R v Schofield - [2003] NSWCCA 3

No judgment structure available for this case.

Reported Decision:
138 A Crim R 19

New South Wales

Court of Criminal Appeal

CITATION: R v Schofield [2003] NSWCCA 3

HEARING DATE(S): 22 November 2002

JUDGMENT DATE:
6 February 2003

JUDGMENT OF: Heydon JA at 1; Hulme J at 2; Carruthers AJ at 71

DECISION: Appeal allowed; sentence imposed by Murrell DCJ quashed; By majority (Heydon JA, Carruthers AJ; Hulme J dissenting); in lieu thereof respondent sentenced to imprisonment for five years to date from 20 September 2001 to 19 September 2006; non-parole period of three years to commence on 20 September 2001 and expire on 19 September 2004; the Court directs the respondent's solicitor to explain the fresh sentence to the respondent in accordance with s16F of the Crimes Act 1914.

CATCHWORDS: Sentencing - Crown appeal against alleged manifest inadequacy of sentence - attempted possession of prohibited imports - not less than a commercial quantity of Ecstasy - two further offences on a Schedule - respondent elects not to give evidence at sentence hearing - whether and to what extent judge entitled to act upon hearsay material - probation and parole report and statements made from the bar table - appropriate allowance for assistance to the authorities considered.

LEGISLATION CITED: Crimes Act 1914, s 16A(2), s 16G, s 20(1)(b)
Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act, 2002
Customs Act 1901, s 233B (1), 233B(1)(c), 235(2)

CASES CITED: Amran Efendi v R [2001] NSWCCA 39
Bradley (1997) 137 FLR 314
Dinsdale v The Queen (2000) 202 CLR 321
Doan (unreported, CCA 27/9/96)
Dodd (1991) 57 A Crim R 349
Fabian (1992) 64 A Crim R 365
Klein (2000) A Crim R 90
Le Cerf (1976) 8 ALR 349
Malvaso v R (1989) 168 CLR 227
Muanchukingkan (1990) 52 A Crim R 354
Perrier & Richardson (1990) 59 A Crim R 164
Postiglione (1991) 57 A Crim R 301
Radenkovic v The Queen (1990) 170 CLR 623
R v Allpass (1993) 72 A Crim R 561
R v Barientos [1999] NSWCCA 1
R v Baugh [1999] NSWCCA 131
R v Behar (unreported, CCA, 14/10/98)
R v Benais [1999] NSWCCA 236
R v Bigic [2000] NSWCCA 9
R v Bimahendali (unreported, CCA, 15/12/99)
R v Blakeman [1999] NSWCCA [1999] 415
R v Bourel (unreported NSWCCA 11/12/98)
R v Bowers (1997) 97 A Crim R 461
R v Budiman (1998) 102 A Crim R 411
R v Bushell (unreported, CCA, (unreported, CCA, 7/8/98)
R v Camilleri (unreported, CCA, 8/2/90)
R v Camus [1999] NSWCCA 425
R v Capper [2000] NSWCCA 63
R v Carey (1997) 97 A Crim R 552
R v Chu (unreported, 16/10/98 CCA)
R v Dinic (1997) 149 ALR 488
R v Dizel (unreported, CCA, 23/8/96)
R v Dollwett (unreported, CCA, 6/7/93)
R v Durant [2002] NSWCCA 295
R v El Karhani (1990) 21 NSWLR 370
R v Gallagher (1991) 23 NSWLR 220
R v Guinan [2001] NSWCCA 55
R v Guiu [2002] NSWCCA 181
R v Hauser (unreported, 11/12/97, CCA)
R v Jermyn (1985) 2 NSWLR 195
R v Jurisic (1998) 45 NSWLR 209
R v Kalache [2000] NSWCCA 2
R v Laurentiu & Becheru (1992) 63 A Crim R 411
R v Lim & Yeung [2002] NSWCCA 293
R v Malcolm McDonald (unreported, CCA, 12/10/1998)
R v McGregor (2000) 120 A Crim R 24
R v Majors (1991) 54 A Crim R 334
R v Meloh [2001] NSWCCA 211
R v Moffitt (1990) 20 NSWLR 114
R v Niketic [2002] NSWCCA 425
R v Olbrich (2000) 117 A Crim R 326
R v Olbrich (1999) 199 CLR 270
R v Palu [2002] NSWCCA 381
R v Pejovski [2001] NSWCCA 182
R v Power [1999] NSWCCA 25
R v Robertson [2000] NSWCCA 266
R v Rose (unreported, CCA, 23/5/96)
R v Rocco [2001] NSWCCA 124
R v Schluenz [2002] NSWCCA 314
R v Schmakowski [2001] NSWCCA 395
R v Simpson (2001) 53 NSWLR 704
R v Slatinee [1999] NSWCCA 2
R v Soonius (unreported, CCA, 29/5/98)
R v Spillane [1999] NSWCCA 280
R v Tan [2001] NSWCCA 219
R v Chiap Nam Tan [2001] NSWCCA 438
R v Taouk (1992) 65 A Crim R 387
R v Tony Giam (No 2) [1999] NSWCCA 378
R v Tyler [2002] NSWCCA 272
R v Van Den Akker [1999] NSWCCA 426
R v W [2002] NSWCCA 192
R v Whyte [2002] NSWCCA 343
R v Wong & Leung (1999) 48 NSWLR 340
R v Woolery [2002] NSWCCA 299
R v X & R v Y [2002] NSWCCA 40
Veen v The Queen [No 2] (1988) 164 CLR 465
Wong v R (2001) 207 CLR 584
Wong & Leung v The Queen 76 ALJR 79

PARTIES :
Regina v Vichai Schofield

FILE NUMBER(S): CCA 60435/02

COUNSEL: Crown - M. Cinque
Respondent - P. Hamill

SOLICITORS: Crown - Commonwealth Director of Public Prosecutions
Respondent - Robertson, Saxton, Primrose Dunn

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0049

LOWER COURT
JUDICIAL OFFICER : Her Honour Judge Murrell SC

60435/02

HEYDON JA
HULME J
CARRUTHERS AJ
Thursday, 6 February 2003

REGINA v Vichai SCHOFIELD

Judgment

1 HEYDON JA: I agree with Carruthers AJ.

2 HULME J: In this matter I have had the advantage of reading in draft form the Reasons for Judgment of Carruthers AJ. Subject to the matters referred to below and with the exception of his Honour’s conclusion as to the appropriate sentence to be imposed on the Respondent – a sentence which should, in my view, be higher - I agree generally with his Honour’s remarks. His Honour’s detailed reference to the circumstances of the offence and proceedings also removes the need for me to recapitulate them.

3 In my view her Honour erred in her treatment of the Respondent’s criminal history. After referring to the most serious prior offence being one of malicious wounding, the fact that the Respondent was serving the parole period of the sentence imposed for that offence at the time off commission of the drug offence which brought him before her, and that that was an “aggravating feature”, her Honour continued:-

“However, it should be seen in the context that the offence of malicious wounding is an offence of an entirely different sort to the offence that is before this Court. Otherwise, the matters on the offenders criminal record fall into the category, generally, of driving matters and minor dishonesty matters.”

4 The Respondent’s criminal record included 3 traffic convictions in 1997 and 4 in 2001. The latter group included one described as “possess thing like Australian driver licence with intent to deceive”. In 1996 he was convicted of “possession of implements to enter conveyance” and “possession of offensive implement”. In August 2001, one month before the commission of the offence with which Judge Murrell was concerned, he was convicted of “goods in personal custody reasonably suspected of being stolen” and “make false instrument with intent to use”. It was in August 2000 he was convicted of malicious wounding and, as the result of a successful appeal, sentenced to periodic detention, with its associated parole period to which reference has been made.

5 The written submissions given to her Honour by the Crown included quotation of the well known passage from Veen v R (No 2) (1988) 164 CLR 465 at 477 to the effect that:-

“The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and the protection of society may all indicate that a more severe penalty is warranted.”

6 Instead of merely passing the Respondent’s record off as “of an entirely different sort” and “generally, of driving matters and minor dishonesty matters”, the above summary of the record makes it clear that her Honour should have found that the Respondent was manifesting “a continuing attitude of disobedience of the law” and dealt with him on that basis. See also R v Malcolm McDonald (unreported, CCA, 12 October 1998)

7 A second area of error lay in her Honour’s remarks and findings in the following passage:-

“The offender states that he was unaware of the quantity or nature of the substance in the crate. That assertion accords with what the Court knows of the offence. He states that he was asked by a “friend” to help out by going to the premises and assisting in the collection of the drugs, without knowing anything about it. He asserts that he was not to receive any reimbursement whatsoever. There is nothing in the prosecution facts to suggest otherwise, and the nature of the offender’s role so far as the prosecution evidence is concerned is quite consistent with these assertions by the offender.

The bottom line is that the offender, knowing that he was carrying drugs, but not knowing the quantity or nature of drugs being transported, conveyed the drugs a short distance under the direction of another person who was the organiser of that part of the operation without receiving any reimbursement for his efforts. This must place him at the very bottom of the pyramid of levels of involvement with offences of this type.”

8 The reference in the second of these paragraphs indicates, inter alia, an acceptance of the Respondent’s statements referred to in the first paragraph. But those statements were not contained in evidence. The Respondent gave none. They were not contained in a contemporaneous record of interview which might have had indications of truthfulness about it. The Respondent declined to participate in such an interview. They were not even contained in the Pre-sentence Report. If one treats them as having been made by the Respondent, they can only have been made through the mouth of his counsel at the sentencing proceedings presumably during his address on penalty and after the evidence had closed. There seems to be a detailed transcript to that time, a transcript which records, after a witness called on behalf of the Respondent had retired, “CLOSE OF CASE FOR OFFENDER”.

9 Made in those circumstances the statements were neither tested nor capable of being tested. Their author was a person whose criminal record showed a number of offences of dishonesty and the statements were made at a time when he had much to gain and nothing to lose by putting before the Court a favourable account which could not be positively disproved. And the fact that “there is nothing in the prosecution case to suggest otherwise”, when the likelihood was that the prosecution could have no information on the topics of the Respondent’s subjective knowledge, takes the matter no further. Subject to one matter to which I refer below, and even though the rules of evidence did not apply, counsel’s statements that the Respondent was ignorant of the nature and quantity of drugs and that he was to receive no remuneration had no probative value and there was no reasonable basis on which they could be, or should have been, accepted.

10 In this regard there is one matter of evidence which was before Judge Murrell SC, additional to that to which Carruthers AJ has referred. The evidence showed that the Falcon WSF 057 in which the Respondent transported the crate containing the drugs was owned by Mr Peter Ling, the Respondent’s partner in the café business. When one adds to this the other evidence referred to by Carruthers AJ that Mr Peter Ling’s father hired the car in which the co-offender Mr Lee decamped, that the Respondent contributed not only his own efforts but also his vehicle which was driven by someone else throughout the operation, her Honour’s acceptance of the Respondent’s ignorance and claim of no remuneration becomes even harder to understand.

11 I indicated a moment ago that there was one reservation to my conclusion that the statements that the Respondent was ignorant of the nature and quantity of drugs and that he was to receive no remuneration had no probative value and there was no reasonable basis on which they could be, or should have been, accepted. That reservation arises out of a passage in the judgment of the majority in R v Olbrich (1999) 199 CLR 270 at 281 (omitting a citation):-

We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion

12 Uncontested evidence was placed before this Court that “at no stage during the addresses did the solicitor appearing for the Crown raise any objection to the matters being put from the bar table and at no stage did she state there were any factual disputes arising from the matters so put” and it was submitted that it flowed from the remarks I have quoted that her Honour was entitled to make the findings that she did.

13 The first thing that may be said about the parenthesised passage is that it was not necessary for the High Court’s decision in R v Olbrich and accordingly not one by which this Court is bound. The second is that, if taken literally, it introduces, without discussion or reasoning, an entirely new dimension into sentencing proceedings.

14 Taken literally, and in light of the rules of natural justice, the passage means that insofar as the necessity for the calling of evidence is an unwillingness of the judge to act on an assertion, the judge is under an obligation during the course of the sentencing proceedings and before the opportunity of calling evidence has passed, to indicate what assertions he or she is not prepared to act upon.

15 Commonly, there are many such assertions, some contained in pre-sentence reports, some in psychological and the like reports (not infrequently canvassing much of the offender’s life) and some from the bar table. Commonly the assertions will vary in importance and they are liable to cover the range between inherently probable and inherently improbable. Not infrequently a judge, minded to reserve his decision, will not during the sentencing proceedings in any comprehensive fashion decide which assertions he is not, or may not be, prepared to act upon.

16 But unless the judge informs the parties what he is not disposed to act upon, how can they know that it is necessary to call evidence? It cannot have been the intention of the authors of the passage, so briefly expressed, to impose such an obligation on a sentencing judge.

17 A requirement, or recognition of a requirement, that an opposing party controvert any asserted fact which it is desired to dispute is not so radical a change to sentencing proceedings. Carruthers AJ has drawn attention to the remarks in R v Palu as to the need for parties to identify with particularity the areas of dispute and it is an elementary proposition that opposing parties, both of whom have rights of appeal, can be expected to do so.

18 But even in this respect also, the passage cannot have been intended to be taken literally. It cannot have been intended that however many assertions are put forward from the bar table or in reports tendered, and however improbable, inherently or in the light of other information in the proceedings, any of those assertions may be, the opposing party is bound to formally register his disagreement with them. The High Court cannot have intended to so adapt the old adage that he who asserts must prove into, in sentencing proceedings, “he who must prove need only assert, and the onus is on others to disagree”.

19 One is entitled to look at the reality of how sentencing proceedings are conducted. Assertions are, as I have indicated, often very numerous. Presumably most are intended by their makers, or counsel tendering the statements, to be taken into account or acted upon. Not infrequently the statements, or some of them, are not ones which can rationally be acted upon but neither the opposing counsel, who may be crediting the judge with some common sense, nor the judge think it necessary to canvass those matters. If counsel for the Crown is obliged to deal with every assertion of fact just because it is made, often without notice, and whether it should rationally be accepted or not, on pain of the risk of having the matter forever precluded against his client, sentencing proceedings are likely to be significantly prolonged.

20 The proceedings before Judge Murrell in this case provide a good example. Counsel for the Respondent announced that he would not be in a position to call his client. The Respondent was physically present. There was no legal impediment to him being called, so presumably counsel meant that he saw the disadvantages of calling his client as outweighing the advantages and chose not to call him to adduce evidence of the matters to which he could depose. Counsel for the Respondent called no other evidence as to his client’s knowledge or as to the circumstances of his participation in the offence and closed his case. It was after the evidence was closed that he apparently made the assertions her Honour relied on.

21 Given their nature – the Respondent’s knowledge, extent of involvement and remuneration – that the Respondent had consciously elected to give no evidence on the topics, and was in any event someone with a recent record of dishonesty, it seems to me that the Crown was fairly entitled to think that there was no rational possibility that her Honour would accept what was asserted. They were of a nature such that it was in the highest degree unlikely that in the circumstances of the case the Crown would be in a position to contradict them and, indeed, if the Crown had any evidence on the topics, one would have expected it to have been called during the course of its case in chief during the sentencing proceedings. And the time at which the assertions were made, after evidence had closed and the Crown had addressed, added further to the unlikelihood that they might be accepted. Indeed, although I do not suggest that the situation was irremediable, it was quite inappropriate if not unfair, for those topics to be raised as late as they were.

22 Given the matters referred to in the immediately preceding paragraph, one could not in the circumstances regard silence on the part of the Crown as agreement in any sense and, although I accept that her Honour was theoretically entitled to take account of assertions of fact made at that stage of the proceedings, I do not see that her acceptance of them should be beyond challenge any more than any other conclusion of fact.

23 Nothing I have said is intended to encourage any failure on the part of legal representatives to make perfectly clear what matters of significance are in dispute and, given the importance of the matters asserted, if only out of an abundance of caution, the solicitor appearing for the Crown should have done so in this case. However, it is not in my view either possible or practicable to have a blanket rule as a literal approach to the remarks I have quoted from R v Olbrich would suggest.

24 Neither does a failure to controvert an asserted fact necessarily preclude a challenge in this Court to a trial judge’s acceptance of it. The passages quoted by me in R v Kalache [2000] NSWCCA 2 at [213-216] from R v Allpass (1993) 72 A Crim R 561, Malvaso v R (1989) 168 CLR 227 and R v Jermyn (1985) 2 NSWLR 195 support this view. Of course, there are differences in the circumstances under consideration in those cases compared with a challenge under appeal to a previously undisputed matter of fact but while some of those differences argue more strongly against a challenge being, as a matter of discretion, permitted, some argue in the opposite direction.

25 Of course a failure to controvert an asserted fact at first instance will commonly prevent any challenge on appeal succeeding. To make such a challenge only after the opportunity for calling evidence of the asserted fact is past would generally be unfair. Sometimes the absence of challenge will justify the conclusion that the asserted fact was, in effect, common ground. Furthermore, once it be accepted, as it must be, that a judge is entitled in sentencing proceedings to act on assertions of fact unsupported by formal evidence, the absence of any contemporaneous challenge is calculated to make more difficult the task of convincing an appellate court that the judge was in error in the conclusion of fact he reached.

26 In this case, a challenge for the first time in this Court creates no unfairness. The Respondent through his counsel had made a deliberate decision that evidence would not be called to support the assertions. The Crown of course faces the difficulty of persuading this Court that her Honour’s factual finding was wrong but I have already indicated why in that respect the challenge should succeed.

27 While I do not accept that her Honour was justified in finding that the Respondent was ignorant of the quantity or nature of the drugs with which he was involved, I accept that there is no evidence that the Respondent had such knowledge. However, I am by no means persuaded that the Respondent’s claimed ignorance of the nature and value of the drugs is a matter which is of assistance to him. He was prepared apparently to assist, whatever the nature of the drugs and, subject perhaps to some limits influenced by the weight of the automotive transmission assembly (46 kg) or the crate containing it, whatever the quantity. In those circumstances, I see no reason why, to the extent to which the nature and quantity of the drugs are relevant, his criminality should be measured otherwise than by the nature and quantity with which he was involved.

28 In so concluding I am not unconscious of the remarks of Gaudron, Gummow and Hayne JJ in Wong v R [2001] 207 CLR 584 at [64] that “the greater the offender’s knowledge … the heavier the punishment that would ordinarily be exacted”. While I do not dissent from that as a general proposition, it seems to me to have no application in this case.

29 Nor do I regard her Honour’s findings that the Respondent’s participation was without receiving any reimbursement as particularly significant. There was no evidence he was to be remunerated. More importantly, there was no evidence he was to share in the profits dealing in drugs can produce. I doubt whether evidence of some lesser remuneration would cause me to materially change my views as to the sentence appropriate to the Respondent’s criminality as revealed by the evidence and am content to proceed on the assumption that he was not in fact, and was not to be, remunerated.

30 In this Court the Crown also criticised her Honour’s findings firstly, that the Respondent merely conveyed the drugs a short distance under the direction of another person who was the organiser of that part of the operation and secondly, that he was at the very bottom of the pyramid of levels of involvement with offences of this type. To these one should probably add a later reference wherein her Honour categorised the Respondent’s role as “one of a driver. I suppose that is a category of courier, but a fairly lowly category of courier”.

31 However, before Judge Murrell the Crown submitted that:-

The Prisoner’s role appears to be that of a courier, in that he assisted in picking up the narcotics and driving them to a location where they were discarded.

R v Olbrich.”

32 Given the Respondent’s role as disclosed in the Statement of Facts largely detailed by Carruthers AJ, I am not persuaded that her Honour’s description of the Respondent’s role was, in any sense that matters to the outcome of this appeal, erroneous. Furthermore, insofar as sentences in earlier cases may throw light on what sentence should be imposed on the Respondent, it is the group of cases dealing with couriers and others at, or close to, the bottom end of the spectrum of drug dealing offenders from which one is most likely to gain guidance.

33 I turn then to the question of the sentence itself. So far as presently relevant the Customs Act provides that an attempt to obtain possession of not less than a commercial quantity of Methylenedioxymethamphetamine or Ecstasy renders the offender liable to life imprisonment (and a fine of $750,000). A commercial quantity is 500 grams or more. Where the attempt involves an amount of .5 gram but less than 500 grams (a trafficable quantity) the maximum penalty is imprisonment for, subject to the impact of s16G of the Crimes Act (Cth), 25 years and a fine of $500,000. The effect of s16G is to reduce that maximum to, effectively, about 16½ or 17 years – see R v Bourel (unreported NSWCCA 11 December 1998); El Karhani (1991) 21 NSWLR 370 at 385; Bradley (1997) 137 FLR 314; Doan (unreported, CCA, 27 September 1996); Li (1998) 1 VR 637 at 641-2.

34 The provisions of the Customs Act thus make very clear that Parliament regards dealing in ecstasy very seriously and something to be strongly deterred. No great experience in the courts is needed to see the harm that drugs such as ecstasy do and to know that superior courts also have made it abundantly clear that “stern punishment” – (2001) 207 CLR 584 at [64], or “heavy penalties” - Le Cerf (1976) 8 ALR 349, at 351, should be imposed.

35 Deterrence is to be given chief weight in the sentencing task - Wong v R at [64]. See also the authorities cited in R v El Karhani (1990) 21 NSWLR 370 at 371-2. Furthermore, as was accepted in Schmakowski [2001] NSWCCA 395 at [27-8]:-

“It must be seen that there is a real price to pay for flaunting the laws prohibiting the importation of drugs. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent.”

36 To similar effect are the remarks of Simpson J, with whom Meagher JA and Sperling J agreed, in R v Benais and which were quoted with approval in R v Bimahendali at [32]:-

“(23) The escalation in drug use in this country is a matter of notoriety, as is the effect of drug use and abuse on the wider community. While minds may and do differ on policies that should be adopted in relation to drug use and on drug addiction there is, as I perceive it, less controversy about tolerance of imported drugs such as ecstacy.

(24) Governments and government agencies that struggle to control the importation of drugs deserve the support of the courts. Their efforts are diminished where courts fail to give that support. To fail to give the necessary support is to undermine the efforts that have been made by governments and other agencies to control the spread of drug use.”

37 The remarks quoted apply equally to those who choose to assist the importers or those who deal with the drugs after importation.

38 A sentence must reflect the objective seriousness of an offence - R v Camilleri (unreported, CCA, 8 February 1990); Dodd (1991) 57 A Crim R 349; R v Whyte [2002] NSWCCA 343 at [157] - and this principle extends to the non-parole period – R v Simpson (2001) 53 NSWLR 704 at [63]; R v Behar (unreported, CCA, 14 October 1998) and the cases there cited.

39 A sentence of imprisonment for a period of 28 months, including a non-parole period of 18 months on someone who gave active assistance in an attempt to possess either 2 kilograms of ecstasy, or an unknown quantity of an unknown, but known to be illegal, drug, gives no recognition to the matters referred to in the immediately preceding paragraphs. The sentence is neither stern, nor heavy, nor an effective deterrent to others. It bears no reasonable relationship to sentences imposed in other cases, which have come before this Court and to a number of which – R v Bowers, R v Budiman, R v Bushell, R v Dinic, R v Hauser and R v Spillane - her Honour was referred. (Attached to these Reasons is a schedule which contains reference to these and other cases. It is accordingly unnecessary to provide their citations here.) A fortiori is there no reasonable relationship when regard is had either to the quantity of drug with which the Respondent was involved or even the simple fact that, as reflected in the charge against him, it was a commercial quantity.

40 I do not forget that the Respondent was entitled to have taken into account in his favour, his plea of guilty and his assistance to the authorities but s16A of the Crimes Act (Cth) also requires the Court to take into account “the need to ensure that the person is adequately punished for the offence” and demands that the Court “must impose a sentence that is of a severity appropriate in all the circumstances of the offence”. The sentence imposed on the Respondent fell so far short of one of an appropriate severity even on the basis of her Honour’s findings of fact that, absent reasons why this Court should as a matter of discretion, decline to interfere, the appeal by the Crown should succeed. There are no such reasons.

41 Nor are there any circumstances which argue in any way persuasively against this Court imposing on the Respondent, as commonly occurs in successful Crown appeals, the least sentence that should have been imposed at first instance – R v Rose (unreported, CCA, 23 May 1996); R v Baugh [1999] NSWCCA 131; R v Tony Giam (No 2) [1999] NSWCCA 378 at [28]; R v Jurisic (1998) 45 NSWLR 209 at 232

42 The offence to which the Respondent pleaded guilty rendered him liable to imprisonment for life. Given that that penalty applies to all quantities above 500 grams it must include quantities measured in the hundreds, or theoretically thousands of kilograms. Thus the definition of the offence provides scant assistance in determining where on the scale of seriousness the instant offence lies. And the assistance is only marginally better if one compares the quantity with which the Respondent was involved with the largest quantity the subject of a prosecution of which I am aware – the 66 kilograms in R v W. On the other hand the offence committed where the quantity is trafficable does provide a guide. For Parliament has indicated that in a worst case – see Veen v R (No 2) (1987-1988) 164 CLR 465 at 478 - involving less than 500 grams, 16½ years (after the s16G discount) imprisonment is appropriate. Consideration of the statutory provisions relating to both offences, i.e. those involving trafficable and commercial quantities, indicates that once the 500 grams limit is exceeded to a significant extent, the appropriate penalty in a case which in respects other than quantity falls within the description of a worst case should exceed the maximum penalty prescribed for trafficable quantities –16½ or 17 years. That it is appropriate to consider offences involving commercial quantities against the benchmarks laid down for trafficable quantities was the view of the Victorian Court of Criminal Appeal in Perrier and Richardson (1990) 59 A Crim R 164 at 168-9 and 174.

43 That is not to say that penalties, either actual or theoretical maximum are, or should be, proportional to quantity. The terms of the legislation make it clear that Parliament has eschewed that approach and so have the courts – see e.g. R v Doan (unreported, CCA, 27 September 1996); Postiglione (1991) 57 A Crim R 301. On the other hand the provisions of the Customs Act, and other statutes making possession and supply of drugs illegal, have been enacted in the belief that the use of the drugs referred to therein is harmful, and importing, supplying and dealing in them contributes to this harm. Although it is obviously not the sole criteria, other things being equal dealing with a commercial quantity is more heinous than dealing with a quantity not answering that description. Other things being equal, doubling the quantity is calculated to double the illegal profits for the principals engaged in a drug dealing activity and, if not to double, at least substantially increase the harm. “In general, … the larger the importation, … the heavier the punishment that would ordinarily be exacted” – Wong v R (supra) at [64].

44 The quantity of 2.097 kilograms involved in the Respondent’s offence was 4 times the top of the trafficable range. Thus were the case one which in other respects fell within the description of a worst case the appropriate penalty would be one which well exceeded 16½ or 17 years imprisonment.

45 I have already indicated that I do not regard any ignorance the Respondent may have had of the quantity involved as a factor arguing for a lower penalty than if he had known what the quantity was. His role as a driver or courier meant however that his criminality was, and the sentence imposed on him should be, substantially less than that of a principal or a “worst case” offender. On the other hand, operations such as that in which the Respondent participated need the assistance of others such as the Respondent. This fact inspired Wells J in Le Cerf (1976) 8 ALR 349, at 351 to say:-

“It is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were not middlemen and underlings, there would be no top men in an organisation. If an organisation is starved of recruits it must collapse. …

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.”

46 That passage has received endorsement in this Court on numerous occasions – see e.g. Muanchukingkan (1990) 52 A Crim R 354 at 356; R v Laurentiu and Becheru (1992) 63 A Crim R 402; Fabian (1992) 64 A Crim R 365 at 376; R v Budiman (1998) 102 A Crim R 411 at 413-4; R v Behar (unreported, CCA, 14 October 1998); See also Klein (2000) A Crim R 90 at 95.

47 How much less is the criminality and, what is not necessarily the same thing, how much less any punishment for the lesser role, even when the extent of that role is known, should be when compared with the situation of a principal, is very much a matter of judgment. While clearly the demands of retribution are not as high, and the needs of the protection of society may not be, the needs of general deterrence, the most important of the principal considerations of sentencing in this area, are not obviously less. Nor are the needs of personal deterrence or the incidents of rehabilitation.

48 Annexed to these Reasons is a schedule of all of the cases in this Court of which I am aware, apart from one or two where other factors made their inclusion pointless, where the drug involved was ecstasy, although I should acknowledge that I have not attempted to carry out a comprehensive search. Also included is one case, Carey, decided by the Court of Criminal Appeal in Victoria. I have also attached a table of the cases in the schedule arranged in order of the quantity of drug involved. Its purpose is as an aide to identifying any pattern which may exist. As part of that table I have referred to the more significant features of some of the cases but I do not suggest that in all cases those references provide an adequate account of the features of the cases where they appear. They may however help to explain some apparent aberrations and the full summary is available in the schedule. Of course, some decisions carry more weight than others. An unsuccessful appeal by an offender against the severity of a sentence is not necessarily an endorsement of the sentence.

49 I acknowledge the reservations expressed by Wood CJ at CL in Schnakowski of any attempt to derive sentencing patterns from a collection of cases involving a wide range of objective and subjective circumstances. Nevertheless, so long as the limitations of schedules and tables such as I have prepared are recognised they seem to me to be useful, not as a substitute for the exercise of judicial discretion in the circumstances of a particular case, but as a guide and restraint on unjustified inconsistency.

50 The schedule and table suggests that an appropriate sentence for a courier who has pleaded guilty but who does not receive any discount for assistance, when the quantity involved is trafficable will commonly be of the order of 6 years or more. Where the quantity is between one and 2 times the commercial quantity (500 grams) the sentence for such couriers will probably be somewhat higher and once one moves into a quantity of 1 to 2 kilograms, 2 to 4 times the minimum commercial quantity, the sentence is likely to be, or be of the order of, 10 years. Of course, it is obvious that there are cases which argue for lower penalties.

51 Given the general approach that ecstasy is a mid-range drug, less harmful than heroin or cocaine, this pattern is consistent with, and somewhat lower than, that deduced by this Court in R v Wong and Leung (1999) 48 NSWLR 340 from sentences on couriers of heroin and cocaine. There the Court concluded that the pattern shown by prior decisions was:-

2 - 200 grams 5-7 years

200grams – 1 kilogram 5.4 to 10 years

1 - 1.5 kg (heroin) 6.5 –10 years
1 - 2 kg (cocaine) 6.5-10 years

52 (Under the Customs Act, those dealing in heroin or cocaine, once they come within the trafficable and commercial ranges, are liable to the same penalties as persons dealing with ecstasy. However the commencing points of the ranges are different from those for ecstasy. For both heroin and cocaine the trafficable range commences at 2 grams. In the case of heroin the commercial range commences at 1.5 kg. In the case of cocaine the commercial range commences at 2 kg.)

53 The criticism by members of the High Court in Wong v R of this Court’s decision in R v Wong and Leung was not directed to the analysis which I have quoted.

54 I confess one feature I find surprising in both patterns is how small is the difference in sentences for lower and higher quantities. I find it impossible to reconcile those parts of the patterns as suggest that someone involved with quantities of under, say 200 grams should receive a sentence of the order of 6 years with those as suggest someone involved with 8 to 10 times as much, should receive a sentence of the order of 10 years. Of course factors other than quantity will often intrude but commonly there are none which can in any satisfactory manner explain the difference. However, the topic was not argued. Its exploration is not calculated to assist the Respondent and I need not pursue it further.

55 In the case of the Respondent there are also to be taken into account the offences of attempting to possess 60.2 grams of methylamphetamine and 74.8 grams of amphetamine. The range for trafficable quantities of these drugs is from 2 grams upwards and thus each of these offences rendered the Respondent liable to imprisonment for about 16½ to 17 years and a fine of $500,000. Of course, as these offences were included on a schedule, no separate penalty for them could be imposed. However, as themselves serious offences, they merited prima facie some additional punishment.

56 On the other hand, it is appropriate to recognise that the drugs the subject of the offences to be taken into account are also regarded as middle range drugs and indeed that the Schedule to the Customs Act places the lower limit for the trafficable quantity of them at 2 grams rather than the 0.5 grams for ecstasy and does not specify a commercial quantity at all. Although I regard quantity as a very relevant matter in sentencing for offences of the nature of those which the Respondent committed, it does not seem to me of great moment in this case where the Respondent did not know of the particular quantities and types, that some of the drugs fell within one description rather than another of, according to the authorities, a roughly similar degree of offensiveness. It is a case where justice would be done by imposing a sentence which reflected augmentation of the quantity of ecstasy by the quantity of the other drugs rather than by seeking to increase the sentence otherwise appropriate for the ecstasy offence to reflect the commission of 2 other offences. Compared with the quantity of ecstasy, the quantities of those other drugs are, of course, minimal.

57 The Respondent is entitled to some discount on account of his plea of guilty and assistance to the authorities from the sentence which would otherwise be imposed. Her Honour did not quantify the former but allowed 30% for the assistance. I agree with Carruthers AJ that that figure is excessive. It seems to me that the allowance should be of the order of that allowed by Carruthers AJ – one year of 6 or, expressed in terms of percentage, 16.66%.

58 Her Honour recorded that the Respondent entered his plea at the earliest reasonable opportunity. Hence, putting aside other factors, he was entitled to a significant discount on that account. However, it is clear that the Crown case against the Respondent was one easily proved. Either judged by its utilitarian value or as an indication of the Respondent’s willingness to facilitate the administration of justice, the plea was not one which merited a discount at the top of the range. Again, putting aside other factors, I would allow a discount of the order of 15-20%. However, as I have indicated, many of the sentences recorded in the schedule and table already reflect the fact of a plea of guilty. Many also reflect findings of contrition.

59 The Respondent does have the benefit of such a finding and also that he was but “a driver … and a fairly lowly category of courier”. Operating in the opposite direction are the very significant factors that he was on parole at the time and that his conduct was manifesting a continuing attitude of disobedience of the law.

60 Lest it be thought I have overlooked them, I make it plain that I do not ignore a number of matters which her Honour seemed inclined to regard as favourable subjective matters. Included in these were what her Honour referred to as the Respondent’s upheaval from Thailand when he was 8 – at the time of sentence he was 24 – and for a time a strong work ethic and, as appears from a passage I have quoted, some honesty. I have also had regard to the list of matters to which s16A of the Crimes Act refers.

61 I should refer to the fact that the Respondent was charged only with an attempt to possess. Although I accept the proposition that an attempt to commit an offence may be of lesser seriousness than a completed offence – see Taouk (1992) 65 A Crim R 387 at 390 to which Carruthers AJ referred - much turns on the nature of the offence. Thus while a successful supply of illegal drugs into the community is more serious than an attempt at that supply, I do not regard the latter offence as significantly differing in seriousness from an actual supply to a police officer where the result is the forfeiture or destruction of the drugs. Similarly I would not regard many attempts at possession as different in seriousness from possession itself in circumstances where the authorities intervene and seize the drugs. More particularly for present purposes, I see no significant difference in criminality between the attempt to obtain possession in this case and the importation of the same drugs by a courier apprehended at the airport.

62 It must not be forgotten that Parliament has provided that the penalty for an attempt is the same as that for a completed offence. Any general proposition that an attempt is necessarily less serious than a completed offence is inconsistent with the tenor of the legislation.

63 In my view the head sentence to be imposed on the Respondent is one of 7 years. I have indicated that because the quantity involved in the Respondent’s offence was 4 times the top of the trafficable range, if the case was one which in other respects fell within the description of a worst case, the appropriate penalty would be one which, after the s16G discount, well exceeded 16½ or 17 years imprisonment. His lesser role leads me to the view that, after the s16G discount but before any discount for assistance or for his plea the appropriate sentence would be one of the order of 11 years.

64 Particularly when regard is had to the matters referred to below, such a stance is supported by the decision in Carey where the subjective circumstances of the offender were far more favourable than those of the Respondent, and when the difference in quantity is taken into account, the decisions in Bowers, Tan [2001] NSWCCA 219 and, notwithstanding the difference in plea, Amran Efendi. Again when account is taken of the difference in quantity it seems to me to accord with the remarks of the Chief Justice in R v Behar that, as a starting point, 10 years after the s16G discount (but implicitly before account was taken of a plea) was at the lower end of the range for a courier of 1231 grams. The starting point is more than supported by the decisions on trafficable quantities.

65 Had it stood alone, the Respondent’s somewhat lesser role than that of most couriers might have justified some downward adjustment of the 11 year figure but the fact of being on parole at the time and that his conduct was manifesting a continuing attitude of disobedience of the law more than offset any notional credit on this or any other account. Indeed, but for the fact that I am approaching the matter in light of the double jeopardy to which the Respondent has been subjected, I would have adopted a higher figure. Nothing less than the terms to which I have referred are appropriate to reflect the requirements of s16A of the Crimes Act, viz. “the need to ensure that the person is adequately punished for the offence” and that the Court “impose a sentence that is of a severity appropriate in all the circumstances of the offence” and the requirement of general deterrence for the serious assault on society which the Respondent’s offending constituted.

66 I would fix the non-parole period at 4½ years. The commencing date of both periods should be the date of the Respondent’s arrest, 20 September 2001.

67 It is apparent in what I have said above that I have so far taken no account of the repeal of s 16G of the Crimes Act (Cth) by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act, 2002. Indeed the above was written before that repeal occurred. By virtue of s 4 of that last mentioned Act the repeal applies to any sentence imposed on or after the Act’s commencement, whether or not the offence was committed before its commencement.

68 The Respondent’s offence was committed on 20 September 2001. He was sentenced by Judge Murrell SC on 28 June 2002. The appeal by the Crown was heard in this Court on 22 November 2002. The non-parole period fixed by Judge Murrell is due to expire on 19 March 2003 and the full term of the Respondent’s sentence on 19 January 2004. Quite apart from the repeal of s 16G, I am proposing a very substantial increase in his sentence.

69 Because of the element of double jeopardy in Crown appeals, this Court has a discretion even where a sentence under appeal is manifestly inadequate, to dismiss the appeal or to impose a sentence which is lower than otherwise appropriate. In the particular circumstances of this case, I would exercise that discretion so as to, in effect, give the Respondent the benefit of s 16G.

70 In summary, the appeal by the Crown should be allowed, the sentence imposed by Judge Murrell quashed, and the Respondent re-sentenced to imprisonment for a term of seven years such term to include a non-parole period of four and a half years with both terms commencing on 20 September 2001.

R v SCHOFIELD

SCHEDULE

NOTE: In this schedule all of the cases concern ecstasy unless otherwise stated. The weights stated are “pure”. The Customs Act specifies, for ecstasy, 0.5 grams as the bottom of the trafficable quantity and 0.5m kilograms as the bottom of the commercial range; for methylamphetamine, 2 grams is the bottom of the trafficable range and there is no commercial range.

In Amran Efendi v R [2001] NSWCCA 391 the applicant for leave to appeal had been convicted of one count of importing about 0.8 kg of ecstasy and one of 10.7 grams of methylamphetamine. On the first count a sentence of 10 years imprisonment with a non-parole period of 6 years was imposed. On the second count a fixed term of 5 years was imposed. He was regarded as a courier, being paid $3,000 for his efforts, and had been apprehended at the airport. He was 39, had no prior criminal history but there was no evidence of contrition. He would have difficulties in prison, speaking no English and having no family in Australia. This Court saw no reason to interfere, even if the sentence marked the top of the relevant range revealed in the statistics.

In Behar (unreported, CCA, 14 October 1998) the respondent pleaded guilty to a charge of importing 1.231 kg contained in some 11,500 tablets. The street value was estimated to be about $1M. He was regarded as a courier and sentenced at first instance to imprisonment for 6 years with a non-parole period of 18 months. A discount of 4 years was allowed off the head sentence and a discount of 50% plus 6 months was allowed off the non-parole period for assistance. Effectively there was no appeal against the head sentence of 6 years. Accepting the discounts of 50% and 6 months this Court increased the non-parole period to 30 months. Spigelman CJ, with the concurrence of the other members of the Court said that in the working out of the appropriate sentence for an offence of the character under consideration, a starting point of 10 years was too low unless it were reached after the discount required by Section 16G of the Crimes Act (Cth) was allowed, and even then it might be at the lower end of the appropriate range. The subjective features were strong.

In R v Benais [1999] NSWCCA 236 the offender, who pleaded guilty, was sentenced to imprisonment for 6 years with a non-parole period of 3 years for importing 1,560 tablets containing 61 grams. He had been apprehended at the airport and was regarded as a courier. Although he was to receive $7,000 for his efforts, his involvement was attributed to need not greed. He was of previously good character, had no prior convictions and was contrite. The sentencing judge took as his starting point 9 years and then applied the s16G discount. This Court took the view that neither the starting point nor the sentence was excessive and that the courts must support governments in their efforts to control the importation of drugs.

In R v Bigic [2000] NSWCCA 9 this Court refused to reduce a sentence of 9 years with a non-parole period of 6 years on an offender who was knowingly concerned in the importation of 15,800 tablets weighing 2.255 kgs and consisting in part of methylamphetamine and in part of methorphan which, according to the evidence, was commonly sold as ecstasy. Both substances were treated as mid-range drugs. The offender was regarded as a “mid-level participant”. He pleaded guilty on the morning of his trial and seems not to have been regarded as contrite. A parity argument based on sentences, before discount for assistance, of 6 years with a 4 years non-parole period imposed on the couriers of the drug was rejected.

In R v Bimahendali (unreported, CCA, 15 December 1999) this Court dismissed an appeal against a sentence of 6 years, including a non-parole period of 4 years on an offender who pleaded guilty to being knowingly concerned in the importation of 80.1 grams of methylamphetamine said to have been worth between $150,000 and $500,000. He was regarded as “a prime mover if not the prime mover” in the commission of the offence. He was aged 31. The Court rejected an argument that, because the bottom of the trafficable range for amphetamines is greater than for ecstasy sentences for the former should be lower than for the latter drug.

In R v Blakeman [1999] NSWCCA 415, this Court dismissed an appeal against a sentence of 3½ years with a non-parole period of 2 years and 3 months on an offender who was convicted of a charge of conspiracy to import 296 tablets including 25.4 grams of ecstasy. The applicant had arranged that, while overseas, he would post articles containing the drug to post office boxes taken out in false names. He was 41, had an impressive work record and character references and was regarded as having no relevant criminal record. There was substantial delay – some 3 ½ years - not the fault of the applicant, in bringing him to trial. The Court said that the sentence was well within the appropriate range.

In R v Bourel (unreported, CCA, 11 December 1998) this Court dismissed an appeal against concurrent sentences of imprisonment of 7 years with non-parole periods of 4½ years on each of 2 counts of being knowingly concerned in importation. The quantities involved were 16.3 and 315.1 grams. The applicant was a financier and his role assessed as no lower than about the middle of the range. The offender was of prior good character, had no prior criminal record and the offence had occurred when the offender was under emotional strain. He had pleaded not guilty.

In Bowers (1997) 97 A Crim R 461 the applicant pleaded guilty to a charge of importing not less than a commercial quantity. The number of tablets involved was some 7,000, the value of which was estimated to range between $105,000 and $700,000 depending upon the level in the chain of distribution at which the assessment was made. The report does not disclose the quantity involved but reference to the Court file shows it was 719.2 grams. The Applicant was a courier who was to be paid 5,000 pounds for his efforts. He had no prior convictions and had been unemployed for some period. He was apprehended at the airport with the tablets strapped to his body, made substantial admissions and pleaded guilty at an early stage. He was found to be contrite. He had offered to participate in a controlled delivery but his offer could not be taken up. This court recognised that there had been errors - operating in opposite directions - in the sentencing process but declined to interfere with a sentence imposed of 8½ years imprisonment with a non-parole period of 4½ years. Ireland JA described the sentence as proper. Hunt CJ at CL, with whose observations Levine J agreed, said that he would not impose any shorter sentence and that the correct range was much higher than a number of decisions of the District Court to which reference had been made.

In Budiman (unreported, CCA, 8 September 1998) the applicant was convicted of being knowingly concerned in the importation of 8,095 tablets containing 591gms pure of ecstasy. He had come to Australia to be the consignee of a parcel of speakers containing the drug and was regarded as a courier. He had a previously unblemished character. Having maintained his innocence at the trial and subsequently he did not have the benefit of any finding of contrition. This Court refused to interfere with the sentence imposed of 8 years and 3 months imprisonment with a non-parole period of 6 years and 3 months observing that the sentence was “one which His Honour was perfectly able to reach”. In arriving at the sentence imposed, a discount of 9 months had been allowed for willingness to assist with a controlled delivery but the report does not say what term(s) the 9 months was deducted from.

In Bushell (unreported, CCA, 7 August 1998) the applicant had been found guilty of importing 4970 tablets consisting of 166.77 grams of MDMA and 165.09 grams of MDEA (both “ecstasy”). In substance this Court declined to interfere with a sentence of 7 years imprisonment with a non-parole period of 4 years. He was regarded as a courier and as having no relevant prior convictions. The sentence reflected a discount of 6 months off the “fixed sentence” for assistance to the authorities and an unspecified discount because, due to health problems, the applicant would have special difficulties in custody.

In Camus [1999] NSWCCA 425 this Court allowed a Crown appeal from a sentence of 8 years with a non-parole period of 5 years and imposed a sentence of 10 years with a non-parole period of 6 years on an offender who pleaded guilty to being in possession of a prohibited import, viz. 736.5 grams of ecstasy. Sully J, with the concurrence of Wood CJ at CL and Simpson J, said that the sentence was distinctly lower than what he considered the proper sentence at first instance should have been. The offender’s role included finding customers, sampling some of the product to see if it was saleable, arranging the return of some that was not and, in the sentencing judge’s words “one of importance in the distribution”. The offender was to receive $40,000 for his role and was found to be motivated by greed. The sentencing judge regarded the offender as genuine in expressions of contrition and remorse but was not able to come to any conclusions as to prospects of rehabilitation. This Court regarded the plea as opportunistic and entitling the offender to only a modest reduction on that account.

In R v Capper [2000] NSWCCA 63 this Court refused leave to appeal against a sentence of imprisonment of 5 years including a non-parole period of 3 years imposed on an offender who pleaded guilty to being knowingly concerned in the importation of 167.1 grams of ecstasy. The report contains no details of the offence, it being said that there was “nothing remarkable” about it. The only ground of appeal was based on hardship to the offender’s 10 and 12 years old children of whom, in practical terms he was the sole parent.
In Carey (1997) 97 A Crim R 552 the applicant pleaded guilty to importing about 2kgs pure, the street value of which was said to be more than $1M. He was apprehended at the airport and thereafter participated in a controlled delivery of the drugs. In consequence a number of persons were arrested and much valuable information passed on to the police in the United Kingdom whence the applicant had come. The applicant had undertaken to give evidence on behalf of the Authorities. As facts operating in the applicant’s favour, the sentencing Judge took cognisance of the following:-

(i) That the applicant’s offending was isolated to this occasion;
(ii) that, as a courier, the applicant was low in the hierarchy of the enterprise;
(iii) the applicant’s early plea of guilty;
(iv) the deprived and disadvantaged lifestyle of the applicant;
(v) the demonstration by the applicant of his will to rehabilitate himself;
(vi) his co-operation with authorities in the past.

The “deprived and disadvantaged lifestyle” of the applicant merits explanation. Aged 25, he had lived in Liverpool all this life and his situation was described as follows:-

“You were living a life of bare existence, close to the poverty line, in Liverpool. You have only rudimentary education. You have no skills. Not surprising therefore you had little or no work. You have lived in sub-standard accommodation. You had an alcohol problem. Life for you was miserable with no prospect of improvement in your lot.”

The sentencing judge held that but for the reduction to be allowed for future assistance pursuant to Section 21E of the Crimes Act, the appropriate sentence was one of 12 years imprisonment with a non-parole period of 8½ years. The allowance which he made pursuant to Section 21E was 4 years and 3 years for the head sentence and non-parole period respectively.

Taking the view that the applicant’s miserable and cheerless existence played a significant part in his succumbing to the an offer of role of courier in return for a paid flight to Australia, the promise of a 2 week “holiday” and $10,000, the Victorian Court of Appeal said that 12 years was excessive, reduced it to 10 years ultimately imposing, once the Section 21E discount was taken into account, a sentence of 6 years with a minimum term of 3½ years. It appears from the report that Section 16G required adjustments to be made in Victoria as it does in New South Wales. The Court also made an examination of a number of previous decisions saying it disagreed with remarks in Bowers to the effect that a sentencing range or pattern had been emerging from the offence of importing a commercial quantity of ecstasy.

In Dinic (1997) 149 ALR 488 the applicant pleaded guilty to possession of some 1900 tablets the pure weight of which was 159.4 grams with an estimated street value of $160,000. The applicant was sentenced to imprisonment for 5 years with a non-parole period of 3 years. He had forwarded money to the person who sent the tablets to Australia and was regarded as in the nature of a middle man, more culpable than a courier. Complaint was made that the sentencing judge had not made sufficient allowance for the applicant’s plea, his remorse and assistance to the authorities. As to the latter the judge had said that the information provided was of little value but the applicant would be afforded some credit for it. Newman J, with the concurrence of the other members of this Court, said “it is difficult to see how his Honour could have passed a more lenient sentence” and that no error had been demonstrated.

In Dizel (unreported, CCA, 23 August 1996) the applicant had pleaded guilty to importing 40.9 grams consisting of 310 tablets said to have a street value of $12,400. This Court declined to interfere with a sentence of 10 years imprisonment with a non-parole period of 7½ years. The applicant was a courier who had been apprehended at the airport and his plea was regarded as but a recognition of the inevitable. The offence was motivated by a desire for monetary gain which the offender said was $5,000. The applicant had offended in respect of drug matters in France in late 1985 but there were no details of this. Regarded as of much greater importance was the fact that in July 1989 he had been sentenced to 6 years imprisonment in Japan for importing over a kilogram of cocaine.

In Dollwett (unreported, CCA, 6 July 1993) the report does not indicate whether the applicant pleaded guilty but reference to the Court file shows he did. His offence was conspiracy between March 1990 and June 1991 to supply ecstasy, implicitly in a trafficable quantity. During the period he had brought or sent at least 600 tablets containing the drug into Australia on at least 6 occasions. When arrested some 107 grams of ecstasy was found, although it is not clear that this was the pure weight. The applicant had a reasonable advanced stage of HIV which was expected to develop into AIDS in the foreseeable future and his days were regarded as severely numbered. There was evidence that the effect of prison would be harsher on the applicant than usual. Because of errors in the sentencing process, this Court re-sentenced the applicant and imposed a minimum term of 2½ years and an additional term of 10 months.

In R v Durant [2002] NSWCCA 295 this Court dismissed an appeal against sentences of 7 years including a non-parole period of 4 years and 3 months and 18 months to be served concurrently imposed in respect of charges of being knowingly concerned in the importation of firstly, ecstasy and secondly 10.9 grams of cannabis resin. There were 2,213 tablets containing 166 grams of ecstasy. The street value of both drugs was between $45,000 and $100,000. The offender had brought the tablets into Australia on, or in, his body. The sentencing judge rejected the view that the applicant was a courier and concluded he was responsible for the importation in a serious and significant way and more than half-way up the scale of culpability. There was evidence before this Court that the offender was paid 10,000 pounds for his involvement. 10% discount had been allowed for the offender’s plea. The Court concluded from a schedule of some 32 cases (not identified in the report) that the sentence imposed was well within the range.

In R v Guinan [2001] NSWCCA 55 the appellant had been convicted of one count under the Financial Transactions Reports Act, 1988 (Cth), one count of being knowingly concerned in the importation of 2500 tablets containing about 205 grams of ecstasy and a further count being knowingly concerned in the importation of another similar number and quantity of ecstasy. The sentences imposed on these counts were, respectively, a fixed term of imprisonment of 12 months, a fixed term of imprisonment of 4 years, and imprisonment for 9 years with a non-parole period of 6 years. The report does not reveal why, for apparently similar offences, the sentences for the second and third were so different. The sentences were concurrent. The 5000 tablets had a wholesale value of between $75,000 and $125,000 and a retail value of $500,000. This Court found error in the trial judge’s characterisation of the appellant as “the principal entrepreneur in Australia” but said that there was no reason to think that his role was a minor one, e.g. that of a mere courier. It declined to interfere with the sentences.

In R v Guiu [2002] NSWCCA 181 this Court reduced to a term of 6 years with a non-parole period of 3 years and 9 months the sentence imposed on an offender who had been found guilty of attempting to obtain possession of a commercial quantity of ecstasy, consisting of 10,000 tablets. Reference to the Court file shows that the pure weight of ecstasy was about 1.102 kilograms. The reduction in sentence was because of error in the sentencing process. This Court took the view that “the evidence supports a conclusion that the applicant willingly and knowingly engaged in the pick up of drugs from a person she knew to be an international courier to provide them to her husband who she knew was knowingly concerned in the importation and delivery to whom she knew would commence the process of distribution”. She was more than a mere collector of the drugs. The Court was influenced by considerations of parity with the importer and the offender’s husband. The offender was 44 and there were some favourable subjective circumstances.

In Hauser (unreported, CCA, 11 December 1997) the applicant had pleaded guilty, but only on arraignment, to attempting to obtain possession of ecstasy which had been imported. According to the judgment, the quantity involved weighed 2 kgs and comprised 6,000 tablets with a street value of between $420,000 and $620,000. Reference to the Court of Appeal file shows that the pure weight was 521 grams of MDMA and 80 grams of MDEA, both of which fall within the description of “ecstasy”. Judge Herron QC imposed a sentence of 6 years with a non-parole period of 3½ years after taking off 2 years from the sentence he would have otherwise imposed, for Hauser’s plea and limited co-operation with the authorities. Hauser was regarded as more than a courier and to be a junior partner in the enterprise. He seems to have been regarded as previously of good character. Influenced at least in part by R v Bowers this Court described the sentence as “well within the range of a proper sentencing discretion” but, on grounds of parity, reduced it to one of 4½ years with a non parole period of 2½ years.

In R v Lim and Yeung [2002] NSWCCA 293 both offenders were convicted of having had in their possession prohibited imports being not less than the commercial quantity of ecstasy. (Co-offenders Cong Tam Dang and Chiap Nam Tan – see below - had pleaded guilty.) The ecstasy was contained in about 46,000 tablets with a street value of $60 each. Reference to the Court file indicates that the quantity of ecstasy was about 6.15 kg. Each was sentenced to imprisonment for a period of 9 years with a non-parole period of 5 years and 4 months. When arrested each offender had $40,000 strapped to his body and an airline ticket to Malaysia. Both seem to have some active involvement with a suitcase that contained the drugs but otherwise there is relatively little detail in the report as to the particular role each offender played.

Yeung was the only one of these offenders who appealed against sentence and then only on the ground one of the judge’s factual findings was wrong. The appeal was dismissed.

In MacGregor (2000) 120 A Crim R 24 the applicant had been committed for sentence on 4 charges, only one of which was relevant to his appeal, a charge of attempting to possess. A courier had brought into Australia some 8000 tablets containing 657.3 grams of ecstasy but had been detected at the airport. A controlled delivery containing a little ecstasy was arranged and the applicant picked this up from the courier. The applicant’s involvement was motivated by financial gain. He was 23 at the time offending, had no prior record and was regarded as having good prospects of rehabilitation. The sentencing judge had said that she would sentence the applicant upon the principles applicable to couriers and imposed a sentence for this offence of 9 years with a non-parole period of 6 years. Hidden J, with the concurrence of Mason P and Carruthers AJ said that the sentence of 9 years appeared excessive but that the applicant’s entitlement to have it reduced was put beyond doubt by considerations of parity. The Court reduced the sentence to one of 8 years imprisonment with a non-parole period of 5 years.

In R v Meloh [2001] NSWCCA 211 the applicant had pleaded guilty to an offence of being knowingly concerned in the importation of a trafficable quantity, viz 471.5 grams contained in some 5,300 tablets. Pursuant to an arrangement in which he had participated, he was the recipient of a package which, but for the intervention of the authorities, would have contained the drug. He was regarded as “a low level operative in the hierarchically organised structure of the operation” but “not just a courier and someone who “did organise the actual importation”. The applicant was a refugee and susceptible to pressure and had participated in order to obtain a passport to enable his sister to leave Somalia. He was accepted to be contrite. The sentencing judge had imposed a sentence of 6 years imprisonment including a non-parole period of 4½ years. The appeal was against the non-parole period and this Court reduced it to 3 years and 7 months.

In R v Niketic [2002] NSWCCA 425, this court refused to reduce a sentence of 7½ years including a non-parole period of 4½ years imposed on an offender who pleaded guilty at the committal proceedings to importing not less than a commercial quantity of ecstasy, viz. 1.1953 kg contained in some 9,800 tablets worth approximately $690,550. The offender was apprehended at the airport but he declined to be interviewed and it was impossible to determine his role. He was infected with HIV but it is not clear what, if any, weight had been given to this.

In R v Pejovski [2001] NSWCCA 182 the offender had been convicted of attempting to obtain possession of a trafficable quantity of ecstasy, viz 214.4 grams sent by post from Belgium. Having received the parcel he passed it on to other persons. He was sentenced to imprisonment for 6 years with a non-parole period of 4 years. He had no relevant criminal history and other favourable subjective circumstances. Because the sentencing judge had not made adequate differentiation on that account between the offender and a co-offender, this Court reduced the non-parole period by 6 months.

In R v Power [1999] NSWCCA 25 this Court dismissed an appeal against a sentence of 9 years with a non-parole period of 5½ years on an offender who pleaded guilty to being in possession of a prohibited import, viz a commercial quantity (1.056.5 kg) of ecstasy. The drug was contained in approximately 16,000 tablets with an estimated street value of $1.12M. The applicant had picked the drugs up from a courier who had participated in a controlled delivery and was regarded as “involved at a higher level that that of a courier and … in the position of a middleman in the enterprise”. He was not regarded as having shown remorse. Otherwise his subjective circumstances seem unremarkable. Dunford J with the assent of the other members of the Court said that the sentence was well within the range of a proper exercise of the sentencing discretion.

In R v Robertson [2000] NSWCCA 266 a Crown appeal against a sentence of 3 years periodic detention, suspended after one year, imposed on an offender who committed the offence of being knowingly concerned in the importation of ecstasy was dismissed. The respondent had pleaded guilty at committal. Although the report does not say so, reference to the Court file shows that the quantity involved was 167.1 grams. In return for $1,000 he acted as a post box and was arrested after picking up the drugs and on his way to deliver them. He then participated in a controlled delivery and made a witness statement. The respondent had been under the influence of marijuana at the time he was recruited and was also influenced to participate because of an urgent need for rent-money for himself and his sick fiancée. At the time of sentence the respondent had given up marijuana and was regarded as having made progress towards rehabilitation. Viney DCJ had regarded the case as exceptional and Grove J, with the assent of the other members of the Court, said that the sentence imposed was well within the boundaries of his discretion.

In R v Rocco [2001] NSWCCA 124 the appellant had been convicted of being knowingly concerned in the importation of a commercial quantity of ecstasy. The quantity was 4.027 kg, contained in some 70,000 tablets. This Court dismissed an appeal against a sentence of 13 years imprisonment including a non-parole period of 9 years. The appellant had been, or assisting, the consignee of some water pumps which contained the drugs and which had been sent to Australia and received by the appellant. The sentence appeal seems to have been on parity only and the report says little about the offender’s subjective circumstances.

In R v Schleunz [2001] NSWCCA 314 this Court dismissed an appeal against a sentence of 7 years with a non-parole period of 4 years on an offender to whom a parcel containing 83.2 grams of ecstasy were addressed and who had been convicted of attempting to obtain possession of the drug. Shortly after her receipt of the parcel, she departed her premises with the parcel. She was regarded as “more than a courier but something less than being the person ultimately responsible for the dissemination of the drug to the community”. She had no prior convictions and was 41 at the time of the offence.

In R v Schmakowski [2001] NSWCCA 395 this Court refused to reduce a sentence of 8 years imprisonment with a non-parole period of 4 years and 9 months on a offender who pleaded guilty to importing 410 grams of ecstasy with a wholesale value of the order of $240,000. The offender was detected at the airport and then participated in an attempted controlled delivery. The sentencing judge felt unable to conclude that the offender was only a courier and dealt with him simply on the basis that he had imported the drug. His motivation was greed. He was aged 43 with no prior convictions. There was an unspecified discount for assistance which turned out to be of no great value.

In R v Slatinec [1999] NSWCCA 2 the offender had pleaded guilty (on the first day of trial) to one count of being knowingly concerned in the importation of a commercial quantity (1214 grams) of ecstasy and a second count, under the Drugs (Misuse and Trafficking) Act, of supplying part of that ecstasy in an amount not less than a large commercial quantity. The sentencing judge took that view that, but for assistance which the offender provided, on the first count a sentence of 13 years with a non-parole period of 9 years would have been appropriate. Taking account of that assistance, the sentences imposed were, respectively, 9 years imprisonment with a non-parole period of 6 years and a fixed term of 4½ years. This Court saw no error in his Honour’s approach except that a somewhat greater discount should have been allowed for assistance. The 9 and 6 year terms were each reduced by one year on that account.

The offender was regarded as “deeply and significantly involved in the importation” and after his release on bail, in conversation with persons in the Netherlands also apparently involved, he participated in what the sentencing judge referred to as “damage control” and “harm minimisation”. He had no prior record, was not addicted to drugs and good references were tendered on his behalf. At least by the sentencing judge, the offender was regarded as contrite. The value of the drugs was between $120,000 and $200,000 (wholesale) and $380,000 (retail).

In Soonius (unreported, CCA 29 May 1998) where the quantity involved was 3.34 kgs estimated to have a wholesale value of about $400,000 and an absolute maximum retail value of $2.063M, this court reduced a sentence of 11 years imprisonment with a non-parole period of 6 years to one of 9 years imprisonment with a non-parole period of 5¼ years. The Applicant had been a courier for reward but had pleaded not guilty and was not regarded as exhibiting remorse. The sentencing judge had discounted the head sentence he would otherwise have imposed by 2 years for assistance furnished to the authorities. A feature distinguishing that case from many others was Soonius’ psychiatric condition, to which Wood J in Budiman (unreported, CCA 8 September 1998) referred as “powerful and unusual subjective circumstances”.

In R v Spillane [1999] NSWCCA 280 the offender pleaded guilty to a charge of importing a trafficable quantity, viz. 447.3 grams of ecstasy and was sentenced to imprisonment for 7 years with a non-parole period of 4 years and 8 months. The offender was dealt with as a courier, was a chronic alcoholic and well affected by alcohol at the time of his apprehension at the airport. He participated in an unsuccessful attempt to effect a controlled delivery and was allowed a discount of in excess of 3 months for assistance. He had a record for offences of dishonesty but not for drug offences. Taking the view that there was error in the sentencing process, and that “in all the circumstances” the sentence was excessive, this Court reduced the sentence to one of imprisonment for 6 years with a non-parole period of 3½ years. In arriving at that figure an unspecified discount greater than the 3 months adopted at first instance was allowed.

In R v Tan [2001] NSWCCA 219 this Court dismissed an appeal against a sentence of 7 years with a non-parole period of 4 years and 6 months on an offender who had pleaded guilty at committal to importing 736 grams of ecstasy. He was regarded as a mere courier and had been apprehended at the airport with the tablets containing the drug taped to his body. He was 41 years old, of prior good character and was regarded as contrite. His motive was to obtain money for medical attention to his mother.

In R v Chiap Nam Tan [2001] NSWCCA 438 the applicant had pleaded guilty to possession of not less than a commercial quantity of ecstasy reasonably suspected of being imported. This Court dismissed an appeal from a sentence of 15 years with a non-parole period of 9 years saying that it was not manifestly excessive. Nevertheless all members of the Court regarded the head sentence as the top of the range. At least Ireland AJ may have regarded the non-parole period as also answering that description. The applicant was regarded as having pleaded guilty at the earliest opportunity. The quantity of ecstasy was approximately 6.15 kg, contained in some 46,229 tablets with an estimated street value of about $2.5M. The applicant was described as “not a principal … but … a middle man … to arrange or organise the distribution of the Ecstasy tablets in Australia in conjunction with Mr Dang”. The applicant was aged 46 and had come to Australia some months prior to his arrest for the purposes of committing offences. His sole motive was financial gain, possibly $50,000. The sentence reflected a discount of 20% for the Applicant’s plea. “There was no demonstrated contrition on the part of the applicant other than the plea of guilty.”

In R v Tyler [2002] NSWCCA 272 the applicant had been sentenced to imprisonment for a period of 7½ years with a non-parole period of 4½ years for importing a commercial quantity of ecstasy. The amount imported was 947.6 grams contained in 13,917 tablets with an estimated street value of between about $696,000 and $974,000. She was detected at the airport and was regarded as more than a courier and having participated for money. She was aged almost 30, had a minor criminal record, pleaded guilty at the earliest possible time, and was regarded by the sentencing judge as genuinely sorry for and deeply ashamed of her behaviour, and as unlikely to offend again, but having a substance abuse problem which she was unwilling or unable to acknowledge. She gave minimal assistance to the authorities. An offence of making a false statement in relation to a passport was taken into account. Finding error in that the sentencing judge has not adverted to the applicant’s prospects of rehabilitation and a deal of evidence in that regard, this Court allowed the appeal and imposed a sentence of 6 years imprisonment, including a non-parole period of 3¼ years, her parole to be subject to a condition as to participation in a drug rehabilitation program.

104 Further, under the heading “Summary and sentencing options” Ms Burns states:

SUMMARY AND SENTENCING OPTIONS

105 It is convenient now to quote pars 7, 8 and 9 of her Honour’s remarks on sentence:

“7. The prosecution facts indicate that the offender’s role was that of a driver. There is no material suggesting that he had any involvement in the planning or the actual importation, or that he was to have been involved in what was to subsequently become of the crate. Indeed, the material indicates the contrary. It seems that at no stage was the offender actually directly in charge of the item, except after the co-offender abandoned the offender’s vehicle in an unplanned way in order to avoid possible apprehension. The offender states that he was unaware of the quantity or nature of the substance in the crate. That assertion accords with what the Court knows of the offence. He states that he was asked by a ‘friend’ to help out by going to the premises and assisting in the collection of drugs, without knowing anything more about it. He asserts that he was not to receive any reimbursement whatsoever. There is nothing in the prosecution facts to suggest otherwise, and the nature of the offender’s role as far as the prosecution evidence is concerned is quite consistent with these assertions by the offender.

8. The bottom line is that the offender, knowing that he was carrying drugs, but not knowing the quantity or nature of drugs being transported, conveyed the drugs a short distance under the direction of another person who was the organiser of that part of the operation without receiving any reimbursement for his efforts. This must place him at the very bottom of the pyramid of levels of involvement with offences of this type.

9. Nevertheless, having said that, it is almost trite to say that offences of this nature are of the most serious possible type, as indicated by the maximum available penalty, and that issues of general deterrence are extremely important.”

106 This takes me then to the first ground of appeal which is expressed as follows:

(1) Her Honour made findings of fact as to the respondent’s involvement in the offence that were not supported by any evidence.

107 This Court does not have before it a transcript of the addresses made by the Crown Prosecutor or the appellant’s counsel with regard to the question of sentence. It does, however, have the benefit of the written submissions provided to the sentencing judge by the Crown. Those written submissions contain the following:

R v Olbrich

108 Although the above two sentences do not stand well together, the inference is open that the Crown accepted that the respondent could be categorised as a courier, as that term is understood in the caselaw on the subject.

109 It is clear that in her ultimate findings of fact on sentence her Honour accepted the statements attributed to the respondent under the heading “Attitude towards the offences” in Ms Burns’ report. In addition, it is clear that she also accepted certain statements by counsel for the respondent addressed from the Bar table, as to the extent of the respondent’s involvement in the subject offences. The Crown submits that by accepting these hearsay statements, her Honour made three findings of fact which were not open to her. Those findings are:

110 The Crown submitted that these three findings led her Honour to the erroneous conclusion that the respondent must be placed at the “very bottom of the pyramid of levels of involvement with offences of this type”.

111 This Court has stressed over many years the undesirability of relevant facts for sentencing purposes being placed before the sentencing judge by medium of statements allegedly made by the offender to Probation and Parole officers, psychiatrists and the like.

112 In R v Majors (1991) 54 A Crim R 334 at 337, I said, with the concurrence of Hunt J and McInerney J:

“It is essentially for the trial judge to determine whether he or she considers it appropriate to defer the sentencing process until such time as a pre-sentence report is obtained. In this regard a number of factors would exercise the sentencing judge’s mind. One factor which may be relevant is that, in many cases, the pre-sentence report, the preparation of which invariably involves an interview with the offender, consists substantially of self-serving statements made by the offender, often involving unsubstantiated allegations. The Crown is obliged to tender the report, which obviates the need for the offender to give evidence before the sentencing judge and thereby deprives the Crown Prosecutor of the opportunity to cross-examine the offender. It also deprives the judge of the opportunity of hearing the offender give evidence of subjective matters. The sentencing judge is often then left in doubt as to how much weight may be given to all or any part of the report, particularly conclusions, suggestions and recommendations by the interviewing officer.”

113 The matter was recently considered in R v Niketic [2002] NSWCCA 425. In Niketic a somewhat similar situation arose as that in the present case. The offender elected not to enter into an ERISP or to give evidence before the sentencing judge. A pre-sentence report was tendered together with a report from a consultant forensic psychiatrist. In each of these reports the offender was reported as asserting, in effect, that he was merely a courier.

114 In those circumstances the sentencing judge held that it was impossible to determine what role the offender played, beyond the fact of being the person who imported the drugs.

115 In that respect, Wood CJ at CL said (with the concurrence of Howie J and Smart AJ):

R v Palu

R v Qutami

Olbrich v The Queen

(5) I am not persuaded in those circumstances that his Honour had any other choice than to find, as he did, that it was impossible to determine what role the applicant played beyond the fact of being the person who imported the drugs.”

116 In the instant case it was submitted that in the absence of sworn evidence from the respondent, her Honour should not have made findings in the respondent’s favour with respect to his involvement in the offence in the manner in which she did. It was submitted that her Honour should have sentenced the respondent solely on the basis of the objective facts set out in the agreed statement of facts before her Honour.

117 Counsel for the respondent submitted, on the other hand, that it was open to her Honour, in accordance with the views expressed in the joint judgment of the High Court in Olbrich v The Queen (1999) 199 CLR 270, to find that the role of the respondent was an extremely limited one and that his criminality fell, as she described, “at the very bottom of the pyramid of the levels of involvement with offences of this type”.

118 Counsel for the respondent specifically referred us to the following passage from the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in Olbrich at p 281 (omitting a citation):

We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion

119 The respondent particularly stresses the emphasised sentence above, to rely upon a submission that Olbrich does not require “sworn evidence” to establish facts if the judge is prepared to act on unsworn assertions. In this context, it should be noted that counsel for the Crown before this Court, very fairly conceded that the Crown Prosecutor did not take issue before her Honour with regard to the hearsay evidence in the Probation and Parole report, or the assertions of fact by counsel for the respondent from the Bar table.

120 Counsel for the respondent, submitted that if the matters of which complaint is now made by the Crown were matters of dispute, it was incumbent on the prosecution to make this clear to the sentencing judge. There is nothing in the material before this Court to suggest that this was done. Howie J (with the concurrence of Levine and Hidden JJ) in R v Palu [2002] NSWCCA 381 at pars 20 and 21, emphasised, with some force, the need for the parties in sentencing proceedings to identify with particularity the material from which the facts of the matter are to be gleaned by the sentencing judge. Thus areas of dispute between the parties should be carefully identified and appropriate objection taken where necessary. No such objection was taken in the instant case.

121 Further consideration of this particular ground of appeal may conveniently be deferred until after consideration of the second and third grounds.

122 I turn then to the second ground of appeal:

“Her Honour gave too great a discount for the assistance provided by the respondent.”

123 Her Honour allowed 30% discount for the assistance to the relevant authorities, detailed in the Statement of Assistance which was before her Honour, and which has been provided to this Court. It was submitted by the Crown that this was too high, having regard to the matters referred to therein. It was said they were solely of intelligence value and indeed some of the matters referred to tended to negate the claims made by the respondent’s counsel of limited involvement by the respondent in the offence. It was submitted that a discount of 30% should be reserved for those who provide real assistance such as giving evidence against others or assisting in a controlled delivery at some personal risk.

124 The Statement of Assistance makes it clear that the information provided by the respondent to the authorities could only be used for intelligence gathering purposes in the absence of an undertaking by the respondent to give evidence against any of the persons whom he named. The respondent firmly declined to give such an undertaking.

125 In R v Chu (unreported, 16 October 1998, CCA) at par 3, Spigelman CJ said that the discount customarily given in New South Wales for significant assistance ranges from 20% to 50%.

126 However, as Abadee J said in R v Barientos [1999] NSWCCA 1, after referring to the Chief Justice’s remarks in Chu at 47:

“That said the law does not mandate the identification of a precise discrete quantifiable discount for assistance or that the assistance falls within the range. The matter of that discount or its quantification will depend upon a number of factors and the facts of the particular case under consideration. I do not see the authorities suggesting that once any assistance is found then the allowance for such must reflect a range. The worth of the assistance may take it below the range. Whether it does is a matter of fact to be evaluated in accordance with the proved circumstances of the case.”

127 Earlier, in R v Gallagher (1991) 23 NSWLR 220 at 232, Gleeson CJ said, with regard to the question of the appropriate discount for assistance to the authorities:

“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.”

128 We were reminded by the respondent that in R v Olbrich (2000) 117 A Crim R 326 this Court suggested (at par 22) a discount in the range of 25% to 33.33% was appropriate for the assistance which was the subject of consideration in that case. The respondent in this Court submitted that the assistance which was rendered in Olbrich was of no greater value than that provided by the present respondent. It is not necessary for present purposes to record the detail of the assistance rendered in Olbrich. It does, however, provide a useful comparison.

129 In my respectful view the 30% discount allowed in the instant case for the assistance which the respondent gave to the authorities was substantially more than that which the assistance justified. This aspect of the appeal will require further consideration at a later stage in the judgment.

130 The third ground of appeal is in the following terms:

131 It was submitted that her Honour failed to consider whether the respondent’s prior offending, when taken into account with the instant offences, manifested “a continuing attitude of disobedience of the law”, so that “retribution, deterrence and the protection of society may all indicate that a more severe penalty is warranted”: see Veen v The Queen [No 2] (1988) 164 CLR 465 at 477.

132 There is, of course, ample authority to the effect that an aggravating factor in the commission of an offence is that at the time of the commission of the offence, the offender was on conditional liberty such as parole. Thus in R v Moffitt (1990) 20 NSWLR 114 at 128, Badgery-Parker J said that when a further offence has been committed while on parole, the offender should

“... not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in thus abusing his parole.”

133 There is no doubt that her Honour was alive to this factor. Indeed she said:

“The offender was serving the parole period of that [periodic detention] order at the time that the offence occurred and that, of course, is an aggravating feature.”

134 Counsel for the respondent has sought to obtain assistance from the fact that the offence to which the parole order related was an offence of an entirely different character to the subject offences.

135 Further reference to this aspect of the appeal may conveniently be deferred until after consideration of the final ground of appeal which is the overall submission that the sentence was manifestly inadequate.

Was her Honour’s sentence manifestly inadequate?

136 Annexed to the Crown submissions is a schedule of sentences imposed (after review by this Court) for offences under s 233B(1) of the Customs Act 1901, involving MDMA and other “mid range” drugs.

137 In reliance upon these statistics and some detailed reference to particular cases, said to be of a comparative nature, the Crown submitted that irrespective of the specific errors which it was submitted the sentencing judge made, the instant sentence was manifestly inadequate. It was submitted that her Honour’s sentence provided little in the way of general deterrence and there was nothing in the respondent’s subjective factors which could have significantly affected the appropriate range of permissible sentences.

138 One observation should immediately be made, namely, that the subject offences attracted the provisions of s 237 of the Customs Act 1901 which relevantly provides that any attempt to commit an offence against the Act shall be an offence against the Act and punishable as if the offence had been committed.

139 It is important to appreciate that where an attempt to commit a substantive offence is involved, it is relevant to consider, in evaluating the seriousness of the offence, inter alia, that the offence was not completed; the chances of its success; the seriousness of the attempt; whether the attempt was sophisticated or naive; the competence of the attempt and all the other surrounding circumstances: see R v Taouk(1992) 65 A Crim R 387 at 390.

140 Prior appeals to this Court which involved the offence of attempting to possess prohibited imports are, firstly, R v Schluenz [2001] NSWCCA 314. This case involved a plea of not guilty to a charge of attempting to possess 0.083k of methylamphetamine (“more than a courier but something less than being the person ultimately responsible for the dissemination of the drug”). A severity appeal was dismissed in relation to a head sentence of seven years with a non-parole period of five years.

141 Secondly, there is R v Pejovski [2001] NSWCCA 182, which involved an attempt to possess 0.214k of MDMA with a plea of not guilty. The appellant received a package containing the drugs from Belgium and retained it for collection by others. He played an “important” role in the importation. A severity appeal was allowed and a head sentence of six years was imposed with a non-parole period of three and a half years.

142 Thirdly, there is R v Hauser (unreported, 11 December 1997, CCA) which involved a plea of guilty to an attempt to possess 0.601k of MDMA. The appeal was allowed and reduced to a head sentence of four and half years with a non-parole period of two and a half years. The appellant was described as a “junior partner” more than a courier. The sentence was reduced to maintain parity with a co-offender.

143 Fourthly, there is R v McGregor (2000) 120 A Crim R 24 which involved a plea of guilty to attempting to possess 0.657k of MDMA. A severity appeal was allowed and the sentence was reduced to a head sentence of eight years with a non-parole period of five years to maintain parity with a co-offender. The offender was described as a “collector” with culpability equal to that of a courier.

144 Finally, there is R v Guiu [2002] NSWCCA 181, a plea of not guilty to a charge of attempting to possess 1.102k of MDMA. A severity appeal was allowed. The head sentence was reduced to six years with a non-parole period of three years and nine months. There was significant co-operation with the authorities and the offender was a Spanish national separated by imprisonment from her family.

145 In all the above cases the offenders were persons of prior good character with no relevant prior convictions.

146 It was important in the instant case for her Honour to take into account the two matters on the s 16BA Schedule although her Honour gave no indication as to the importance which she attached to those offences.

147 It is well established that a realistic allowance must be made in the sentence on the primary charge to take into account the degree of seriousness of schedule offences. Although it may be said that the two subject schedule offences are part of the same criminal episode involving the primary offence, nevertheless, they are both serious matters and involve mid range drugs not less than the trafficable quantity applicable to each drug.

148 Her Honour had before her evidence that since his incarceration the respondent has been regularly attending educational courses and undertaking employment at the Remand and Reception Centre as a sewing machinist. Thus there was clearly evidence of a determined attempt at rehabilitation.

149 Insofar as the objective facts are concerned, I have concluded that the sentence proceedings were conducted in such a manner that it was left open to her Honour by the parties to make certain of the favourable findings of fact which she did. Nevertheless, I do not respectfully agree that it was open to her Honour to conclude, even on that basis, that there was nothing in the prosecution facts inconsistent with the exculpatory assertions contained in the Probation and Parole report and the statements from the Bar table.

150 Her Honour appears to have been particularly impressed by the assertion that the respondent was unaware of the quantity or nature of the substance in the crate. By the very nature of things, a courier very often is unaware of the quantity and value of the drugs which he or she is conveying. It was quite inappropriate, in my respectful view to take such ignorance into account in the instant case as a mitigating or exculpatory factor.

151 In Wong and Leung v The Queen, 76 ALJR 79 at 92, Gaudron, Gummow and Hayne JJ in their joint judgment said, when discussing whether the weight of the subject drugs was generally the chief factor to be taken into account in fixing a sentence:

“It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.”

152 In the instant case the only information which the sentencing judge had before her as to “the kind and size of reward given or promised to the offender”, was the statement from the Bar table that he was to receive no reimbursement whatsoever. The Crown could scarcely contradict this assertion because the respondent had declined to enter into an ERISP and to give evidence.

153 When one balances the subjective facts with the objective facts disclosed in the agreed Statement of Facts as appropriately mitigated by the hearsay material, the conclusion is irresistible, in my respectful view, that the sentence imposed by her Honour was outside the discretionary range available to her. I specifically take into account in this regard the comparative cases. I also take into account the schedule matters.

154 The resolution of this appeal has created difficulties because of the way in which the factual material was placed before her Honour.

155 However, as pointed out by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 340:

R v Valentini and Garvie

R v Davey

156 That being so it is necessary for this Court to intervene and impose a fresh sentence. This involves detailed consideration of the elements outlined in s 16A(2) of the Crimes Act 1914. Specific matters which require consideration in the instant case are:

157 As to par (a), her Honour categorised the respondent as a “driver”. I assume that her Honour meant by this that he was a mere courier as described in the caselaw. The term “mere courier” is generally used in the cases to distinguish a particular offender from others higher in the hierarchy, such as a collector or principal.

158 Nevertheless, couriers play a significant role; if it were not for the couriers the chain of distribution of a prohibited drug within Australia would be broken or disrupted.

159 When considering in a little more detail the respondent’s role in the distribution of the prohibited drugs in the instant case, it is important to consider the surrounding circumstances. It seems obvious to me that the movements of the various motor vehicles as described earlier in this judgment constituted a counter surveillance operation by a number of persons including the respondent. The fact that the crate was jettisoned by the respondent is, of course, clearly indicative of the fact that the surveillance was detected.

160 Paras (a), (b), (g), (h) and (n) have already been referred to. As to (n), additional information was put before this Court confirming earlier evidence of good prospects of rehabilitation, together with evidence that employment will be available to the respondent upon release.

161 I have, of course, given consideration to the other paragraphs referred to in subs (2).

162 The element of deterrence is an extremely important factor in sentencing for serious drug offences. The seriousness of the primary offence in this appeal is reflected in the maximum life sentence which the offence carries.

163 It is, of course, necessary when re-sentencing to give full weight to the well-established principles relating to Crown appeals including, of course, the question of double jeopardy.

164 Taking into account the schedule matters, I am of the view that the question of re-sentence should be approached in the following manner. I would start with a head sentence of nine years after allowing for the plea of guilty and reduce that figure to six years to take account of the fact that the State of New South Wales does not have remission laws. I agree with Hulme J that although s 16G of the Crimes Act 1914 has been repealed as from 16 January 2003, the respondent should nevertheless be given the benefit of a deduction of one third from that figure: see Radenkovic v The Queen (1990) 170 CLR 623 at 632. I would allow a further discount of one year to take account of the assistance to the authorities. Thus, I would impose a head sentence of five years.

165 With regard to the non-parole period, I consider that there are special circumstances to vary the customary ratio which ranges from 60% to 66.33% in Commonwealth matters. Specifically, I would refer in this regard to the good chances of rehabilitation which the respondent has demonstrated.

166 Thus I would propose the following orders:

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Last Modified: 02/27/2003

Citations

R v Schofield [2003] NSWCCA 3

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30

R v Elder [2025] NSWDC 101

R v Cowan [2025] NSWDC 100

R v Elliott [2025] NSWDC 102

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60

Statutory Material Cited

3

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211

R v Olbrich [1999] HCA 54

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CITATION:	R v Schofield [2003] NSWCCA 3
HEARING DATE(S):	22 November 2002
JUDGMENT DATE:	6 February 2003
JUDGMENT OF:	Heydon JA at 1; Hulme J at 2; Carruthers AJ at 71
DECISION:	Appeal allowed; sentence imposed by Murrell DCJ quashed; By majority (Heydon JA, Carruthers AJ; Hulme J dissenting); in lieu thereof respondent sentenced to imprisonment for five years to date from 20 September 2001 to 19 September 2006; non-parole period of three years to commence on 20 September 2001 and expire on 19 September 2004; the Court directs the respondent's solicitor to explain the fresh sentence to the respondent in accordance with s16F of the Crimes Act 1914.
CATCHWORDS:	Sentencing - Crown appeal against alleged manifest inadequacy of sentence - attempted possession of prohibited imports - not less than a commercial quantity of Ecstasy - two further offences on a Schedule - respondent elects not to give evidence at sentence hearing - whether and to what extent judge entitled to act upon hearsay material - probation and parole report and statements made from the bar table - appropriate allowance for assistance to the authorities considered.
LEGISLATION CITED:	Crimes Act 1914, s 16A(2), s 16G, s 20(1)(b) Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act, 2002 Customs Act 1901, s 233B (1), 233B(1)(c), 235(2)
CASES CITED:	Amran Efendi v R [2001] NSWCCA 39 Bradley (1997) 137 FLR 314 Dinsdale v The Queen (2000) 202 CLR 321 Doan (unreported, CCA 27/9/96) Dodd (1991) 57 A Crim R 349 Fabian (1992) 64 A Crim R 365 Klein (2000) A Crim R 90 Le Cerf (1976) 8 ALR 349 Malvaso v R (1989) 168 CLR 227 Muanchukingkan (1990) 52 A Crim R 354 Perrier & Richardson (1990) 59 A Crim R 164 Postiglione (1991) 57 A Crim R 301 Radenkovic v The Queen (1990) 170 CLR 623 R v Allpass (1993) 72 A Crim R 561 R v Barientos [1999] NSWCCA 1 R v Baugh [1999] NSWCCA 131 R v Behar (unreported, CCA, 14/10/98) R v Benais [1999] NSWCCA 236 R v Bigic [2000] NSWCCA 9 R v Bimahendali (unreported, CCA, 15/12/99) R v Blakeman [1999] NSWCCA [1999] 415 R v Bourel (unreported NSWCCA 11/12/98) R v Bowers (1997) 97 A Crim R 461 R v Budiman (1998) 102 A Crim R 411 R v Bushell (unreported, CCA, (unreported, CCA, 7/8/98) R v Camilleri (unreported, CCA, 8/2/90) R v Camus [1999] NSWCCA 425 R v Capper [2000] NSWCCA 63 R v Carey (1997) 97 A Crim R 552 R v Chu (unreported, 16/10/98 CCA) R v Dinic (1997) 149 ALR 488 R v Dizel (unreported, CCA, 23/8/96) R v Dollwett (unreported, CCA, 6/7/93) R v Durant [2002] NSWCCA 295 R v El Karhani (1990) 21 NSWLR 370 R v Gallagher (1991) 23 NSWLR 220 R v Guinan [2001] NSWCCA 55 R v Guiu [2002] NSWCCA 181 R v Hauser (unreported, 11/12/97, CCA) R v Jermyn (1985) 2 NSWLR 195 R v Jurisic (1998) 45 NSWLR 209 R v Kalache [2000] NSWCCA 2 R v Laurentiu & Becheru (1992) 63 A Crim R 411 R v Lim & Yeung [2002] NSWCCA 293 R v Malcolm McDonald (unreported, CCA, 12/10/1998) R v McGregor (2000) 120 A Crim R 24 R v Majors (1991) 54 A Crim R 334 R v Meloh [2001] NSWCCA 211 R v Moffitt (1990) 20 NSWLR 114 R v Niketic [2002] NSWCCA 425 R v Olbrich (2000) 117 A Crim R 326 R v Olbrich (1999) 199 CLR 270 R v Palu [2002] NSWCCA 381 R v Pejovski [2001] NSWCCA 182 R v Power [1999] NSWCCA 25 R v Robertson [2000] NSWCCA 266 R v Rose (unreported, CCA, 23/5/96) R v Rocco [2001] NSWCCA 124 R v Schluenz [2002] NSWCCA 314 R v Schmakowski [2001] NSWCCA 395 R v Simpson (2001) 53 NSWLR 704 R v Slatinee [1999] NSWCCA 2 R v Soonius (unreported, CCA, 29/5/98) R v Spillane [1999] NSWCCA 280 R v Tan [2001] NSWCCA 219 R v Chiap Nam Tan [2001] NSWCCA 438 R v Taouk (1992) 65 A Crim R 387 R v Tony Giam (No 2) [1999] NSWCCA 378 R v Tyler [2002] NSWCCA 272 R v Van Den Akker [1999] NSWCCA 426 R v W [2002] NSWCCA 192 R v Whyte [2002] NSWCCA 343 R v Wong & Leung (1999) 48 NSWLR 340 R v Woolery [2002] NSWCCA 299 R v X & R v Y [2002] NSWCCA 40 Veen v The Queen [No 2] (1988) 164 CLR 465 Wong v R (2001) 207 CLR 584 Wong & Leung v The Queen 76 ALJR 79
PARTIES :	Regina v Vichai Schofield
FILE NUMBER(S):	CCA 60435/02
COUNSEL:	Crown - M. Cinque Respondent - P. Hamill
SOLICITORS:	Crown - Commonwealth Director of Public Prosecutions Respondent - Robertson, Saxton, Primrose Dunn

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0049
LOWER COURT JUDICIAL OFFICER :	Her Honour Judge Murrell SC