does not enable this court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed: Regina v. Astill (No. 2) (1992) 64 A. Crim. R. 289 per Sully, J. at 303 and Lee, AJ. at 304.

35 Should the court be of the view the same or a more severe sentence is warranted, it should not interfere (unless in the special restriction circumstances that are applicable to the latter case: see Neal v. The Queen (1982) 149 CLR 305).

36 In the present case, the unchallenged evidence and the verdict clearly establish a serious infringement of s.233B by the appellant, acting as a joint principal with Mr. Helou. There was imported a substantial quantity of prohibited drugs by a scheme involving the prior remission of funds overseas, and a technique of some sophistication. Further, the appellant was party to a concealment of the identities of those involved. The scheme plainly had the potential for considerable profit at the expense of the vulnerability of Australia's importing systems, and the potential of causing severe harm to the community.

37 There is no reason to doubt any of the factual findings of the trial judge, nor his application to those matters of s.16A of the Crimes Act 1914 (Cth). His Honour applied, as he was required to do., s.16G.

38 Notwithstanding this is the first time in custody, and the submission that the sentence should have been less, notwithstanding his particular subjective circumstances to which his Honour referred in his remarks on sentence and which included his age, his close knit family, the circumstances of his relationship with his girlfriend, and his avoidance of his earlier drug addiction, I am not persuaded that there should have been any sentence other than that originally imposed by the trial judge.

39 The trial judge took into account the prospects of the prisoner for the future, including the prospects of the prisoner's parents' health. The trial judge concluded, when applying the relevant criteria under s.16A, that those matters did not affect the appropriate level of sentence. I agree.

40 Having regard to all the subjective matters and the objective criminality and taking into account the various single instance decisions prior to Wong & Leung (1999) 108 A. Crim .R. 531 both of the courts of this State and of other courts of other States referred to in that decision at pp.547-555, I see no inconsistency in this sentence requiring correction, and indeed, in my view, it is the proper sentence, synthesising all relevant considerations.

41 I therefore have come to the view that the appropriate course to take is to dismiss the appeal.

42 The orders I propose are that leave to appeal against sentence be granted, but the appeal be dismissed.

43 SPIGELMAN, CJ: I agree.

44 SULLY, J: I too agree.

45 SPIGELMAN, CJ: Accordingly the orders are as indicated by Justice Greg James.

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