R v Cas - [2005] NSWCCA 192

Reported Decision:
160 A Crim R 451

New South Wales

Court of Criminal Appeal

CITATION:
R v C.A.S. [2005] NSWCCA 192

HEARING DATE(S): 18/05/2005

JUDGMENT DATE:

18 May 2005

JUDGMENT OF:
Simpson J at 27; Buddin J at 1; Hall J at 28

DECISION:
Leave to appeal refused.

CATCHWORDS:
Sentence - offence of aid and abet importation of commercial quantity of MDMA - limited role - very large quantity of drugs - assistance to authorities - parity.

LEGISLATION CITED:

Crimes Act (Cth)

CASES CITED:
Postiglione v The Queen (1996-7) 189 CLR 295
R v Budiman (1998) 102 A Crim R 411
R v Gallagher (1991) 23 NSWLR 220
R v Olbrich (1999) 199 CLR 270
Wong and Leung v The Queen (2001) 207 CLR 584

PARTIES:
Regina
C.A.S.

FILE NUMBER(S):
CCA 2005/274

COUNSEL:
MJ King (Cth Crown)
RJ Button (Applicant)

SOLICITORS:
Commonwealth Director of Public Prosecutions
Ford Gaitanis (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0851

LOWER COURT JUDICIAL OFFICER:
Solomon DCJ

2005/274

SIMPSON J
BUDDIN J
HALL J
WEDNESDAY 18 MAY 2005

REGINA v C.A.S.

Judgment

1 BUDDIN J: This is an application for leave to appeal against a sentence of 8 years imprisonment with a non-parole period of 5 years which was imposed upon the applicant in the District Court.

2 On 31 October 2003 the applicant pleaded guilty to aiding and abetting the importation of not less than the commercial quantity of MDMA (commonly known as ecstasy) into Australia. The drugs were located on 11 April 2003 when a shipment of freezers which had been sent from Malaysia and consigned to the applicant was searched by the Australian Customs Service. Located in three of the freezers was a quantity of powder which upon analysis was found to constitute 136.913 kilograms of pure MDMA powder. Its street value has been estimated at approximately $115 million. The Australian Federal Police commenced a controlled delivery of the container. On 26 April 2003 the controlled delivery was stopped when the principal overseas target, who was in Australia, attempted to leave the jurisdiction. The applicant was arrested and charged that same day.

3 The maximum penalty for the offence is imprisonment for life and/or a fine of $825,000. The commercial quantity prescribed by the legislature for MDMA is 500 grams.

4 The applicant was interviewed by police upon his arrest. He subsequently provided two statements to police in which he outlined his involvement in this offence. The facts upon which he was sentenced are derived from that material. They are set out in the following extract which is taken from the sentencing judge’s Remarks on Sentence:

In his interviews and statements the prisoner stated that he commenced work as a customs data entry clerk with O’Farrells Global Logistics Pty Ltd in August 1999. O’Farrells Global Logistics merged with Maersk Logistics Pty Ltd in September 2000. During this period the prisoner continued his employment with the merged company and worked in the export section. In September 2002 he began working in the import section where he liaised with clients, requested and prepared import documents for customs clearance purposes, lodged documents with the Australian Customs Service and arranged for the delivery of freight.

The prisoner said he had known the co-accused Jessica Somogyi (“Somogyi”) socially since 1999 and that in January 2003 Somogyi introduced him to the co-accused Dario Milicic (“Milicic”). During this first meeting the prisoner says that Milicic asked him whether he was interested in assisting with the importation of computer monitors and electrical goods from Asia. The prisoner said that he told Milicic that Maersk Logistics could arrange for the goods to be imported and gave Milicic his business card.

The prisoner said that in late January 2003 Somogyi asked him to meet her at a bar. While they were at the bar Milicic arrived. The prisoner said that he was not expecting to see Milicic and that Milicic said to him:

“You will definitely be working for us. I say this because I have information about you, about Horizon and about your dad. I know you live in Manly in a flat, I know Horizon has an office in Zetland and I know your’re (sic) your father is a taxi driver. We know he lives in Lang Road and drives an orange taxi, 1794 is the registration. We can use this information against you, do you understand what I am talking about.”

The prisoner states that Milicic then left the bar and returned a short time later with the co-accused NP. NP questioned the prisoner about Maersk Logistics and the prisoner’s role there and asked him whether he had any experience importing drugs. NP told the prisoner that he was going to import some material, asked whether he would be interested in assisting and said that he would be compensated for his involvement.

“You know we have information about you. You are not to mention to anyone about these meetings. You are just to do the work in your normal procedure. If we find out that you have contacted the Police there will be dire consequences, do you understand?”

“I don’t want to know what’s concealed, all I’m doing is just handling the container to (sic) for you. I don’t really want any interest in whatever it is that’s in the container and I don’t want to know how much. You just need to give me the documents for getting it customs cleared and we can store the product in our warehouse and you can take delivery when you choose.”

Following the initial meeting with Cheng, Somogyi arranged for the prisoner to attend a further meeting at which the prisoner met Cheng and NP. At that meeting the prisoner provided Cheng with the documents Cheng had previously asked him to provide – a list of goods commonly imported from Malaysia, a fumigation certificate, a packing declaration list and contact details for Maersk Logistics in Malaysia. During this meeting Cheng and NP asked the prisoner a number of further questions about importation procedures and the prisoner answered those questions.

In late February 2003 Cheng arranged to meet the prisoner at Maersk Logistics to make arrangements for the consignment. At that meeting Cheng asked him to arrange a quote for the cost of forwarding the freight from Malaysia to Sydney, arranging the customs clearance and collecting, storing, unpacking and delivery of the consignment.

The following day the prisoner met NP and provided further information regarding importation procedures to NP.

“If it looks all good then just say ‘we’ve received the container and there is nothing broken’.”

“We have received the container, we have unpacked it and its all OK there is nothing broken.”

The prisoner has stated that he told Cheng the consignment had been delivered because Maersk Logistics had closed for the night and he was unable to remain there while the container was delivered. The plan was that the consignment would be delivered to Maersk Logistics where it would be stored, unpacked and freezers earlier indicated by Cheng would be forwarded to another place. The prisoner was arrested after the consignment was delivered to Maersk Logistics but prior to it being unpacked.

5 The sentencing judge concluded that:

…the role of the prisoner in the importation was that of the Customs clearance officer. I am satisfied that he played a junior role in the importation. I am satisfied that that role included advising members of the drug syndicate of the means of bringing drugs into Australia.

6 His Honour however also observed that:

significant

7 As his Honour observed there were a number of subjective features which were to be weighed in the applicant’s favour. He was a single man, aged 31 who had a good employment record and no prior convictions. He pleaded guilty at the earliest opportunity and had displayed significant contrition for his actions.

8 Of particular significance was the fact that the applicant had rendered assistance to the authorities which the sentencing judge described as being of a “high order”. To reflect that finding, the sentencing judge allowed an overall discount of 50%, which was divided equally between past and future assistance, from the sentence that would otherwise have been appropriate. In arriving at that adjustment of the sentence for the applicant’s assistance to the authorities, the sentencing judge had regard to the fact that the applicant had been serving, and would continue to serve, his sentence in protective custody.

9 The sentencing judge also had regard to the fact that the applicant’s involvement “was to some degree, precipitated by threats made to him by members of the syndicate. There is no evidence before me as to any benefit the offender was to derive from his involvement in the importation, and I am therefore unable to find that the offender’s participation in the drug importation was based on his expectation of financial gain.” It may be thought that they were rather generous findings particularly since the applicant did not give evidence at the sentence hearing. Moreover, he had denied having been subjected to threats when first interviewed by police and had said that he had been promised by a co-offender “that he would be compensated for his involvement”.

10 The first ground upon which the applicant relies is that the sentence imposed was manifestly excessive. It was not asserted that the sentencing judge had fallen into error of any identifiable kind. Furthermore the applicant acknowledged that he was unable to rely upon s 16G of the Crimes Act (Cth), which had been repealed prior to the commission of this offence.

11 The submission began with the proposition, which may be accepted, that the sentencing judge’s “starting point”, before the discount for assistance was applied, must have been 16 years. That, it was contended, exceeded the applicable range given the subjective features of the case to which reference has already been made, and particularly given his Honour’s favourable findings as to the applicant’s role in the offence and the factors that motivated him to commit the offence.

12 Particular emphasis was placed by counsel upon the fact that the applicant had been assessed to have performed only a “junior” role in this enterprise. The applicant’s role may well have been a subsidiary one, particularly when it is compared with what other persons in the enterprise did. Nevertheless, it was far from being an unimportant one. The applicant provided valuable information, based upon his experience working in the area of customs clearance, which was designed to facilitate the importation of what transpired to be a very large quantity of prohibited drugs. In doing so, it was clear that he had misplaced the trust which his employers had reposed in him.

13 Moreover, the fact that his role was a “junior” one serves to reduce his criminality to only a limited extent, a matter which this court has frequently recognised. In R v Budiman (1998) 102 A Crim R 411, for example, Wood CJ at CL (with whom Beazley JA and Dunford J agreed) observed:

Smith

Le Cerf

"The simple truth, that a man who participates in such an organisation at any level -- I repeat at any level -- must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organised crime. But I wish it to be clearly understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive."

Smith

Muanchukingkan

Laurentiu

Thiagarajah

"There is, in my view, no significant difference in this context between one who helps as a courier and one who assists in transforming the goods during a stage in the total operation." (at 413-414)

14 Nonetheless, it was appropriate for the sentencing judge to make an assessment of the applicant’s role in this enterprise in determining his overall criminality: See R v Olbrich (1999) 199 CLR 270. However it is also clear that the quantity of the prohibited substance in question still remains a relevant consideration in fixing the appropriate sentence. In Wong and Leung v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ observed that:

The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament’s distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities. No doubt, within both of these categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. (at par 67)

15 We were informed by the Crown that the present case appears to be the largest seizure of MDMA for which any offender had been sentenced in NSW. That factor must play its part in the sentencing process, although clearly it ought not be permitted to overwhelm other relevant considerations.

16 The applicant referred the Court to sentencing statistics maintained by the Judicial Commission for this offence since the repeal of s 16G. The limited utility of such information is well-documented. There are two particular problems which arise in the present case. First, the number of cases in the sample is still quite small. Secondly, it is not possible (given the form in which the data has been furnished to the court), to determine whether a particular sentence is, or is not, affected by subjective features such as a plea of guilty and, more importantly, a discount for assistance. That latter consideration is a not unusual feature of sentences imposed for Commonwealth drug offences and can, as the present case demonstrates, have a significant impact upon the ultimate sentence. For those reasons, I have derived much greater assistance, in deciding whether this Ground of Appeal has been made out, from the schedule of what are said to be comparable cases which the Crown provided to the Court. A copy of the Crown’s schedule of cases is attached to these reasons.

17 Before departing from the question of providing discounts for assistance to the authorities, it is timely to recall what was said by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220. His Honour observed:

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. (at 232)

18 For all those reasons, I am of the view that the sentence imposed upon the applicant was well within the sentencing judge’s discretion. Accordingly, I would reject this Ground of Appeal.

19 The second ground of appeal asserts what is said to be “erroneous disparity with regard to the sentence imposed” upon a co-offender, NP, who was sentenced to a term of 11 years imprisonment with a non-parole period of 7 years for his role in the importation.

20 It is acknowledged by the applicant that there are a number of common features between the case which he advanced and the one presented by NP. Each made full admissions, each pleaded guilty at the earliest opportunity, each demonstrated remorse and each was provided with a 50% discount on sentence for his assistance to the authorities.

21 On the other hand, however, it was submitted that there were also a number of features of the case which placed the applicant in a more favourable light than NP. First, there was the fact that the sentencing judge found that NP was more involved in the planning and organisation of the enterprise and that he occupied a higher position in the hierarchy of offenders than did the applicant. Moreover, his involvement had extended over a longer period of time. Secondly, NP, unlike the applicant, stood to receive a “considerable financial benefit” from his involvement and was thus motivated by greed. Thirdly, there was no evidence of any threats operating upon NP, whereas there were in respect of the applicant. Fourthly, the sentencing judge found that NP had not been entirely truthful in giving evidence. He rejected, for example, his claim that he believed that the importation involved only a “few thousand pills”. Finally, unlike the applicant, NP was not a man of entirely unblemished character, particularly given that telephone intercepts revealed that he had arranged for the supply of illicit drugs to a number of persons.

22 The submission, in essence, is that given the list of features that distinguished their respective cases, there has been “insufficient differentiation” in the sentences imposed, and that accordingly the applicant entertains a justifiable sense of grievance.

23 It is to be observed that the applicant and NP were sentenced by the same judge. His Honour was particularly aware of the need to have regard to the principles of parity. Indeed his Honour referred, in terms, to each of the matters which distinguished their respective case. In Postiglione v The Queen (1996-7) 189 CLR 295, Dawson and Gaudron JJ said:

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (at 301-2)

24 In the final analysis, the sentencing judge imposed a head sentence upon the applicant which is approximately 27% shorter than the sentence imposed upon NP. Conversely, NP received a head sentence which is approximately 38% longer than the one imposed upon the applicant. Having given careful consideration to the manner in which the sentencing judge approached this aspect of the sentencing task, I am not persuaded that it has been demonstrated that his Honour fell into error of the kind asserted, or, putting it another way, that his Honour failed to maintain a “due proportion” between the two sentences.

25 I would also reject this Ground of Appeal.

26 Counsel for the applicant invited the court to refuse leave to appeal in the event that it formed the view that neither Ground of Appeal was made out. Counsel urged this course in order that the applicant, so it was submitted, could preserve his entitlement to bring a further application should it subsequently transpire that he entertained a “justifiable sense of grievance” in respect of sentences which may be imposed in the future upon co-offenders, that is other than NP. Counsel relied upon Postiglione (supra) in support of this proposition. In view of counsel’s stance, and as the Crown did not oppose the court taking that course, I propose, in those circumstances, that leave to appeal should be refused.

27 SIMPSON J: I agree.

28 HALL J: I also agree.

29 SIMPSON J: The order of the court will be as proposed by Buddin J. So far as this matter is concerned there should be an order that there be no publication of any matter that would identify the applicant or the co-offender who has been named in the course of the hearing.

**********

1. Name	Date	Offence	Amount (kgs-pure)	Drug	Plea	Appeal	Result	Sentence [yrs+mths]	2. [1]Facts/Aggravating Factors 3. [2] Mitigating Factors
Head	N-P
Blakeman, K [1999] NSWCCA 415	09.09.99	233B(1)(cb) x 1	0.025	MDMA	NG	S	D	3½	2+3m[1] D conspired with A to dispatch parcels containing narcotics from Germany, addressed to false name post boxes opened by A. D previously charged with self-administration of drugs but no conviction recorded. [2] Extensive character references, wife and children will suffer emotional and financial hardship as a result of D’s imprisonment.
Dizel, MF	23.08.96	233B(1)(b) x 1	0.041	MDMA	G	S	D	10	7½[1] 24.2.95, D arrived at Sydney airport on flight from Bali, narcotics concealed internally. D to be paid $5,000 upon delivery of drugs in Sydney. In 1989 D sentenced in Japan to 6 years imprisonment for importing 1 kg of cocaine. [2] Plea of guilty.
Harvey, AF [2000] NSWCCA 253	13.07.00	233B(1)(c) x 1	0.051	A	NG	S	D	5	2+8m[1] October 1997, postal item containing narcotics intercepted in Melbourne. Narcotics removed and parcel delivered to D in Sydney. D charged with attempting to obtain possession. D was to merely receive narcotics and hold it for collection by other persons, criminal responsibility no greater than that of a “bare” courier. History of prior offences, including drug offences. [2] None specified.
Benais, Y [1999] NSWCCA 236	26.07.99	233B(1)(b) x 1	0.061	MDMA	G	S	D	6	3[1] D recruited in India. Flew from Holland to Sydney, 5.4.97, drugs concealed internally and in luggage. D to be paid $7,000 upon delivery in Sydney. Sentencing judge accepted D was a courier. [2] Early plea of guilty, prior good character, genuinely contrite, devoted to care and support of mother.
Bimahendali, E (1999) 109 A Crim R 355	15.12.99	233B(1)(d) x 1	0.080	MA	G	S	D	6	4[1] August 1997, D arranged for package of clothes to be despatched from Indonesia to Sydney to address of an acquaintance, narcotics concealed in package. D collected package from address, D described by sentencing judge as principal or prime mover in importation. [2] Plea of guilty, no prior convictions.
Schluenz, GR [2001] NSWCCA 314	01.08.01	233B(1)(c) x 1	0.083	MA	NG	S	D	7	5[1] September 1998, FedEx parcel from Philippines intercepted by customs, narcotics removed and parcel delivered by police. D received parcel upon delivery, parcel addressed to fictitious name. Sentencing judge assessed D’s position as “more than a courier but something less than being the person ultimately responsible for the dissemination of the drug”. [2] No prior convictions. D had teenage son in need of care and support.
Solomons, GJ [2000] NSWCCA 215	13.06.00	233B(1)(d) x 2 + S.25(1) DMT Act 1985	0.146	MDMA	G	S	D	8	5½[1] November 1997, 2 packaged addressed to D intercepted by AFP, narcotics removed and replaced with substitute material, total combined weight of pure MDMA calculated at 146 gm. Supply charge related to quantity of cannabis leaf found in D’s possession at time of arrest. Possession of a prohibited weapon charge also included on a schedule. $115,000 also found in possession of D. Sentencing judge found D was a principal engaged in the ultimate supply of MDMA to the public. [2] Plea of guilty.
Dinic, P (1997) 149 ALR 488	03.09.97	233B(1)(c) x 1	0.159	MDMA	G	S	D	5	3[1] November 1995, parcel containing narcotics delivered to address in Victoria. D made arrangements to take delivery of package from addressee. D testified he arranged for parcel to be sent to Australia, transferred $8,000 to consignor. Sentencing judge found D was a “middleman”, more culpable than a courier. [2] Plea of guilty, some assistance but of slight value.
Durant, EC [2002] NSWCCA 295	07.06.02	233B(1)(b) x 2	0.166 + 10.9 gm (cannabis resin)	MDMA	G	S	D	7	4+3m[1] UK national, arrived at Sydney airport on 25.12.00, narcotics concealed in shoes and internally. Sentencing judge found D was not a courier, but rather in the scale of culpability somewhat more than half way up, a person responsible for the organisation and performance of the importation. Sentenced to 18 months fixed term in respect of the cannabis resin count to be served concurrently. [2] Plea of guilty. Nothing else of note.
Capper, W [2000] NSWCCA 63	10.03.00	233B(1)(d) x 1	0.167	MDMA	G	S	D	5	3[1] 14.11.98, postal item containing narcotics intercepted, controlled delivery to D. Sentencing judge accepted D took delivery of package to retain in safe custody on behalf of S. D to be paid $2,500 upon delivery of package to principal. D had record of previous convictions for possession and cultivation of cannabis. [2] Early plea of guilty, sole parent of 2 dependant children, children declared wards of state pending D’s imprisonment. 20% discount allowed for limited assistance.
Robertson, H [2000] NSW CCA 266	14.07.00	233B(1)(d) x 1	0.167	MDMA	G	Crown	D	3-PD	1-PD[1] November 1998, D agreed with C to act as post box for receipt of narcotics from overseas in return for promise of $1,000. D took receipt of package, arrested in course of delivery to C. [2] Early plea of guilty before magistrate. Assisted AFP in arrest of C. Sentencing judge accepted D did not know what type of narcotics or the amount were to be despatched. Evidence of significant rehabilitation since conviction, 22 years of age. Offence motivated by lack of means and desire to assist sick fiance. Sentencing judge found there were exceptional circumstances justifying something less than full time custody, periodic detention order suspended after 12 months.
Salcedo, JM * [2004] NSWCCA 2004	02.12.04	233B(1)(b) x 1	0.169	MDMA	G	S	D	5+9m	3+9m[1] D and M travelled to Amsterdam initially for a holiday. Whilst there D and M decided to purchase and each to bring back to Australia MDMA tablets concealed in body packs. D paid for travel and tablets in relation to himself and M. D carried 3,000 tablets valued at $150,000 for commercial gain and personal use combined. D also charged with using a passport issued to another person. Sentencing judge satisfied D and M were principals in the offence. [2] Plea of guilty entered at early opportunity. Some co-operation with law enforcement agencies, D in protective custody since arrest, unlikely to re-offend, no prior convictions.
“PHA” * [2004] NSWCCA 445	07.12.04	233B(1)(b) x 1	0.169	MDMA	G	S	D	5+3m	3½[1] D and A travelled to Amsterdam initially for a holiday. Whilst there D and A decided to purchase and each to bring back to Australia MDMA tablets concealed in body packs. A paid for D’s travel and for purchase of the tablets both offenders were carrying. D carried approximately 3,000 tablets valued at $150,000 for commercial gain and personal use combined. D also charged with importing a quantity of anabolic steroids, sentenced to 3 months imprisonment, to be served concurrently. Sentencing judge satisfied D and A were principals in the offence. [2] Early plea of guilty, genuinely contrite, some assistance, but only of marginal value.
Pejovski, C [2001] NSWCCA 182	11.05.01	233B(1)(c) x 1	0.214	MDMA	NG	S	A	6	3½[1] December 1997, postal package from Belgium intercepted, narcotics concealed within. D took delivery of package and retained it for collection by others. Sentencing judge found D played an “important” role in the importation though not greater or lesser than the others. [2] Previous good character, highly regarded in community. No previous offences other than 2 relatively minor infringements.
Osborne, CG	06.11.97	233B(1)(b) x 1	0.240	MDMA	G	S	D	8	5½[1] 21.6.96, D arrived at Sydney airport on flight from UK, narcotics secreted on his body. Sentencing judge found D was more than a “bare” courier, though unable to better identify his precise role. [2] Plea of guilty but belatedly, prior good character.
Bourel, A	11.12.98	233B(1)(d) x 2	0.331	MDMA	NG	S	D	7	4½[1] Count 1 related to a quantity of ecstasy, count 2, to a homologue of ecstasy, total quantity equalling 331 gm. D supposed to meet courier and take delivery of narcotics. Described by sentencing judge as financier of importation. [2] No prior convictions.
Bushell, SJ	07.08.98	233B(1)(b) x 1	0.332	MDMA	NG	S	A	7	4[1] 17.11.96, D arrived at Sydney airport on flight from UK, narcotics concealed in false bottom of suitcase. Narcotics comprised quantity of pure MDMA plus analogue of MDMA, total 332 gm. [2] No previous convictions. Some assistance but of slight value, sentence reduced by 6 months.
Nai Poon, AN [2003] NSWCCA 42	05.03.03	233B(1)(b) x 1	0.339	MDMA	G	S	D	7	4[1] August 1999, D arrived at Sydney airport with 5,800 MDMA tablets concealed on his body. There was evidence that persons in Australia had been enquiring at a hotel about D’s whereabouts although D said in an interview that he intended to sell the tablets himself. [2] Early plea of guilty but in face of strong Crown case. Good prior work record, not a native English speaker, genuinely contrite
Van Den Akker, B [1999] NSWCCA 426	15.12.99	233B(1)(b) x 2	0.324 + 0.019 = 0.343	MDMA	G	S	D	7½	4½[1] D recruited in May 1998 to carry quantity of ecstasy from Sydney to Holland. D arrested at airport attempting to export narcotics. Sentencing judge found D more culpable than a courier, showed knowledge of syndicate’s monetary arrangements and knowledge of involvement of others. [2] Plea of guilty, no prior convictions, readily admitted guilt.
Guinan, SG [2001] NSWCCA 55	06.03.01	233B(1)(d) x 2 + s.31, FTR Act 1988 x 1	0.205 + 0.205 = 0.410	MDMA	NG	C&S	D	9	6[1] In January 2000 D received 2 postal items dispatched from UK addressed to a private mail box leased by him, 5,000 MDMA tablets in total concealed in packages. Prior to arrival of packages D transferred $54,000 to UK in separate structured transactions so as to avoid financial transactions reporting requirements. CCA accepted D’s role was not a minor one though insufficient evidence to find he was the principal entrepreneur in Australia. Sentences for structuring offence and importation of first package to be served concurrently with principal sentence for second package. [2] No previous convictions.
Schmakowski, R	28.09.01	233B(1)(b) x 1	0.410	MDMA	G	S	D	8	4+9m[1] May 1999, D recruited in Indonesia, flew to the Netherlands to pick up narcotics, then flew to Sydney. Wholesale value of narcotics, $240,000, D to be paid $5,000. D sentenced on the basis that he was a person guilty of importing, sentencing judge declined to accept D was simply a courier. [2] Plea of guilty at first opportunity. No prior convictions. Assisted police with a controlled delivery but no further arrests obtained. German national resident in Indonesia.
Spillane, MT	16.09.99	233B(1)(b) x 1	0.447	MDMA	G	S	A	6	3½[1] 21.06.98, D arrived at Sydney airport, flight from Singapore, narcotics concealed in luggage. Dealt by sentencing judge on basis D was a courier. Criminal record for dishonesty offences but no prior drug convictions. [2] Plea of guilty. D diagnosed a chronic alcoholic.
Meloh, A [2001] NSWCCA 211	21.05.01	233B(1)(d) x 1	0.471	MDMA	G	S	A	6	3+7m[1] March 2000, postal package intercepted in Holland, 5,300 MDMA tablets secreted within. D collected package from addressee. Sentencing judge found D was more culpable than a courier but only as a “low level operative” in the criminal organisation. [2] Early plea of guilty, genuine effort at rehabilitation, motivated by desire to help sister escape from Somalia. Appeal allowed to correct error in parole/head sentence ratio.
Budiman, H (1998) 102 A Crim R 411	08.09.98	233B(1)(d) x 1	0.592	MDMA	NG	S	D	8+3m	6+3m[1] Narcotics shipped by air cargo from Belgium, January 1997, concealed in loudspeakers. D flew from Indonesia, took delivery of shipment at Sydney hotel. Sentencing judge found that D’s role more than “mere conduit or messenger”, but rather akin to courier. D’s role described by CCA as “critical”. [2] No prior convictions, came from respected Indonesian family.
Hauser, Z	11.12.97	233B(1)(c) x 1 + s.24, Financial Transactions Reports Act 1988 x 3 –operate false name accounts	0.601	MDMA	G	S	A	4½	2½[1] Narcotics despatched by post in UK. Drugs collected by M, then left for D at hotel room. D described by sentencing judge as “junior partner”, more than courier. History of minor offences. Narcotics consisted of quantity of pure MDMA plus analogue, totalling 601 gm. [2] Plea of guilty, but late. Supplied information to police , but not resulting in further arrests. Sentence reduced to maintain parity with co-offender. Sentenced to 6 months imprisonment in respect of FTRA charges, to be served concurrently.
MacGregor, CA [2000] NSWCCA 552	08.12.00	233B(1)(c) x 1	0.657	MDMA	G	S	A	8	5[1] October 1999, V arrived at Sydney airport with 8,000 ecstasy tablets. V assisted police with a controlled delivery. D attended at V’s hotel, paid V $1,000 then departed with the narcotics. $67,000 found in D’s car when arrested. Sentencing judge described D as a “collector”, culpability equal to that of a courier. [2] Early plea of guilty. Otherwise of good character. Sentence reduced on appeal because of disparity with sentence imposed on V.
Bowers, SE (1997) 97 A Crim R 461	20.07.97	233B(1)(b) x 1	0.719	MDMA	G	S	D	8½	4½[1] 10.6.96, D, a courier, arrived at Sydney airport on flight from London, narcotics attached to body. Recruited in UK, to be paid approximately $10,000 upon delivery in Sydney. [2] Readily admitted guilt when detected by customs, early plea of guilty. No prior convictions.
English-Russell, MA [2002] NSWCCA 179	10.05.02	233B(1)(d) x 1 + DMT Act, s.25(2)	0.235~ + 0.500~ = 0.735~	MDMA	G	S	D	9	5[1] Between October 1999 and December 1999 D assisted R to collect four packages from post boxes in Sydney within which MDMA was secreted. The packages had been despatched from the UK at the behest of R. D recruited others to make the actual collection and then took custody of the packages on behalf of R. D was on bail during this period in respect of two charges of supply prohibited drugs to which she later pleaded guilty. The sentencing judge found D was not a co-principal alongside R, but nevertheless she played a significant and essential role. During the period charged D was also engaged in the repeated supply of not less than 500 gms of MDMA, separate from the imported tablets. The sentence for the importation count was in effect 7 years with 4 years non-parole, though reduced to take into account a period of pre-sentence custody. Two further counts of supply were taken into account by way of form 1. [2] Plea of guilty. Good prospects of rehabilitation, genuinely remorseful.
Camus, Y [1999] NSWCCA 425	15.12.99	233B(1)(c) x 1	0.736	MDMA	G	Crown	A	10	6[1] D flew from Bali in May 1998, recruited to find customers for quantity of narcotics imported sometime earlier. D travelled to Melbourne to collect the tablets, returned to Sydney, made arrangements to export some of the tablets to Holland. Described by CCA as middle-man in chain of command. [2] Plea of guilty, no prior convictions.
King Yoon Tan [2001] NSWCCA 219	28.05.01	233B(1)(b) x 1	0.736	MDMA	G	S	D	7	4½[1] May 1999, D arrived at Sydney Airport on flight from Malaysia, drugs concealed in body packs. Sentencing judge held D was a “bare” courier acting for reward, but on one occasion only. [2] Prior good character, early plea of guilty. Motivated by desire to assist sick mother, non-Australian national, will suffer additional hardship because of separation from family and friends.
Efendi, A [2001] NSWCCA 391	28.09.01	233B(1)(b) x 2	0.874+ 0.010= 0.884	MDMA MA	NG	S	D	10	6[1] August 1998, D arrived at Sydney airport on flight from Indonesia, quantity of MDMA and MA tablets concealed in exercise machine. Sentencing judge accepted D was acting as a courier, to be paid $3,000 upon delivery. Sentence of 5 years fixed term in respect of MA tablets to be served concurrently with sentence for count 1. No apparent contrition. [2] No prior convictions. Foreign national, will suffer added hardship of being separated from family and friends.
Simon, CM [2003] NSWCCA 147	23.06.03	233B(1)(b) x 1	0.921	MDMA	G	S	A	4½	2½[1] 11.4.01, D arrived at Sydney Airport on flight from Europe, ecstasy tablets concealed in body packs. D to be paid $5,000 upon delivery. [2] Early plea of guilty, no criminal history, genuinely remorseful, unlikely to offend again. Foreign national, CCA held that imprisonment would impose upon D peculiar hardship because of her skin disease.
Tyler, HS [2002] NSWCCA 272	07.06.02	233B(1)(b) x 1	0.947	MDMA	G	S	A	6	3+3m[1] 28.7.01, D arrived at Sydney airport on flight from Paris in possession of narcotics, street value approximately $695,000. Evidence indicated D was not one of the principals, but by same token not sufficient to support a finding she was anything less than the importer. Minor criminal record, conviction for larceny in 1990. [2] Early plea of guilty, genuinely sorry and good prospects of rehabilitation. Some “nominal” assistance to the authorities.
Power, BW [1999] NSWCCA 25	05.03.99	233B(1)(c) x 1	1.056	MDMA	G	S	D	9	5½[1] On 3.4.97, H arrived at Sydney airport with narcotics. D met H at a Sydney hotel, arranged to take delivery of tablets. Sentencing judge described D as more than a local courier or collection agent but rather “middleman in the enterprise”. [2] Plea of guilty, no prior convictions.
Guiu, CR [2002] NSWCCA 181	21.05.02	233B(1)(c) x 1	1.102	MDMA	NG	S	A	6	3+9m[1] April 2002, F arrived at Sydney airport with 10,000 MDMA tablets. She co-operated with the police in a controlled delivery of the narcotics. D later attended at F’s hotel room and collected the tablets. [2] No prior convictions. Spanish national, separation from family.
Slatinec, R [1999] NSWCCA 2	16.02.99	233B(1)(d) x 1 + s.25, DMT Act 1985 x 1-supply	1.214	MDMA	G	S	A	8	5[1] D’s involvement described as “not at lower end of importation”, showed considerable professionalism, had significant authority so far as distribution concerned: count 1, narcotics were in fact analogue of MDMA. August 1996, D arrested in possession of 680 gm of same substance (count 2), being part of imported shipment. [2] Plea of guilty, but belatedly. No previous convictions. Provided assistance in respect of unrelated murder occurring in prison, D placed in extreme protection. But for assistance sentence would have been 13 years, 9 non-parole.
Behar, I	14.10.98	233B(1)(b) x 1	1.231	MDMA	G	Crown	A	6	2½[1] On 14.11.97, D arrived at Sydney airport on flight from Fiji, narcotics concealed on body. D sentenced on basis he was a courier, to be paid $18,000 upon delivery. [2] No previous convictions, plea of guilty. Excellent character references, good prospects of rehabilitation. Sentence reduced by 50% for past and future co-operation with law enforcement agencies. In substituting new sentence CCA said it was constrained by double jeopardy factor.
Balogun, MJ [2004] NSWCCA 72	26.03.04	233B(1)(ca) x 1	1.323	MDMA	NG	C&S	D	8	5[1] 15.2.02 parcel containing approximately 18,000 MDMA tablets, street value $370,000-$1.3 million, despatched to Bondi Junction address, in due course package intercepted and controlled delivery carried out by AFP. D attended premises after delivery and took possession of parcel. Sentencing judge held D’s role akin to that of a courier. [2] Significant subjective features favourable to D, referred to by CCA but not specified.
Woolery, TLJ [2002] NSWCCA 299	18.07.02	233B(1)(b) x 1	1.570	MDMA	G	S	D	7½	4½[1] November 2000, D arrived at Sydney airport, narcotics strapped to his body. D was given airline ticket and drugs in Amsterdam and promised $US10,000 upon successful delivery in Sydney. [2] Early plea of guilty. Combined discount for plea and some assistance, 25%.
Niketic, A [2002] NSWCCA 425	02.10.02	233B(1)(b) x 1	1.195	MDMA	G	S	D	7½	4½[1] 10.7.01, D arrested at Sydney airport on flight from Bali, narcotics strapped to D’s body. Street value approximately $690,000. Sentencing judge stated it was impossible to determine what role D played beyond the fact of being the person who imported the drugs. [2] Plea of guilty, HIV positive. Some evidence of contrition. 15% discount for plea of guilty.
Schofield, V [2003] NSWCCA 3	06.02.03	233B(1)(c) x 1	2.097	MDMA	G	Crown	A	5	3[1] September 2001, wooden crate airfreighted from Indonesia to Sydney, narcotics concealed in crate. Crate delivered to “Car Clinic” premises in Sydney. Crate then loaded into motor vehicle and driven away by D. D engaged in counter surveillance driving and later the crate was found abandoned. Sentencing judge accepted D was not to receive any remuneration, performing the role of a driver and thus was at the lowest level of involvement for this type of offence. Prior criminal record including violent disorder, malicious wounding and possess thing with intent to deceive. D was on parole in respect of the malicious wounding at the time of the importation. Crate also contained 60 gms of methylamphetamine and 74 gms of pure amphetamine which were taken into account by way of a schedule of other offences. [2] Plea of guilty, some limited assistance of intelligence value only.
Bigic, B [2000] NSWCCA 9	11.02.00	233B(1)(d) x 1	2.255	M+MA	G	S	D	9	6[1] February 1998, P and H arrived at Sydney airport with 7,750 tablets containing combination of methorphan and methylamphetamine, usually sold as a substitute for ecstasy. D assisted in showing the couriers how to conceal the narcotics prior to their departure from the USA and in arranging for their travel to Sydney, also D travelled to Sydney to take part in delivery of narcotics. Sentencing judge held D’s culpability mid-way between that of the couriers and principal. Prior conviction but not drug related. [2] Plea of guilty but on first day of trial.
Marchando, TD [2003] NSWCCA 71	25.03.03	233B(1)(d) x 1	2.255	M+MA	G	S	D	10	7[1] February 1998, P and H arrived at Sydney airport with 7,750 tablets containing combination of methorphan and methylamphetamine, usually sold as a substitute for ecstasy. D had possession of the tablets in Los Angeles, supervised strapping of narcotics to the couriers, coached couriers on how to act, provided cash for airline tickets , travelled with couriers on flight to Sydney, provided security on flight, ready to assume control of drugs once couriers entered Australia. [2] Plea of guilty but value diminished by numerous later applications to withdraw plea. Previous conviction for importing steroids at Melbourne in 1995. Some assistance, but information of limited value.
Studenikin, A * [2004] NSWCCA 164	21.05.04	233B(1)(b) x 1	3.278	MDMA	G	S	A	10½	7[1] 5.6.02, D arrived at Sydney Airport on flight from Frankfurt, narcotics concealed in suitcase. Sentencing judge found that D was not the principal behind the importation, but by the same token, not simply a “mule” courier, that is a person without any real understanding or conception of the criminality of his actions. Previous conviction for fraud in Russia for which sentenced to 3 years imprisonment. [2] Early plea of guilty. Russian national, spoke little English. Some “limited” assistance but discount not quantified.
Soonius, F	29.05.98	233B(1)(b) x 1	3.340	MDMA	NG	C&S	A	9	5+3m[1] 15.7.96, D arrived at Sydney airport on flight from UK, narcotics concealed in side of suitcase. Sentencing judge held D was a courier for reward in a commercial transaction. [2] No previous convictions, prior good character. D suffering from depression at time of offence, judgement impaired. Some assistance to police, head sentence reduced by 2 years on account.
Rocco, A [2001] NSWCCA 124	06.03.01	233B(1)(d) x 1	4.027	MDMA	NG	C&S	D	13	9[1] October 1998, D and C travelled to Sydney from Holland. Some days later D and C took delivery of A shipment of water pumps consigned from France, MDMA concealed in pumps (70,000 tablets or 17.2 kgs bulk weight). D and C transported crates in hire car to storage unit at Hornsby which they had previously visited. D arranged for hire of motor vehicle. [2] No previous convictions.
Kevenaar, T * [2004] NSWCCA 210	28.06.04	233B(1)(c) x 1	5.987	MDMA	G	Crown	A	7	4½[1] On 8.9.02 D and Dedoes travelled from Holland to Sydney for the purpose of taking receipt of a package of MDMA. On 11.9.02 P also arrived in Sydney for the same purpose. On 17.9.02 a package from Holland containing narcotics was intercepted and a controlled delivery carried out. D signed for the package at his hotel. Later that day Dedoes and P met with D at his hotel. D’s role described by CCA as being less than that of many “couriers”. [2] Guilty plea but only indicated one week prior to trial. CCA allowed a combined discount of 40% for D’s plea and assistance.
Dedoes, M * [2004] NSWCCA 210	28.06.04	233B(1)(c) x 1	5.987	MDMA	G	Crown	A	7+9m	5[1] On 8.9.02 D and K travelled from Holland to Sydney for the purpose of taking receipt of a package of MDMA. On 11.9.02 P also arrived in Sydney for the same purpose. On 17.9.02 a package from Holland containing narcotics was intercepted and a controlled delivery carried out. K signed for the package at his hotel. Later that day D and P met with K at his hotel. D said he expected to be paid €3,000. D’s role described by CCA as being less than that of many “couriers”. [2] Guilty plea but only indicated one week prior to trial. CCA allowed a combined discount of 35% for D’s plea and assistance.
Jin Rong Pan * [2004] NSWCCA 210	28.06.04	233B(1)(c) x 1	5.987	MDMA	G	Crown	A	11	7[1] On 8.9.02 K and Dedoes travelled from Holland to Sydney for the purpose of taking receipt of a package of MDMA. On 11.9.02 D also arrived in Sydney for the same purpose. On 17.9.02 a package from Holland containing narcotics was intercepted and a controlled delivery carried out. K signed for the package at his hotel. Later that day D and Dedoes met with K at his hotel. D said he expected to be paid €5,000. D’s role said by CCA to be greater than K and Dedoes. [2] Guilty plea but only on first day of trial. CCA allowed a combined discount of 20% for D’s plea and assistance.
Chiap Nam Tan [2001] NSWCCA 438	24.10.01	233B(1)(ca) x 1	6.150	MDMA	G	S	D	15	9[1] August 2000, D travelled to Sydney from overseas. In October 2000 D met with Y at a Sydney hotel, a suitcase containing 46,000 tablets of MDMA placed in D’s car by an associate of Y. D’s role described by sentencing judge as that of a “middle man” responsible for organising the distribution of the narcotics in Australia. [2] Plea of guilty at earliest opportunity, 20% discount allowed. Foreign national, added hardship of being separated from family and friends.
Chi Wai Yeung [2002] NSWCCA 293	30.07.02	233B(1)(ca) x 1	6.150	MDMA	NG	C&S	D	9	5+4m[1] 6.10.00 D travelled from Malaysia to Sydney. Later D met with T and collected a suitcase from L containing 46,000 MDMA tablets. Sentencing judge found D’s role was equivalent to that of a courier involved in the delivery of drugs. [2] Foreign national. Prior good character, former police officer in Hong Kong.
De Groot Van Embden, E [2003] NSWCCA 156	16.06.03	233B(1)(c) x 1	16.5	MDMA	G	S	A	12	7[1] December 1999, D travelled from Holland to Sydney as representative and Australian organiser of a Dutch drug syndicate. In January 2000 D travelled to Melbourne to make arrangements for the delivery of a consignment of paper rolls within which approximately 50 kg of MDMA (bulk) was concealed. Consignment later collected from TNT terminal in Sydney by H on behalf of D. Sentencing judge held that D was authorised to engage assistance in Australia and to fix the market price of the drugs. For his role D to be paid $1 per tablet or $150,000-$200,000. [2] Plea of guilty though belatedly, no previous convictions, foreign national, in protective custody, 15% discount for plea, 50% for assistance.
“X” [2002] NSWCCA 40	26.02.02	233B(1)(cb) x 2	24.488 + 7.1 kgs of cocaine	MDMA	G	Crown	A	10	5[1] July 1999, X recruited by two co-conspirators to assist with the importation of a quantity of cocaine and MDMA. X recruited Y to assist with the concealment and transportation. X and Y travelled to Europe. X received instructions from the principals. Y arranged for the delivery of a number of modified hydraulic rams to a house in Europe. The narcotics were delivered to the house by the co-conspirators. X and Y packed the narcotics into the rams which were then shipped by others to Australia and delivered to Y’s factory in Brisbane. Y took receipt of the rams, loaded them onto a truck then drove to X’s warehouse in Sydney. X and Y commenced to open the rams to remove the narcotics. Neither X nor Y were involved in the initial acquisition of the drugs nor their proposed distribution. The sentencing judge accepted X was not a principal and that he played a limited albeit important role. In 1978 X was sentenced to 10 years non-parole for possession of 10 kgs heroin. [2] Early plea of guilty but strong Crown case. Sentence reduced by 58% on account of past and future co-operation with law enforcement agencies. Sentence to be served in protective custody. Head sentence increased on appeal.
“Y” [2002] NSWCCA 40	26.02.02	233B(1)(cb) x 2	24.488 + 7.1 kgs of cocaine	MDMA	G	Crown	A	7	3[1] July 1999, X recruited by two co-conspirators to assist with the importation of a quantity of cocaine and MDMA. X recruited Y to assist with the concealment and transportation. X and Y travelled to Europe. X received instructions from the principals. Y arranged for the delivery of a number of modified hydraulic rams to a house in Europe. The narcotics were delivered to the house by the co-conspirators. X and Y packed the narcotics into the rams which were then shipped by others to Australia and delivered to Y’s factory in Brisbane. Y took receipt of the rams, loaded them onto a truck then drove to X’s warehouse in Sydney. X and Y commenced to open the rams to remove the narcotics. Neither X nor Y were involved in the initial acquisition of the drugs nor their proposed distribution. The sentencing judge found Y’s role to be less than that of X, though he nevertheless made an active and important contribution to the importation. [2] Early plea of guilty but strong Crown case. Sentence reduced by 58% on account of past and future co-operation with law enforcement agencies. Sentence to be served in protective custody. No previous convictions. Head sentence increased on appeal.
Shepherd, MC [2003] NSWCCA 287	16.10.03	233B(1)(d) x 1	34.401	MDMA	G	S	A	11½	7+4m[1] October-November 2001, group in Sydney arranged for 480,000 MDMA tablets (123 kg bulk) concealed in a pre-fabricated cool room to be shipped from Belgium to Brisbane. D recruited for $25,000 to clear container through customs, take delivery at his warehouse on 23.11.01, then hand possession to B who trucked the goods to Sydney. D forged commercial invoice and other documents to ensure clearance through customs. His part described by sentencing judge as vital to importation, “a key figure”. [2] Plea of guilty. No relevant criminal history. Agreed to testify against co-offenders, degree of co-operation described as moderately valuable. CCA held that appropriate discount for plea and past and future assistance should be 45%.
El Hani A [2004] NSWCCA 162	21.05.04	233B(1)(d) x 1	34.401	MDMA	G	S	D	15	10[1] On 23.11.01 shipping container from Belgium delivered to warehouse in Brisbane, approximately 480,000 MDMA tablets (123 kg bulk) concealed in prefabricated cool room parts. Cool room transported to Sydney at behest of JS, substitution of narcotics discovered shortly thereafter. D travelled to Sydney on 3.12.01 to assist JS in locating the missing tablets. Sentencing judge described D as a senior person in the organisation who played an important managerial role when the drugs had been substituted. [2] Combined 25% discount allowed for plea of guilty and past assistance. Foreign national, also welfare of wife and daughter placed in jeopardy from family of JS by reason of D’s assistance.
Prasad, SS [2004] NSWCCA 293	01.09.04	233B(1)(d) x 1	34.401	MDMA	NG	Crown	D	14	8+ 8m[1] October-November 2001, JS and others arranged for 480,000 MDMA tablets (123 kg bulk) concealed in a pre-fabricated cool room to be shipped from Belgium to a warehouse of S in Brisbane. D, who had been recruited by C, another member of the group to assist with customs clearance of the container for a fee of $50,000 (plus debt of $100,000 to be forgiven), in turn recruited S to arrange for customs clearance and to take delivery of the shipment. During period prior to delivery of container on 23.11.01 D received documents, money and instructions from C which he passed on to S. D’s role, which was to compartmentalise the involvement of JS, C and others, was described by the CCA as an active and important one in relation to the importation. Having regard to quantity of narcotics and D’s role, CCA held that sentence was unduly lenient and fell outside the legitimate range, but declined to intervene for discretionary reasons. [2] D unlikely to offend again, also in serious financial difficulties and somewhat depressed at time of offence.
Sukkar, S [2005] NSWCCA 54	16.03.05	233B(1)(d) x 1	34.401	MDMA	NG	C&S Crown	D	14	9[1] October-November 2001, JS, D’s elder brother, and others arranged for 480,000 MDMA tablets (123 kg bulk) concealed in a pre-fabricated cool room to be shipped from Belgium to a warehouse in Brisbane. Parts of the cool room containing substitute tablets and a controlled delivery sample were carried by truck to Sydney to premises owned by D but occupied by LS, another brother of D. D assisted with the unloading of the truck, permitted the narcotics to remain at his property, assisted his brothers in making efforts to recover the real tablets and assisted in breaking open the cool room parts and sorting the substitute tablets. CCA described his role as that of a knowing assistant to his brothers, deeply involved in the venture, knew importation was one of considerable substance which involved very large sums of money, objective criminality very high. [2] No previous convictions, prior good character, formerly hard working and successful solicitor.
Neale, JL [2004] NSWCCA 311	10.09.04	233B(1)(d) x 1	52.33	MDMA	NG	C&S	A	Life	15[1] August 2000, D travelled to France, personally concealed 271,000 MDMA tablets in shipment of wine which he consigned to himself in Sydney, wholesale value $2.7-$5.4 million. D arranged for clearance and delivery of consignment to self-storage facility. Sentencing judge found D to be a principal in the importation, responsible for detailed planning and execution of offence. Prior convictions for dishonesty. [2] Non-parole period reduced by CCA on account of D’s age.
‘W’ [2002] NSWCCA 192	24.05.02	233B(1)(d) x 1	66.332	MA	G	S	A	7	4+7m[1] November 2000, 2 shipping containers from Singapore delivered to a warehouse in Sydney, narcotics concealed within metal struts, street value, $24 million. D travelled from Hong Kong, cut open containers, re-packaged the narcotics and commenced delivery to others prior to his arrest. Sentencing judge found D was “intimately” involved in the criminal undertaking. [2] No previous convictions. Early plea of guilty. Sentence reduced by 50% on account of past and future assistance.

NOTES:

233B(1)(b) = import prohibited imports

233B(1)(c) = possession or attempt to obtain possession of prohibited imports

233B(1)(ca) = possession or attempt to obtain possession of prohibited imports reasonably suspected of being imported

233B(1)(cb) = conspire to import prohibited imports

233B(1)(d) = knowingly concerned in importation of prohibited imports

Trafficable Commercial

A = amphetamine 2.0 gms

M = methorphan 2.0 gms

MA = methylamphetamine 2.0 gms

MDA = 3,4-methylenedioxyamphetamine 0.5 gms

MDMA = 3,4-methylenedioxymethamphetamine 0.5 gms 500 gms

NG = not guilty

G = guilty

S = sentence appeal

C&S = conviction and sentence appeal

Crown = crown appeal

A = appeal allowed

D = appeal dismissed + in last column D also signifies convicted person

Section 233B(1)(d) of the Customs Act 1901(knowingly concerned) and related provisions were repealed as from 15.12.01 and relaced with s.11.2 of the Criminal Code 1995 (aid, abet, counsel and procure).

Section 16G of the Crimes Act 1914 (reduction of sentence where no remissions) has been repealed: see the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and other Measures Act) 2002, item 1, schedule 3. The repeal applies to all sentences imposed on or after 16.1.03, irrespective of when the offence was committed or proceedings commenced.

An asterisk after the name of the defendant in the first column signifies that the person was sentenced after the repeal of s.16G and therefore the sentence was not reduced on account of the absence of remissions in New South Wales.

CITATION:	R v C.A.S. [2005] NSWCCA 192
HEARING DATE(S):	18/05/2005
JUDGMENT DATE:	18 May 2005
JUDGMENT OF:	Simpson J at 27; Buddin J at 1; Hall J at 28
DECISION:	Leave to appeal refused.

CATCHWORDS:	Sentence - offence of aid and abet importation of commercial quantity of MDMA - limited role - very large quantity of drugs - assistance to authorities - parity.
LEGISLATION CITED:	Crimes Act (Cth)
CASES CITED:	Postiglione v The Queen (1996-7) 189 CLR 295 R v Budiman (1998) 102 A Crim R 411 R v Gallagher (1991) 23 NSWLR 220 R v Olbrich (1999) 199 CLR 270 Wong and Leung v The Queen (2001) 207 CLR 584
PARTIES:	Regina C.A.S.
FILE NUMBER(S):	CCA 2005/274
COUNSEL:	MJ King (Cth Crown) RJ Button (Applicant)
SOLICITORS:	Commonwealth Director of Public Prosecutions Ford Gaitanis (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0851
LOWER COURT JUDICIAL OFFICER:	Solomon DCJ