R v Keys

[2001] NSWCCA 232

CITATION:	R v Keys [2001] NSWCCA 232
FILE NUMBER(S):	CCA 60031/00
HEARING DATE(S):	12/06/01
JUDGMENT DATE:	28 June 2001
PARTIES :	Nathan Arthur Keys The Crown
JUDGMENT OF:	Smart AJ at 1; Badgery-Parker AJ at 2; Newman AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0402
LOWER COURT JUDICIAL OFFICER :	Coorey J

COUNSEL :	RF Sutherland - Crown PM Stickland - Applicant
SOLICITORS:	SE O'Connor - Crown DJ Humphreys - Applicant
CATCHWORDS:	Crown appeal - knowingly concerned in drug importations - need to identify precisely what offender did - whether guideline judgment applicable - general deterrence outweighs subjective matters - inadequate sentence - discussion of discretion to refuse appeal - resentencing - avoidance of double punishment - ratio between non-parole period and total sentence
LEGISLATION CITED:	Customs Act 1901
CASES CITED:	Pearce v The Queen (1998) 194 CLIP 610 R v Wong and Leung (1999) 108 A Crim R 531 R v Olbrich (1999) 108 A Crim R 464 R v Camilleri, (CCA unreported, 8 February 1990) Regina v Baker NSWCCA 85 (28 March 2000) Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 227 R v Wilson (1981) 28 SASR 362 R v Tait (1979) 24 ALR 473 Regina v Holder (1983) 3 NSWLR 245 R v Bang (NSWCCA unreported, 1 September 1992) Regina v Todd (1982) 2 NSWLR 517 Regina v Kukunoski (NSWCCA unreported, 17 August 1989) Regina v Blanco (1999) 106 A Crim R 303 Pearce v The Queen (1998) 194 CLR 610 Regina v Thompson & Houlton (2000) 49 NSWLR 383
DECISION:	Crown appeal allowed. The sentences imposed in the District quashed.

SMART AJ
BADGERY-PARKER AJ
NEWMAN AJ

28 June 2001

REGINA v Nathan Arthur KEYS (60031/00)

JUDGMENT

1 SMART AJ: The Court orders that pending the conclusion of the trial of Bassam Hamzy before Bell J in this Court on charges of murder and conspiracy to murder:

(a) in any reference to or report of the present case no material is to be published which refers to or identifies or could tend to identify Bassam Hamzy.
(b) the reasons for judgment herein not be placed on the Internet or be disseminated in other than hard copy form.

As to the appeal I agree with Badgery-Parker AJ.

2 BADGERY-PARKER AJ: The respondent pleaded guilty in the Local Court to each of two charges of being knowingly concerned in the importation of more than the trafficable quantity of cocaine, contrary to the provisions of s233B(I)(d) of the Customs Act 1901. He was committed to the District Court for sentence and in that court he adhered to his pleas of guilty. He was sentenced by Judge Coorey on 1 December 2000 to imprisonment for a term of eight years with a non parole period of three years and six months.

3 Although clearly the judge was aware that there were two counts, when he came to impose sentence he did not expressly advert to that and purported to impose a single sentence of imprisonment, whereas, quite clearly, he should have sentenced the offender separately on each of the two counts. The oversight was drawn to the attention of the parties when this matter first came before this court on 2 May 2001 and on the following day in the District Court Judge Coorey corrected his error. He imposed in respect of each count the same sentence which he had purported to impose originally, that is to say, "a term of eight years to date from 5 March 1999 and to expire on 4 March 2007. I fix a non­parole period of three years and six months to back date from 5 March 1999 and to expire on 4 September 2002. I direct that the sentences be served concurrently". The imposition of two concurrent sentences of equal length may involve a degree of "double counting", the error to which the High Court directed attention in Pearce v The Queen (1998) 194 CLIP 610. I shall return to that question later.

4 The Crown appeals against the sentences as being manifestly inadequate and asserts certain particular errors as having contributed to the ultimate inadequacy.

5 Each count related to a separate importation of cocaine into Australia effected by different couriers using different ports of entry. On 29 December 1998 Hussain Danine (known as Sam) was arrested at Sydney Airport following his arrival on a flight from Los Angeles. He was wearing footwear described as "boat shoes" in which 1.067 kilograms of powder was concealed, which upon analysis was found to contain 772.6 grams of pure cocaine. On 20 January 1999 at Brisbane International Airport, Richard Layoun was apprehended. He was wearing similar shoes in which were concealed 1.01 kilograms of powder found on analysis to contain 713.6 grams of cocaine. In each case, the approximate value of the drug imported was about $500.

6 The evidence showed that the principal organiser of these importations was a man named Bassam Hamzy who was at the relevant times located either in Belize or The United States of America. The evidence which implicated the respondent in the importation consisted particularly of telephone intercepts from which it is clear that he played a major role in carrying out Hamzy's plan. At Hamzy's direction, the respondent liaised with the two couriers, instructed each in his role, purchased and provided the shoes in which the cocaine was to be concealed, researched the possible routes by which the couriers might travel from Australia to Belize and back, and purchased their plane tickets. Before undertaking all of those activities, the respondent himself made a return trip to Belize, evidently to meet and confer with Hamzy.

7 The judge appears to have accepted part of a submission put by the Crown in the course of the sentencing proceedings, that it may be difficult to define precisely the role of the respondent, but that the level of his criminal involvement exceeded that of the two couriers while not reaching the level of that of Hamzy. However, the judge did not make an express fording as to what was the role of the offender, beyond a brief reference to the telephone intercept on which, his Honour said, the Crown relied "to establish that Hamzy, who directed the prisoner Keys into carrying out the crime, had referred to the buying of the shoes and travelling to Miami to pay for a co-offender's ticket". His Honour made no reference to the second part of the Crown's submission on this issue: "Keys' role is probably best described as Hamzy's trusted assistant or aide as Hamzy certainly needed Keys in order to organise things from the Australian end".

8 It is apparent from the transcript of the sentencing proceeding that, appropriately, a great deal of attention was paid to the guideline judgment of this court in R v Wong and Leung (1999) 108 A Crim R 531. In that judgment, the court laid down a "non-binding guideline for offences under s 233B of the Customs Act " which, the Chief Justice said "is intended to apply to couriers and persons low in the hierarchy of the importing organisation". The Chief Justice said that "the range is not intended to apply to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation, to whom an increment should be applied".

9 Unfortunately, it appears to me that as the course of argument focused on the position of the respondent in the organisational hierarchy, the judge was distracted from his real task which, as the High Court pointed out R v Olbrich (1999) 108 A Crim R 464 was not simply to classify the offender as falling into some predetermined category such as "principal", "courier", or "mere courier", but was to determine what in fact the offender did. Such a determination is an essential part in making an assessment of the objective gravity of the offence which is in turn an essential part of the sentencing process. In R v Camilleri, (CCA unreported, 8 February 1990) Allen J (with whom Gleeson CJ and Finlay J agreed) said:

"In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community.
It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society. Unless those basic principles of sentencing are adhered to, errors will occur".

10 It was submitted on behalf of the respondent that "the respondent was not high in the hierarchy of the organisation responsible for the importation. The only people below the respondent in the organisation were the couriers". Again, as it seems to me, that submission obscures the real issue which is - what did the respondent do. It is not to the point that the only people below him in the organisation were the couriers. The respondent's role was crucial to the success of the importation and it is apparent that he undertook the management of the importation at the Australian end. In the District Court it was submitted on behalf of the respondent that Hamzy may not have been at the top of the hierarchy, but that submission was not supported by any evidence (see R v Olbrich supra at 469-471). So far as the evidence shows, there were but three levels in this hierarchy with Hamzy at the top, the couriers Danine and Leung at the bottom and the respondent in between; but it would be simplistic to proceed on the basis the that three rungs were equally separated. It is in my view clear that as the importation scheme was organised, the respondent stood very much closer to Hamzy than he did to the couriers. He is not one of those in respect of whom the guideline judgment was promulgated but is one whose criminality must attract an increment above the sentence levels propounded in the guideline judgment.

11 However, it is not to be overlooked that the guideline judgment promulgates in respect of the "mid level trafficable quantity (200 grams to 1 kilogram)", a range of sentences, from six years to nine years. That, of course, appropriately allows the sentencing court to move to the higher or lower end of that range according to the circumstances of the particular case including subjective considerations, before determining the appropriate increment. It is to be observed also that the court in the guideline judgment acknowledged that in some cases a plea of guilty might justify a sentence below the range, as would the provision of a substantial degree of assistance to the authorities. The latter factor is not present m this case. A significant feature of this case is, of course, that there are two offences to be considered. Another is the prime importance, in the sentencing of serious drug offenders, of general deterrence.

12 The respondent did plead guilty at the earliest possible opportunity and the judge was entitled to find, as he did, that the respondent was genuinely remorseful. The Crown submission criticised the extent to which the judge accepted unsubstantiated assertions of favourable subjective features in circumstances where character witnesses appeared to be unaware of many aspects of the respondent's lifestyle, including his association with Hamzy and where the respondent elected not to verify on oath some of the subjective matters on which he relied. Certainly the judge would have been entitled to decline to act on those matters in those circumstances, but he was not obliged to require formal proof; it does not appear that the Crown challenged the subjective materials nor submitted that the judge should not act upon them without further proof. The judge was entitled, as he did, to give great weight to the evidence of remorse, the respondent's recently gained insight into the enormity of his behaviour, and his prospect of rehabilitation. He was also entitled, indeed bound, to give great weight to the prisoner's age, for in sentencing a young man of only nineteen or twenty, the prospects of rehabilitation loom very large in the sentencing discretion and may even, in some circumstances, outweigh the need for general deterrence.

13 However while his Honour was entitled to give great weight to subjective matters, it does not appear that he gave any express consideration to the interplay between, on the one hand, the respondent's undoubted prospect of rehabilitation and his youth, and on the other hand, the importance, particularly in drug importation matters, of the imposition of significant deterrent sentences. Indeed, he makes no clear reference to general deterrence at all.

14 I am firmly of the view that the judge has erred in undervaluing the level of the respondent's criminality, in giving insufficient attention to the question of general deterrence and, ultimately, in arriving at a sentence which was manifestly inadequate.

15 It does not follow, as a matter of course, that the Crown appeal should be allowed and this court should proceed to re-sentence the respondent.

16 Notwithstanding that upon a Crown appeal the court considers that the sentence is manifestly inadequate, it has a discretion whether to intervene to correct the sentence. The courts have taken the view that where all that can be said of the sentence below is that it is manifestly inadequate, no particular error of principle being identifiable, a successful Crown appeal should be rare; see most recently Regina v Baker NSWCCA 85 (28 March 2000) per Spigelman CJ. That reflects a long held view which is summarised in the majority judgment in Everett v The Queen (1994) 181 CLR 295 at 299:

"Section 401 (2) (c) of the Tasmanian Criminal Code confers upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognise that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time­honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a `court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney–General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified'. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 227:
`an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'.

The reference to `matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting `error in point of principle'. "

17 The concluding paragraph in that passage is clearly intended to admit the possibility of a successful Crown appeal merely on the ground of manifest inadequacy in the absence of an identifiable error; and such was the view also of McHugh J who said at page 306

"The approach of a court to a jurisdiction that specifically authorises a Crown appeal against sentence must necessarily be different from the approach that this Court takes on an application for special leave to appeal against an order setting aside a conviction. The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that the court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are victims of the crimes in question but also in the general public inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.
If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.

18 Against the background of a general reluctance by the courts to interfere in sentencing at the request of the Crown, various particular matters have been invoked from time to time as justifying a refusal by this court to intervene notwithstanding the inadequacy of the sentence imposed below. One such case is where it appears that, before the sentencing judge, the Crown concurred in or failed to object to a proposed course of action - "As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did" (per McHugh J, Everett supra at 307). See also R v Wilson (1981) 28 SASR 362 at 367-368; R v Tait (1979) 24 ALR 473 at 476477.

19 It is clear from the written submissions provided by the Crown in the District Court and from the transcript of the oral argument that the Crown emphasised to the sentencing judge that a substantial sentence was required by reason of the need for general deterrence of cases of this kind and because of the respondent's significant role in the enterprise. I have referred already to part of the written submission which the judge appears to have passed over. In oral argument on 2 February 2000 the Crown's representative said "the Crown's case is that the prisoner is the organiser of the two other couriers, not the principal but someone less than a principal and higher than a courier". And later the same day "it is the Crown's position that Mr Keys organised, made arrangements for Mr Danine to travel and import cocaine into Australia". His Honour replied: Mr Danine was described in the remarks [by Judge Holt on his sentence] as a mere courier and nothing else. In the case of Mr Keys, his role is different in that he is an organiser but not the principal organiser. "The Crown said: that's right". On 1 December 2000 the Crown was represented by Mr Farmer of Counsel who said "it's a question of degree, I suppose, but certainly it's always difficult to put labels on them as to what position they do hold, but obviously he is an important link in Australia, as far as Mr Hamzy is concerned, and his involvement in terms of liaising with Mr Hamzy and organising couriers and arranging for cash to go to and from America was an essential part of the whole enterprise. Definitely more than a courier. So the increment referred to in Wong and Leung must be applied in this case.”

20 During discussion on that day his Honour seemed to indicate a view that the appropriate head sentence was 8 years, and discussion thereafter centred on the appropriate ratio between such a head sentence and the non parole period. It cannot I think be extracted from the transcript that the Crown concurred in the imposition of a sentence of only 8 years.

21 In the course of that discussion, counsel for the Crown did say, according to the transcript, that a non parole period of less than 3 years 9 months would be below the range, but that was clearly a slip of the tongue and he reiterated the submission that "your Honour should apply the normal non parole period of 66.66 per cent...". Evidently attempting to do the mathematics in his head, he then suggested against an eight year sentence, that that ratio would yield a non parole period of "four years plus", and concurred with his Honour's comment in response, "On that analysis four years plus look to be the bottom of the range". It remained for his Honour to decide, and certainly the Crown in no way assented to the non parole period eventually fixed, 3 years 6 months.

22 In my view there is nothing in the conduct of the prosecution on behalf of the Crown before the District Court judge which should lead this Court to exercise the discretion to reject the Crown appeal notwithstanding the manifest inadequacy of sentence.

23 Because of the element of double jeopardy in a Crown appeal, referred to above in the citation from Everett, it is common practice where a Crown appeal against the inadequacy of sentence is allowed, that the Court of Criminal Appeal expressly imposes a sentence less than that which it regards as the appropriate sentence to have been imposed at first instance. See Regina v Holder (1983) 3 NSWLR 245; R v Bang (NSWCCA unreported, 1 September 1992). That consideration may also warrant the discretionary rejection of the Crown appeal where the Court concludes that any sentence which it would properly impose in re­sentencing following the success of the Crown appeal would produce a sentence not substantially greater than that in fact imposed below.

24 Another factor which may lead to or contribute to a decision to reject the Crown appeal as a matter of discretion is any delay which has occurred in the institution or prosecution of the appeal. Those factors are particularly relevant where, in consequence of the delay, the respondent has served the whole of the custodial portion of the sentence imposed at first instance so that upholding of the Crown appeal would lead to his return to custody; but even in the latter circumstance, delay will not necessarily lead to rejection of the Crown appeal.

25 In this case there was no unreasonable delay in the institution of the appeal. Sentence was imposed on 1 December 2000 and the nonce of appeal was filed on 11 January 2001; but on 3 December 2000, the Commonwealth Director of Public Prosecutions had written to the respondents solicitors advising that an appeal was being considered. The prosecution of the appeal in this Court has not been marked by any delay for which the Crown might be criticised. Indeed on 5 March 2001, the Crown sought expedition of the hearing of the appeal and it was fixed for hearing on 2 May 2001. It did not proceed on that day but the reason for that was concern about the jurisdiction of this Court, arising from the error made by the Judge in expressing a sentence in respect of one charge only and without specifying which charge. That led to the Crown making an application for the appeal to stand over, which was opposed by Counsel for the respondent but which seemed to be the inevitable outcome of the technical difficulty which arose from the form of the sentence.

26 Of more significance is the very long period of pre-sentence custody. The respondent was taken into custody on 5 March 1999; on 6 July 1999 he entered pleas of guilty in the Local Court and was committed for sentence to the District Court for mention on 16 July. On that date the matter was fixed for sentencing proceedings on 1 November 1999. On the application of the respondent and by consent, that date was vacated in order that the sentencing judge should have the advantage of the imminent guideline judgment in R v Wong & Leung, which in fact was not published until 16 December 1999. There were lengthy delays throughout the year 2000: on one occasion because the respondent's counsel was not ready to proceed; on another occasion because of a view that the man Hamzy should be dealt with at the same time (which was obviously appropriate) and subsequently because Hamzy's counsel was not ready to proceed. On another occasion it was adjourned because the Judge was unavailable because of a circuit commitment. The consequence was that by the time he came to be sentenced on 1 December 2000 the applicant had served almost 21 months, and by the time this appeal was heard, 27 months of his sentence. Throughout that period he was, as his counsel put it, in a state of uncertainty as to how the appeal might be decided. He was a victim of delay which was not in any way his fault personally. Those circumstances were particularly onerous for a 19 year old man serving his first sentence of imprisonment. Furthermore, the first 21 months of that period (prior to sentence) was spent in the remand section of a prison, which counsel submitted and I would accept, is a more onerous faun of detention because the prisoner is unable to secure the benefit of classification and is excluded from some of the ordinary activities available to those undergoing a sentence of imprisonment.

27 Sentencing for a "stale" crime has always been recognised as calling for special consideration. The relevant principles were stated by Street CJ in Regina v Todd (1982) 2 NSWLR 517 at 519 -

"Where there has been a lengthy postponement, whether due to an inter-state sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of the earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime long after the committing of the offence calls for a considerable measure of understanding and flexibility of approach m passage of time between the offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner ".

See also Regina v Kukunoski (NSWCCA unreported, 17 August 1989); Regina v Blanco (1999) 106 A Crim R 303.

28 The delay in this case is substantial, at least in the sense that for most of it the respondent was in prison. It is I think correct to say that no blame can be laid at his door; the fact that some of the delay was due to the stance adopted on his behalf by his legal advisers does not alter that position. I should add, there is no suggestion whatsoever that they did not act bona fide in seeking such adjournments as they did from time to time. What is particularly relevant, when the prisoner himself is not responsible, is the mere fact of the delay, no matter how and why it occurred. He is entitled, should this Court proceed to re-sentencing, to have that delay taken into account in mitigation of sentence.

29 So too, should this court come to re-sentence, due weight must be given to the aspect of double jeopardy.

30 Giving full weight to the subjective circumstances which were accepted by the sentencing judge, the aspect of double jeopardy and the significant delay, and recognising that the sentence which this Court would impose on a re-sentencing would be significantly less than that which, in the view of this court, should have been imposed in the District Court, I am nevertheless of the opinion that the sentence which this court should impose if the appeal be upheld is a sentence significantly in excess of that which was imposed in the District Court.

31 Accordingly I conclude that there is no reason why, in the exercise of discretion, this Court should not uphold the Crown appeal. I propose that the Crown appeal be allowed and that this Court proceed to re­sentence.

32 At the outset I referred to the problem created by the judge's correction of his initial error by imposing two concurrent sentences of equal length. In Pearce v The Queen (1998) 194 CLR 610, the accused had been charged with an offence under s33 of the Crimes Act (malicious wounding with intent to do grievous bodily harm) and an offence under s110 (breaking and entering a dwelling house and while therein inflicting grievous bodily harm). Both charges arose out of the same incident. The infliction of bodily harm which was an element in one was the same infliction of bodily harm as constituted the second offence. In those circumstances the High Court held that there was an error in sentencing. The principle is summarised in the head note -

"that to the extent to which two offences of which the person is convicted contain common 'elements it would be wrong to punish the offender twice for the commission of elements that are common".

33 In the present case, the respondent pleaded guilty to two charges of being knowingly concerned in the importation of cocaine into this country. As noted previously, each count related to a separate importation effected by two different couriers using two different ports of entry. To that extent, the importations were quite separate and distinct. However, the activities of the respondent which constituted his being knowingly concerned in the first importation were in very large part the same activities as constituted his knowing concern in the second importation. Obviously there were acts done by him to procure or facilitate the respective importations which were specific to the particular importation. To impose identical sentences in respect of each involved (or, just as important, might be perceived as involving) twice punishing the offender for the same criminal conduct.

34 Because this court will re-sentence the respondent , we are in a position to ensure that that error is not repeated; the fact that the sentencing judge made (and was, with respect, induced or permitted by the legal representatives of either side to make) an error in this regard becomes irrelevant if this court upholds the Crown appeal and proceeds to re- sentence. Nevertheless, it has been, I think, worthwhile to emphasise that there was an error in that regard, in order to alert sentencing judges and members of the profession generally to that possibility of error. Of course, the repetition of a similar offence often indicates an increasing criminality.

35 This court should re-sentence on the basis that although the respondent was not the principal in the organisation which planned and carried out the importation of cocaine into Australia on these two occasions, he functioned at a very high level in that organisation, being its effective manager at the Australian end. His criminality is not far short of the principal who, so far as the evidence discloses, was Bassam Hamzy, and far above the criminality of the two "mere couriers", Danine and Layoun. Each importation, had it not been frustrated by the Federal police, would have released onto the Australian market in excess of 700 grams of pure cocaine. Each importation represented a most serious breach of the law, and the respondent's knowing concern in each importation was objectively a crime of great gravity.

36 Against that assessment of the objective seriousness of the offence, this court must take account of the plea of guilty, the respondent's relative youth, and his excellent prospect of rehabilitation as expressly found by the District court judge, together with the delay between his arrest and this imposition of sentence, and his custodial circumstances during that period. We must give effect to the double jeopardy involved in every Crown appeal by determining sentences for the two offences which in aggregate are less severe than would have been appropriately imposed in the District Court.

37 We must have regard to the fact that there are two offences to be punished; that he is not to be punished twice for such of his activities as form part of each offence; and that the total of the two sentences should not exceed what is appropriate to the totality of the criminality involved in the two crimes.

38 The sentencing regime under which we are to proceed is that laid down in Part 1 B of the Crimes Act 1914 (Commonwealth). We must have regard to each of the matters set out in section 16 A of that Act; to the fact that the sentence must be served in this state where state sentences are not subject to remission or reduction (section 16 G); it is open to us to impose concurrent sentences or cumulative sentences or sentences partly cumulative and partly concurrent so long as the order which we make complies with sl9(2) and (3); and we must fix a single non-parole period in respect of the two sentences which we are to impose (section 19 AB).

39 One of the matters to be taken into account pursuant to section 16 A is the fact that the respondent pleaded guilty to the charge. The Commonwealth Act does not make express provision as to how or to what extent the fact of a plea of guilty is to be taken into account in sentencing. It is appropriate that in sentencing under the Commonwealth Act following a plea of guilty, the Courts of this State should have regard to the guideline judgment in Regina v Thompson & Houlton (2000) 49 NSWLR 383.

40 This Court should have regard also to the guideline judgment in relation to drug importation under s233B of the Customs Act: R v Wong & Leung (supra). On the findings which I have made, the guidelines are not directly relevant but a convenient starting point is the guideline pronounced in respect of importations of "a mid level trafficable quantity, 200g to lkg", in respect of which the guideline sentence is expressed as a range, 6 to 9 years. If that is to be used a starting point, then the circumstances of this case require the application of a significant increment. In my view the total criminality in relation to the two offences, making every allowance for the subjective factors and special considerations applicable to this as a sentencing after a Crown appeal, requires the imposition of an aggregate sentence of 11 years imprisonment. That aggregate should be achieved by the imposition in respect of the first count of a sentence of imprisonment for 7 years and respect of the second count a sentence of imprisonment for 5 years, with a direction that the sentence in respect of the second court be served in part concurrently with that imposed in relation to the first count.

41 It was common ground between the parties that in the ordinary case where sentence is to be imposed in respect of substantial quantities of a prohibited drug, the non parole period should ordinarily be fixed within the range 60 to 66.6% of the head sentence. However, there is no inflexible rule to that effect, and a non parole period significantly less than that range may be appropriate in certain cases. In general, the longer the aggregate head sentence, the more readily may the Court proceed to fix a non parole period below 60% and even below 50% where that appears to be appropriate. It may well be appropriate in a case such as this where the offender is very young; where he has served a substantial period prior to sentence in more onerous conditions than those involved in ordinary prison discipline; and where there is an express finding that his prospects of rehabilitation are good. I am of the opinion that in this case it is appropriate to fix a non parole period which is less than 50% of the aggregate sentence. Against the total sentence of 11 years, the Court should fix a non parole period of 5 years.

42 The court was informed that the principal offender Bassam Hamzy was charged with offences under s233B(l) of the Customs Act 1901, but not the precise terms of the charges. The court was informed that Hamzy was sentenced to concurrent terms of imprisonment each for nine years from 29 December 1999, with a non-parole period of five and a half years. At the same time he was sentenced to various fixed terms for certain offences under state drug legislation. The court was not made aware of the details of those charges nor of Hamzy's criminal antecedents if any. Notwithstanding that no submission was directed to the point, it appears to me that in re-sentencing the respondent this court should note the sentence imposed upon Hamzy and consider whether there is some question of parity which should influence the sentence now to be imposed. In the absence of more precise information it would be difficult to give effect to any parity consideration, but in any event, for much the same reasons as have led me to conclude that the sentence imposed upon the respondent was manifestly inadequate, so too it appears to me that the sentence imposed upon Hamzy must also be regarded as, on the face of it, inadequate. So far as I am aware there has been no Crown appeal in respect of the sentences imposed upon Hamzy. There may be good reasons for that - particularly the fact, of which the members of this court are aware, that Hamzy is currently on trial in the Supreme Court upon an indictment containing one count of murder and one count of conspiracy to murder. I am of the opinion that in the circumstances this court should not moderate the sentence to be imposed upon the respondent by reference to that which was imposed in the District Court upon Hamzy.

43 The orders which I propose are these

1. Crown appeal allowed.

2. The sentences imposed in the District Court quashed.

3. In lieu thereof the respondent re-sentenced as follows.

(a) In respect of the second count a sentence of imprisonment for 4 years 6 months which is to be taken to have commenced on 5 March 1999 and will expire on 4 September 2003.

(b) In respect of the first count a sentence of 7 years imprisonment which is to commence on 5 September 2003 and expire on 4 September 2009.

(c) In respect of both counts the Court fixes a single non-parole period of 5 years which having commenced on 5 March 1999 will expire on 4 March 2004.

44 NEWMAN AJ: I have had the advantage of reading the draft judgment of Badgery-Parker Al I agree with both his reasons and the orders he proposes.

**********