R v Stanbouli - [2003] NSWCCA 355

Reported Decision:
141 A Crim R 531

New South Wales

Court of Criminal Appeal

CITATION: R v STANBOULI [2003] NSWCCA 355

HEARING DATE(S): 22 May 2003

JUDGMENT DATE:
4 December 2003

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 6; Carruthers AJ at 171

DECISION: Crown appeal allowed; Sentences imposed by Shadbolt DCJ quashed; In lieu thereof the Respondent be sentenced to imprisonment for a term of nineteen years to date from 27 July 2001 and to expire on 26 July 2020 with a non-parole period of twelve years to date from 27 July 2001 and to expire on 26 July 2013; Direct the Solicitor for the Respondent to explain to the Respondent, as required by s16F of the Crimes Act, the sentence and the purpose and consequences of the non-parole period.

PARTIES :
Regina
Simon Stanbouli

FILE NUMBER(S): CCA 60509/02

COUNSEL: Crown: RF Sutherland SC
Respondent: J Dailly SC

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
Respondent: Walter Madden Jenkins

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : Shadbolt DCJ

- 52 -

60509/02

SPIGELMAN CJ
HULME J
CARRUTHERS AJ

R v Simon STANBOULI

Judgment

1 SPIGELMAN CJ: I have read the judgments of Hulme J and Carruthers AJ in draft. Subject to one matter, I agree with the reasons of Hulme J and the head sentence he proposes.

2 The matter on which I have reservations is his Honour’s reference to life imprisonment being “the norm for those who provide important assistance in the importation of quantities of the order of that here.” [113 below].

3 I would myself reserve the term of life imprisonment as “the norm” for persons at the top of the importation hierarchy, rather than those who “provide important assistance”. Nevertheless, I agree that an appropriate starting point, in all of the circumstances of the present case, is a head sentence of 27 years after a s16G adjustment.

4 By reason of the factors referred to by Carruthers AJ, I agree that the non-parole period he proposes is more appropriate than that proposed by Hulme J. I note that the degree of harshness involved in serving a sentence in what used to be called “protective custody” may have altered by reason of change in Corrective Services practices. However, that is not a matter on which this Court was addressed.

5 Accordingly, I agree with the orders proposed by Carruthers AJ.

6 HULME J: The Respondent to this Crown appeal pleaded guilty to a charge that between about 19 July 1998 and about 9 April 2000 he conspired with a number of other persons, some named and some unnamed, to import into Australia not less than a commercial quantity of heroin.

7 On 1 November 2002, Judge Shadbolt sentenced the Respondent to imprisonment for a period of 13 years and 6 months, including a non-parole period of 10 years, both periods commencing on 27 July 2001, the date of the Respondent’s arrest. The Crown has appealed, contending that the sentence is manifestly inadequate.

8 At all relevant times the Respondent was employed in a licensed Customs Broker and Freight Forwarding Agency. In early 1998 he was approached by an employee or ex-employee of that agency, a Mr Argyris, told of a proposal to import heroin and offered money for monitoring the shipments and perhaps – I refer to the topic at greater length below – for providing other assistance. The Respondent agreed to the proposal and concedes that he then gave some advice as to the procedures to be followed. After the first consignment arrived, the Respondent was paid, according to him, $5,500.

9 Following the first shipment there were others – 46 in all - although it would seem that some of these were “dummy runs”. Judge Shadbolt found that it appeared that at least 23 of the shipments contained heroin. A number of different names were used as the consignees. These, and the dates and number of consignments to each, were:-

Name	Period	Number
Comtech Computers	19/7/1998 to 7/6/1999	About 23
Hybrid Computers	8/11/1998 to 23/12/99	13
Advanced Peripheral Computers	About June 1999	About 5
Verticon Software	23 September 1999	1
Comworld Computers	29/2/2000 to 9/4/2000	4

10 The total weight of pure heroin imported in these shipments was estimated by the police at approximately 375 kgs. At one stage Judge Shadbolt referred to there having been several hundred kilograms but later, after observing that the quantity could only be an estimate, his Honour found that the amount was not less than “massive”.

11 The Respondent said he was not paid for shipments which were dummy runs but that he received about $200,000 in total for shipments which did contain heroin. Evidence before Judge Shadbolt indicated that the expenditure of the Respondent and his wife over approximately the period of the conspiracy greatly exceeded their legitimate income.

12 The Respondent’s position enabled him to oversee the receipt, clearance, and facilitate delivery of the shipments, to know of any interest by the Customs’ authorities in any particular shipment and to make suggestions as to how danger of detection to co-offenders could be avoided. His ability in this regard was particularly useful in the case of the Verticon shipment. The Respondent became aware that that consignment was selected by those authorities for scrutiny and informed Mr Argyris of that fact. When the Respondent was informed that delivery was nevertheless required, he informed Customs that the shipment had not in fact arrived, thus enabling it to be picked up without Customs’ scrutiny.

13 The activities of other conspirators became known to police progressively over time. After the arrest of some on or about 9 April 2000, the Respondent was interviewed by police and the New South Wales Crime Commission. He provided an induced statement in which he claimed ignorance of the conspiracy but some knowledge of the importations, saying that he had been approached by Mr Argyris in January 2000 about the importation of computer parts by a company Comworld Computers. The Respondent said that there had been 4 importations since, referred to conversations with Mr Agryris relating to each and said that all 4 had been picked up by the one person, identified by other evidence as Mr Bourchas. The Respondent said that he had been paid after the third importation, apparently on an ex gratia basis, a sum of $10,000 and had stupidly accepted it. Later he gave another induced statement along similar lines and on 27 April 2001 gave untruthful evidence to similar effect at the committal proceedings against Argyris and Bourchas. The Respondent showed the police, and handed over, the $10,000.

14 After their committal Messrs Argyris and Bourchas came to an arrangement with the Crown. They pleaded guilty to limited charges and made offers to the Crown to give evidence against the Respondent. On 27 July 2001 he was arrested and, as has been said, in due course he also pleaded guilty.

15 His Honour observed that the Respondent’s crime could “only be described as one of that band of most serious offences of its type” and that the Respondent’s plea was not at the earliest opportunity or “having regard to his letter to the Attorney General, motivated by contrition”. His Honour went on, “Nor does it display a willingness to co-operate with the criminal law of the Commonwealth (since) he was still prepared to use six days of court time pursuing really quite spurious matters of mitigation”. Nor, in his Honour’s view, was the willingness to implicate Messrs Argyris and Bourchas indicative of contrition but rather out of a “healthy sense of self preservation”.

16 His Honour however also observed that because the Respondent’s statements, although containing a mixture of lies and truths, had caused Messrs Argyris and Bourchas to plead guilty and so irritated them that they then implicated the Respondent, those statements had served the interests of justice and should be given appropriate recognition. His Honour allowed the Respondent a discount from the sentence he would otherwise have imposed, of 25%, comprising 15% for his plea and 10% for his assistance. Thus it was that, starting with an initial period of 27 years, reducing that by 9 years to take account of s16G of the Crimes Act (C’th), and by a further 25% his Honour arrived at the 13½ years head sentence that he did.

17 The Respondent acknowledged that his motivation for participating was financial gain, and that he became greedy. That concession was clearly justified because the joint income of his wife and himself, while not large was, by community standards, quite reasonable. In the year to 30 June 1999, their combined income was of the order of $60,000 and although the Respondent would seem to have had debts of the order of $30,000 at the time his offending commenced, a great deal of what the Respondent received for his participation was spent on extravagances. Other subjective matters which it is necessary to record are that the Respondent was, at the time of sentence, 30 years old, married with no children, that he had had an excellent and stable work record and, until the commencement of the conspiracy, he was regarded as having an excellent character. Judge Shadbolt recorded that since the Respondent’s incarceration he had been a model prisoner and had used his time as well as circumstances permitted. His Honour found that the Respondent had good prospects of rehabilitation, and that he would probably spend the whole of his sentence in protective custody.

18 The appeal to this Court raised a number of issues. The Crown contended that, particularly given the duration of the offending, the quantity involved, and the Respondent’s role, the starting point of 27 years and the finishing point of the sentence imposed were manifestly inadequate. The Crown did not suggest any other error along the way.

19 On the other hand, counsel for the Respondent both challenged a number of the findings and conclusions at which Shadbolt DCJ had arrived and contended that there were further matters arguing against any increase in the sentence imposed. Included in the matters challenged were:-

(i) His Honour’s findings as to the importance of the Respondent’s role;

(ii) The significance his Honour seems to have attached to the Respondent’s breach of a position of trust;

(iii) His Honour’s findings as to the credibility of the Respondent;

(iv) His Honour’s failure to find that the Respondent was remorseful;

(v) His Honour’s findings as to the extent and value of assistance given and the extent of the discount his Honour made in that regard; and

(vi) The extent of the discount his Honour made for the Respondent’s plea.

20 Reliance was also placed on:-

(vii) Evidence that the Respondent had sought to quit the scheme;

(viii) Evidence that the Respondent had suffered both the loss of his house in order to comply with a Proceeds Assessment Order, and also the loss of his occupation, and

(ix) The need, if the quantity of the drugs involved was to be held against the Respondent, that that quantity be established beyond reasonable doubt.

21 Counsel for the Respondent also argued that although co-offenders also sentenced had not been charged with the same offence as the Respondent and thus the situation was not one of strict parity, there should be some balance between the sentence imposed on the Respondent and the sentences imposed on those co-offenders. This and other factors, so it was submitted, argued for a non-parole period of 60% of the head sentence rather than one equal to 74% of it, as had been imposed.

22 Because they are liable to affect any judgment as to the range within which any sentence imposed on the Applicant might legitimately fall, it is appropriate to deal with most of these matters before turning to the substance of the Crown appeal. Although it is not possible to completely compartmentalise these matters, so far as practical I shall deal with them seriatim.

23 Judge Shadbolt concluded that, although the Respondent was not involved in other aspects of the various transactions, he brought to the conspiracy knowledge and skill that no other member of the conspiracy could provide, a system of importation safe from discovery - one of the factors which, in his Honour’s view, was required for successful heroin importation. His Honour went on:-

“As a technocrat, he dictated the means and requirements to effect the importation of heroin to Polyzoidis and Argyris at their first meeting. It appears that, if it were to be done, it was to be done properly and, in this regard, at his direction. …

He must, therefore, be positioned in relation to this conspiracy not by his capacity to give orders nor his position in some assumed chain of command … but by his function. In this regard, he must be seen as one utterly indispensable to an importation of some hundreds of kilograms of heroin.”

24 It was submitted that the extent of successful importations which have occurred in other circumstances without, it would seem, someone fulfilling a role such as that of the Respondent in this case demonstrates the error in his Honour’s statement. Indeed his Honour did, it seems to me, overstate the situation. Insofar as the Respondent became aware of the consignments as they arrived and provided information of that fact he did no more than the normal duties of a Shipping or Customs Agent. His importance to the ongoing activities of the operation was in his ability and willingness to warn of any interest in a consignment taken by the Customs authorities and, as occurred in the case of the Verticon shipment, to mislead those authorities into believing that one consignment in which they had indicated interest had not arrived. It may be inferred also that his initial advice – the Respondent agrees he gave some - was also likely to have been of use.

25 True it is that it would seem that it was only in the case of one consignment that warning or activity of misleading the Customs authorities was required. However the fact that the Respondent was in a position to do these things when necessary must have provided great comfort to the principal organisers and, as an incident of risks/benefit analysis, was calculated to encourage them to pursue the operation.

26 In the reference to “dictated”, the statements in the first of the paragraphs just quoted also seem to me to somewhat overstate the situation, even if the reference to “technocrat” may be regarded as some qualification in that regard. There was evidence from Mr Argyris that he had been asked by a Mr Polyzoidis if he knew someone who could assist with importation of steroids and then arranged a meeting between Mr Polyzoidis and the Respondent. There was no challenge to this latter evidence and from it one may infer that the Respondent was regarded as being able to assist in a way Mr Argyris could not.

27 Mr Argyris said that at that meeting following a question by Mr Polyzoidis as to the best way to import “gear”, the following conversation had occurred:

Respondent “It’s hard but it can be done”

Polyzoidis “What do you mean by that?”

Respondent “You first of all need a registered company, a postal address, phone number, PO Box, some sort of contact persons and a number for them. …”

“Leave the company name to me and you have to get the company details being an address, contact name, PO Box and a contact number or pager numbers. Pager numbers look like office numbers so either number you get will be OK. Make sure the address is an industrial address because if it is residential customs will pick it up.”

28 According to Mr Argyris at a later meeting the Respondent stipulated, and in some respects forcefully that, inter alia, the packages had to be given to specified agents in Hong Kong on Friday or early Saturday, the contents had to be, or appear to be, “VGA cards” and nothing else, the heroin had to be inside individual VGA boxes inside the cartons and those sending them must make sure the consignments did not individually weigh more than 15 kgs and were tied with string. According to Mr Argyris, the Respondent said “make sure the first two shipments are dummy runs and they actually contain VGA cards because when a company first starts it is more than likely that it will get checked.”

29 Some of this detail was disputed by the Respondent but Judge Shadbolt’s rejection of the Respondent as a credible witness means that this Court cannot prefer the Respondent’s evidence, at least where it is uncorroborated, on these matters in preference to other evidence which was before his Honour. On the other hand, when rejecting the Respondent’s evidence, his Honour did say, “This is not to mean that the contrapositive is proved and that the conversations the Crown alleges happened but the prisoner has failed to persuade me that they did not.” In the absence of any further finding in this regard – and there was none – it cannot be said that his Honour accepted Mr Argyris’ evidence either.

30 The Respondent acknowledged that in the course of his initial contact or contacts with Mr Polyzoidis he did suggest a company name. He agreed that he had suggested the shipping agent in Hong Kong (with whom his employer had a business relationship), that the goods commonly arrived on a Sunday, that that was no coincidence, and that his attendance at work at weekends was sometimes because of the arrival of one of the consignments of heroin. He denied that he had given instructions, inter alia, that the weight of the parcels should be limited to 15 kilograms. It was pointed out that, incontrovertibly, a number of consignments, at least 12, well exceeded this figure and that, at least in the case of Comworld, there had not been an initial 2 dummy runs.

31 In any event, common sense indicates that the Respondent would have been at least asked for his advice and, having decided to participate, would have volunteered such advice as to importing as seemed in the interests of the venture, and himself financially. He was undoubtedly a willing, useful and important assistant in each of the importations and someone who, in his Honour’s words, “brought to the conspiracy knowledge and skill that no other member of the conspiracy could provide”. I am content to proceed on this basis.

32 His Honour referred to the Respondent as having been “in a position of trust and one enjoying the respect of his employers who was at the same time providing invaluable assistance to his fellow conspirators” and, when considering the issue of parity with other offenders, observed:-

“However, the Crown has submitted that the prisoner lies somewhere below Chen and He and, because of his breach of trust, somewhere above Argyris and Bourchas. In general terms I agree with this.”

“I have also had regard to s16A (of the Crimes Act 1914 (C’th)) and in particular s16A(1) and those sections of s16A(2) which are applicable. I regard the nature of the offence and the breach of trust that it involved as most serious”

33 There can be no doubt that in his criminality the Respondent did breach the trust which his employer had placed in him and, in his activities relating to the Verticon shipment, took advantage of information which had been provided by the Customs authorities as to their interest in that shipment and then, one may infer, misled them by saying the consignment had not arrived. But it does not seem to me that any breach of trust which is involved in these events adds to the criminality in this case.

34 The cases where, traditionally, breach of trust has been regarded as exacerbating criminality are where it is the victim of the offence who has imposed that trust – an employer defrauded by his employee, a solicitor who appropriates trust funds to his own use - or where the criminality involves a breach of that which the offender was engaged or undertook to do, e.g. a teacher or baby-sitter who indecently deals with the subject of his or her charge. Another example is afforded by the case of R v McLean (unreported, CCA, 31 March 1989) where a customs officer employed in the investigations section of the department had conspired to import heroin and cannabis. The offence there was in direct contravention of what the offender had been employed to do.

35 Here, although in the case of the Verticon shipment the Respondent’s actions amounted to an abuse of the trust which the Customs authorities must have imposed in the Respondent’s employer, and perhaps vicariously in the Respondent, the trust breached by the Respondent was, at least largely, that given by his employer, someone not a victim (except in common with all other members of the community). His offending was not in direct contravention of what the Respondent was engaged to do (even though it must have breached at least an implied but subsidiary term of the Respondent’s employment). These facts seem to me to differentiate this case from those where a breach of trust can fairly be said to aggravate the criminality and, after all, it is that for which the Respondent falls to be punished. In the emphasis that his Honour placed on the Respondent having breached his trust, it seems to me that his Honour again erred.

36 His Honour’s findings included the following:-

“I have seen the offender examined and cross-examined and re-examined. He is not a person in whom I would repose trust. It became clear from cross-examination that he sought to minimise his role and to enlarge the role of his co-conspirators. But this is what he has done throughout. He minimised his role to police, to the Crime Commission, to the Magistrate who presided at the committal proceedings of Argyris and Bourchas. He has told lies to everybody to effect that end and even in a letter to the court (exhibit 11), where he describes twenty months of importation of vast amounts of heroin as a “few moments of selfish pleasure”, he has continued that course. I have formed a view that when he said in cross-examination [page 88] that he had lied in order to protect himself, that was the only time that I could be satisfied that he was telling the truth on any matter which could not otherwise be verified. This court would not accept the prisoner on matters that could not be corroborated and, as the onus lies upon him to prove to my satisfaction on the balance of probabilities the mitigating factors he asserts, and as Argyris remained resolute in the evidence he gave of those conversations, then the prisoner fails. This is not to mean that the contrapositive is proved and that the conversations the Crown alleges happened but the prisoner has failed to persuade me that they did not.”

37 The opening words of this passage indicate that to some degree his Honour’s conclusions depended upon the impression that the Respondent had created in the witness box. On that account alone he faces a very difficult task in seeking to persuade this Court, which did not see him give evidence, that the sentencing judge’s assessment of his credibility generally was wrong. That task becomes impossible once one recognises the magnitude of the Respondent’s previous untruthfulness. It included, as was conceded by the Respondent, lying in statements made to the police on 12 and 27 April 2000, both of which commenced with the words:-

“This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in Court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.”

38 The lies extended to representing that the conversations leading to the importations occurred in January 2000 and that 4 importations (only) were involved. The untruthfulness extended to perjuring himself when he gave evidence in committal proceedings against Mr Argyris.

39 As I have indicated above, His Honour did not regard the Respondent’s plea or his willingness to implicate Messrs Argyris and Bourchas as motivated by contrition. Nor otherwise did his Honour find that the Respondent was remorseful, albeit he did find that the Respondent had good prospects of rehabilitation, a matter to which remorse is generally regarded as very relevant.

40 Remorse is a topic going to mitigation and the onus of proving it was on the Respondent. His Honour’s conclusions as to the Respondent’s credibility obviously made that onus one difficult to discharge.

41 Apart from the Respondent’s own evidence in this regard, reliance was also placed on a number of actions by the Respondent which were said to demonstrate the presence of remorse. These included his statements to the police in and following April 2000 and him providing to the police the $10,000 he had then been recently paid. They included the Respondent making contact with the police on 25 July 2001, 2 days before he was arrested, and saying that he wished to provide them with further information.

42 Another matter relied on were indications, given in October 2001, of willingness on the part of the Respondent to further assist the authorities. A meeting was held between representatives of the DPP and the Respondent. However, a letter of 20 December 2001, accepted in a letter of 7 January 2002 from the Respondent’s solicitors as accurate, notes that in that meeting there was no discussion of the possibility of a plea of guilty being entered and that the representatives of the Respondent had indicated that the Respondent “may be prepared to further assist authorities” and sought to know whether the authorities were interested in such further assistance. (my emphasis) (Though not relevant to the current topic, that offer was rejected.)

43 The Respondent did plead guilty at his committal proceedings. It is said that his intention to do so was conveyed in a letter from his solicitors of 17 December 2001. That letter does not seem to have been tendered before Judge Shadbolt but there seems to be no dispute about it and I am prepared to assume its existence and its contents were as submitted.

44 Reliance was also placed on the fact that the Respondent has not adopted a claim by Mr Argyris that his initial agreement was for the importation of steroids, generally accepted as a less harmful drug than heroin and that a number of reports – from the prison chaplain, from a psychiatrist and a Probation and Parole Report – tend to confirm that he is genuinely sorry and truthful about his involvement.

45 Unfortunately for the Respondent, all of these matters are explicable on the basis that they occurred out of what his Honour referred to as a “healthy sense of self preservation” or depend on the credibility of the Respondent. They provide no basis upon which this Court would be justified in concluding that his Honour erred in failing to find that the Respondent was remorseful.

46 It was submitted that the discount his Honour gave the Respondent for assistance to the authorities or willingness to assist the cause of justice was inadequate. There were 2 aspects of the complaint in this regard. The first consisted of the Respondent’s implication of Messrs Argyris and Bourchas in the statements he made to the police and in the evidence he gave against them at the committal proceedings. As to this, his Honour said:-

“In short, it was evidence which totally exculpated him and inculpated Argyris and Bourchas. In so far that it was an induced statement, it could not be used against him. In this sense, and its exculpatory tone, it was to his advantage not the advantage of justice. Its contents, however, were sufficient to cause the two defendants to decide to plead guilty. In this sense, it furthered the course of justice. It so irritated the two defendants that they decided to give evidence against the present prisoner. That too supported the course of justice. So in the end, through lies, half truths and the creation of false impressions, justice was served.”

47 His Honour went on to say that:-

“There appears, however, to have been an insurmountable case against Argyris and Bourchas even without this prisoner’s evidence which would no doubt have brought about their pleas of guilty in the fullness of time anyway.”

48 Providing they are understood to relate to only the 9 April 2000 importation, his Honour’s remarks to the effect that there was an insurmountable case against Mr Bourchas are clearly correct. Subject to the same proviso, they may also be correct so far as Mr Argyris although the evidence against him does seem to be appreciably weaker than in the case of Mr Bourchas. The remarks are not correct, at least so far as the evidence before his Honour goes, if they are regarded as applying to a longer period of offending.

49 However, it must also be borne in mind that the Respondent’s lies prior to he himself being charged inevitably created a large impediment to any assistance he could give being used against Messrs Argyris and Bourchas. Had he been called to give evidence, those lies would have provided fertile ground for any jury to be asked to disbelieve him. The rationale for giving discounts for assistance is to enable other offenders to be prosecuted and punished for their offending. Here the Respondent’s early conduct seriously detracted from, if indeed it did not effectively eliminate, any benefit to law enforcement that his later disclosures about Messrs Argyris and Bourchas conferred. When all the circumstances are considered, it is impossible to conclude that Judge Shadbolt’s allowance of a 10% discount for the Respondent’s assistance in relation to Messrs Argyris and Bourchas was outside the boundaries of a proper exercise of his Honour’s discretion. Indeed, once one recognises the importance to law enforcement of those who are willing to give assistance being frank, then one must ensure that the benefits for assistance to those who are not frank are appropriately limited. As was said in R v Cartwright (1989) 17 NSWLR 243 at 252, “The discount will rarely be substantial unless the offender discloses everything which he knows”.

50 The second aspect of the claim for a discount lay in information the Respondent had provided to the effect that the initial importations had been arranged not with Mr Polyzoidis but with a person whose name was Spiro. As to this his Honour said:-

“As to the other matter of information, the police did not act upon it and said in exhibit M that it was of negligible value. There has been an attempt in the course of this plea by senior counsel to disclose (sic) the value of this information and it has been submitted on the prisoner’s behalf that I should make my own assessment of it rather than rely on the assessment of it by the police. I do not consider this to be possible. If the police, who are after all the recipients of the information, regard it as being of little moment then it has been of no assistance to authorities.”

51 The clear inference is that his Honour gave the Respondent no credit or discount for the imparting of the information concerning Spiro and took this approach because the information was of no assistance.

52 Such an approach is wrong - see R v Cartwright (supra) at 253. While undoubtedly the extent of the discount allowed is liable to be affected by the value of the information displayed, the benefits to the administration of justice of offenders being willing to inform mean that some allowance should be given where there is frank disclosure of information which, so far as the informer is concerned, is unknown to the authorities. As was said in R v Cartwright, “…the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective.”

53 It is appropriate to record that the evidence given by police officers at the Respondent’s sentencing proceedings and, at least so far as can be gleaned from that evidence, their response to the Respondent’s information was, to say the least, curious. Following his arrest in July, there was a meeting on 18 October 2001 between representatives of the DPP and the Respondent’s lawyers. The tenor of the information provided by the latter on the Respondent’s behalf included that Spiro, whose surname the Respondent did not know but whose address he gave, was involved in Comtech which imported from 1998 to January 1999 and that Mr Polyzoidis only came into the picture with the later companies and did not know about Spiro. Mr Argyris was working for both but this information was kept from Mr Polyzoidis. Spiro was said to be a very large drug importer and the Respondent knew that the NCA had an interest in him.

54 The DPP passed this information on to the police who, according to a letter from the DDP of 20 December 2001, advised that it was of no value.

55 The first witness called at the sentencing proceedings was Detective Garwel. A statement by him had been tendered. In the statement he referred to the information which had been supplied and said that he was not able to identify the person nominated and found no corroborative documentation or other supporting evidence concerning Spiro’s involvement. He went on to say that Polyzoidis was deceased and Argyris had been sentenced, that on the information provided by the Respondent no successful prosecution could be launched against Spiro, and that he believed the information supplied was unreliable, historical intelligence at best and of limited evidentiary value. Cross examined on the topic, Detective Garwal said that it was Detective Watson who had made enquiries following the giving of the information and he was the person to speak to about them.

56 Later Detective Watson gave evidence. He contradicted important aspects of what Detective Garwel had said. Detective Watson said that the Federal Police had been investigating Spiro from May 2001, that he himself had made enquiries in October 2001 following receipt of the information from the Respondent and identified a person named Spiro at the address given by the Respondent. He said that he could not explain why the Respondent’s lawyers had been told in 2001 that, so far as the enquiries went, Spiro did not exist.

57 Detective Watson said that, although Mr Argyris was then in custody and had not been sentenced, no attempt was made to interview him in relation to Spiro. However, Detective Watson, also said that an adjournment of the proceedings against Argyris to enable this to be done was sought but refused.

58 Argyris was sentenced on 19 October 2001, having, according to remarks made by Naughton DCJ when sentencing him, been indicted and pleaded guilty on 29 August 2001. The timing of these events indicates that the Respondent’s information concerning Spiro was calculated – I do not suggest, designed - to make obtaining corroboration from Mr Argyris before his sentencing very difficult. After sentence of course, his incentive to assist would by no means have been as great.

59 Detective Watson gave evidence that in fact as a result of the independent investigation of Spiro he was charged with being involved in an importation in March 2002 similar to those with which the Respondent was involved and purporting to be of computer parts. The information provided by the Respondent seems not to have been taken further.

60 In these circumstances, there was little benefit to the authorities in the information which the Respondent gave concerning Spiro. The lateness of his disclosure militates against him being given much by recognition of willingness to assist the cause of justice. However, because of the desirability of encouraging disclosures such as those he made the Respondent should have received some credit on account of his information concerning Spiro.

61 That last remark is subject to the proviso that the information was accurate. Unfortunately his Honour made no finding in this regard. His Honour’s remarks about the Respondent’s credibility militate against any assumptions as to such credibility but the Respondent’s chances of otherwise having his claim corroborated have also been hampered by the approach of the police.

62 For the reasons apparent in what has been said, any credit the Respondent is entitled to on this account must be small at best. Given that the claim against Spiro was unlikely to benefit the Respondent unless supported in some way, there was no apparent reason for the Respondent to make up that claim and in the circumstances, it seems to me that this Court should approach the appeal on the assumption that the claim was true. In the circumstances of this case remission of the matter to the District Court is not a satisfactory option. In the result, I regard the Respondent as entitled to have the figure of 10% which Judge Shadbolt allowed by way of discount for assistance increased slightly.

63 It was submitted that the discount of 15% given for the Respondent’s plea was inadequate. It was pointed out that that plea was before committal and that the case against him depended largely on the evidence of Messrs Argyris and Bourchas, both co-offenders who had denied their own guilt and who were to receive benefits for implicating the Respondent. It was submitted that the Respondent’s overspending was not conclusive of his criminality and that he had “volunteered” the fact of the $10,000 he had received from Mr Agyris. The Crown case against the Respondent was not, so it was submitted, overwhelming.

64 However, it was not merely the fact of the Respondent’s overspending upon which the Crown could rely. He had kept many records of this and the summary of the spending which was in evidence indicates that there was a significant correlation between the commencement and then continuation of that overspending and the commencement and continuation of the importations. While the case the Crown could have made against the Respondent may not have been overwhelming, it was by no means weak. Nor was it of particular complexity.

65 And, although I do not need to rely on it, it seems not unlikely that there would have been some record of the frequency with which the Respondent seems to have attended his place of work at week-ends to deal with the subject consignments and of his dealing with them.

66 As his Honour recorded, the plea was not entered at the earliest opportunity, the Respondent having been arrested on the subject charge in July 2001 and not indicating until December 2001 that he would plead guilty. It also must be remembered that the allowance which should be made for a plea is, to a significant extent, a matter for the discretion of the sentencing judge. Despite the terms in which submissions by defence counsel are often couched, there is no “entitlement” to receive a discount of 25% for every plea entered no later than committal – see also R v Scott [2003] NSWCCA 286 at [28]. Subject to what follows, I do not regard the allowance of 15% made as necessarily outside the legitimate exercise of his Honour’s discretion.

67 However there is one further matter in this connection that merits attention. When his Honour was dealing with the time of entry of the plea he said:-

“It could not be said that it was at the earliest opportunity or, having regard to his letter to the Attorney General, motivated by contrition. Nor does it display a willingness to recognise and co-operate with the system of criminal law in the Commonwealth. He was still prepared to use six days of court time pursuing really quite spurious matters of mitigation.”

68 What occurred in the six days to which his Honour referred was as follows. On 20 September 2002, the Crown tendered a number of documents including a Statement of Facts. Counsel for the Applicant then indicated that he wished to take issue with the Crown’s suggestion as to the Respondent’s place in the conspiracy, the quantity of heroin and perhaps – the exact import of what was said is not clear – to adduce some evidence bearing on the extent of the discount for assistance. Detective Garwel was called and cross-examined on the topic of assistance. Then, with a view to defining the issues and enabling the Crown to decide what further evidence it might need to call, it was agreed that the Respondent would give evidence next. He was called at 3.25pm on 20 September. At the end of the day the proceedings were adjourned to 21 October. Judged by the length of the transcript, the Respondent gave evidence in chief until about mid-way between the end of the morning adjournment and lunch time on 21 October, i.e. something of the order of 2½ hours (and 45 pages of transcript) in total. He was cross-examined for the balance of that day and for some time on 22 October, the cross examination occupying some 90 pages of transcript. There were 4 pages of re-examination that day (which would seem to have finished early) and 10 pages on 23 October. Then the Crown called Mr Argyris. His evidence, most of it cross-examination, took what seems to have been the balance of that day. On the following day the Crown called Detective Watson whose evidence, most of which was in cross-examination, continued well into the afternoon. Submissions occupied the balance of that day and some 21 pages of transcript on 25 October.

69 Having regard to that chronology and to the fact that the Respondent was represented throughout by experienced counsel, the statement that the Respondent was “still prepared to use six days of court time” does not seem to me to fairly represent what occurred. Nor was it accurate to characterise the subjects which were said to take the 6 days as (all) “spurious matters of mitigation”.

70 The Crown chose to include in its “Statement of Facts” many accounts of conversations the source of which could only have been Mr Argyris and the terms of which were calculated to indicate that the Respondent’s activities by way of instructions and demands for money were appreciably more than he was prepared to concede. He was also said to have met with other offenders. Such were not matters of mitigation. Nor was it accurate to describe the Respondent’s claim that Spiro was involved and evidence to this effect “spurious”, at least unless his Honour was prepared to conclude – and he did not - that these matters were just manufactured.

71 In light of his Honour’s remarks quoted in this part of my Reasons, the conclusion is inevitable that the discount allowed for the Respondent’s plea was affected by error. This discount also should be increased to some degree.

72 The Respondent gave evidence that, following the Verticon shipment he said to Mr Argyris that he wanted out. He said that Mr Argyris replied that it was not the Respondent’s call and that there were a lot of big people involved. The Respondent said that from that time on he felt under duress and was concerned for his family and sought other employment through an employment firm, Tuckwells. There were tendered notes of an interview he had, made by a Mr Bradley, a regional manager of Tuckwell Trade and Logistics Personnel Pty Limited on 18 November 1999. On their face, those notes certainly suggest that the Respondent was then looking for another position.

73 According to the Respondent, he was offered temporary positions but, needing a certain income to support his mortgage, they were not satisfactory. There is no evidence that the Respondent took any other steps to cease his participation in the conspiracy.

74 Unfortunately from the Respondent’s point of view, His Honour’s findings in relation to this ground were that he did not believe that the Respondent’s continuance in the conspiracy was the result of threats. That is a finding of fact which, given his Honour’s findings and the other matters to which I have referred bearing on the Respondent’s credibility, is one which this Court would not be justified in setting aside. One may accept that the Respondent was interviewed by Mr Bradley but that says little on the topic of whether that interview was inspired by a genuine desire to obtain another job and nothing as to the existence of either threats or whether the Respondent’s continued participation was as the result of them.

75 So far as the first of these matters is concerned, it appears that the Respondent agreed to a Proceeds Assessment Order that he pay the Crime Commission $190,000. The home owned by the Respondent and his wife was sold and the equity he and his wife had was paid to the Commission. The Respondent’s wife was allowed to retain their car by reason of the Applicant borrowing from his parents an amount equal to its value and paying that to the Commission. The Respondent has no property or assets left.

76 How the $190,000 figure was arrived at has not been revealed. It may well be approximately the difference between the “about $200,000” which the Respondent agrees he received and the $10,000 which he handed over to the police when first spoken to by them. Nor does the evidence clearly disclose why forfeiture of this sum, which is no more than the profits the Respondent derived from his illegal activity, should have left his wife and himself with no assets although the explanation may lie in the fact that, as has been said, much of the illegal earnings was spent on extravagances.

77 If that be the explanation - and the Respondent has not established that it is not - then his penury might fairly be regarded as due to his spending habits rather than to an order made under the legislation directed to ensuring that the proceeds of criminal activity are not retained.

78 In any event, the topic of the extent to which forfeiture of such proceeds should be taken into account in any determination of sentence was considered at length in Kalache (2000) 111 A Crim R 152. There Sully J, with the concurrence of Hidden J and myself, said that the approach to be adopted was contained in the following quotation from the judgment of the New Zealand Court of Appeal in Brough [1995] 1 NZLR 419:-

“It is our conclusion having regard to the scheme of the Act, that as a general proposition, confiscation orders under the Act should not be taken into account when assessing sentencing, subject to two qualifications. First, there may be exceptional or unusual circumstances where orders made, particularly orders to forfeit valuable property used in the commission of an offence, may have a disproportionate or exceptional effect on the offender, sufficient for some regard to be had to it when imposing sentence. Secondly, recognising that one of the purposes of the sentence to be imposed is to deter others who may be minded to commit like offences, if forfeiture orders of property used in the commission of offences are particularly severe, some adjustment to the sentence may be appropriate because the deterrent effect of the forfeiture orders may lessen the need for the deterrent element in the sentence. But it is difficult to conceive of circumstances where orders to forfeit the proceeds of the offence or for a pecuniary penalty order reflecting the benefit derived from the commission of an offence, should have any relevance to an appropriate sentence. These reflect the offender’s ill-gotten gains which, in accordance with the policy of the Act, and irrespective of sentencing for offences, the offender should be required to disgorge.”

79 To the extensive list of authorities reviewed by Sully J, one may add Stocks (2000) 113 A Crim R 131.

80 It is obvious that the Respondent has also lost his employment. A letter from his employer indicates that he was a valued and trusted employee who was earmarked for promotion and an opportunity to buy into the business. The author of the Pre-Sentence report records that the Respondent’s employer had indicated that he was willing to provide employment for him at another branch on the Respondent’s release. Whether of course that willingness will remain for the length of time the Respondent will remain imprisoned, and indeed whether the employer will still be in business for that time, must be unknown.

81 Loss of employment is, of course, but a common incident of both criminal activity and imprisonment and not a matter deserving of special consideration when the issue of the length of a term of imprisonment which must necessarily be imposed is under consideration. That is not to say it is irrelevant. The length of a sentence imposed for a serious drug offence is likely to have an impact on an offender's life in terms of wife, children, job prospects and the like from which he may well never recover or, at the least, from which recovery will be difficult and in any judgment as to the severity of punishment it would be wrong to ignore these factors.

82 The general proposition is beyond dispute. However it should also be noted that a finding by Shadbolt DCJ that the amount involved was not less than “massive” was not the subject of challenge in the appeal. Earlier his Honour had referred to there having been several hundred kilograms, but later, after observing that the quantity could only be an estimate, he made the finding to which I have referred.

83 But there is advantage in trying to be somewhat more precise if the evidence permits. It was common ground that there were 46 parcels imported. The weight of the parcels varied. The lightest was recorded as 2 kilograms and the heaviest 38 kilograms. The total weight of the parcels, according to a table provided to this Court, seems to have been 612 kilograms. (An abbreviated list, referring to only 33 parcels weighing 451 kilograms was before Judge Shadbolt.) Both tables show that after April 1999 the weight of the parcels increased markedly. According to the fuller table, between 19 July 1998 and April 1999 the average weight of 23 parcels was 8 kilograms. Between May 1999 and April 2000, the average weight of 23 parcels was over 18 kilograms, there being included in this group the 38 kilogram parcel and 13 other parcels with weights of 20 kilograms or more. The abbreviated list provides a similar picture. That there were some dummy runs where parcels contained no heroin, presumably to test the reliability of the system, was common ground. As recounted above, Mr Argyris asserted that the Respondent had stipulated for 2 dummy runs. According to Mr Argyris, this instruction was repeated when at least one of the second and subsequent consignees was being arranged and it may be that 2 dummy runs were contemplated whenever there was a change in the name of the consignee. There was certainly evidence that this occurred even though there was also compelling evidence that this did not occur with the first parcel addressed to Comworld on 29 February 2000. The second parcel to that consignee, on 2 March 2000, did not contain heroin.

84 The Statement of Facts tendered by the Crown asserted:-

“The overall gross weight of the suspected importations is 584 kgs allowing for the “dummy runs” identified by Bourchas.

85 This statement was disputed. Mr Bourchas was not called and it is not apparent which were, or by what criteria Mr Bourchas identified, the dummy runs.

86 Other passages in the Statement of Facts which were not the subject of exception indicated that the consignment received on 29 February 2000 was said to weigh 3 kgs. It was then picked up by Bourchas, and passed to Mr Polyzoidis, who left it in a vehicle for collection. It was collected by a Mr Ho who was then apprehended. The heroin found on Mr Ho and said to have been attained from the vehicle weighed 4.05 kgs and 2.807 kgs pure. The discrepancy between the three and the 4.05 kgs was not explained although it could be due to the shipping weight being understated.

87 In a passage which was not the subject of dispute, the Statement of Facts also referred to a consignment which arrived at the airport on 9 April 2000 and was there intercepted. The total weight of the consignment was recorded as 23 kgs and the parcel was found to contain 14.8 kgs of heroin or 9.811 kgs pure. 14.8 was apparently calculated to be 64% of 23.

88 Following the passage which I have last quoted, the Statement of Facts went on:-

Using the same proportion as in the COMWORLD delivery on 9 April 2000 (being weight of heroin to gross weight of the shipment) the estimated weight of pure heroin police believe to have been imported by this syndicate is approximately 375 kgs.”

89 Of course, 375 kilograms is 64% of 612 kilograms, being the weight of all the parcels, not of the 484 kilograms which the non-dummy runs were said to weigh.

90 The accuracy of the passages from the Statement of Facts which I have quoted in this section were not accepted on behalf of the Respondent on whose behalf it was submitted:-

“There is no evidence of the overall gross weight of heroin or the net pure weight of heroin imported by this scheme. It is acknowledged to be substantial.”

91 It was common ground that the Respondent was not paid for dummy runs. In the case of the first shipment the Respondent received $5,000 or $5,500. When he was paid thereafter, the amount was, according to Mr Argyris, $10,000 and, according to the Respondent, between $5,000 and $10,000 for the next 2 to 4 and then $10,000 each. He was dependent on those above him in the hierarchy, in particular Mr Polyzoidis, for saying which were dummy runs.

92 In evidence the Respondent estimated that he was paid “about $200,000”. He said that it could not have been more like $300,000 although when asked if the amount could have been $250,000, he said that he didn’t know. He estimated that he had been paid for about half of the 46 consignments. In a passage, not the subject of challenge, in the Statement of Facts it is asserted that an analysis of the financial records seized from the Respondent’s home, showed that the expenditure of the Respondent and his wife far exceeded their income. It was said that their combined legitimate income between 1 January 1998 and December 2000 was approximately $55,000 and their expenditure during the period January 1998 to May 2001 exceeded $250,000.

93 Before Shadbolt DCJ the Crown prosecutor said that he did not believe that one could ever be satisfied beyond a reasonable doubt that there was more than a defined precise amount involved. However in this Court the Crown sought to rely on his Honour’s reference to “hundreds of kilograms”.

94 I am not persuaded that that reference constituted a considered finding by his Honour but if it did, it seems to me to overstate the weight of pure heroin involved. Whether one takes the table referring to 46 shipments or that referring to 33, the average weight of the parcels was something over 13 kilograms. There was no challenge to his Honour’s finding that at least 23 of the shipments contained heroin and in any event that figure accords closely with the Respondent’s evidence that he received about $200,000 at generally $10,000 per consignment of heroin, except for an early few when he was paid less. (The absence of challenge is hardly surprising. It seems to me a finding of “at least 23” is very favourable to the Respondent.) Be that as it may, there was no finding that any number of shipments, higher than 23, contained heroin.

95 13 kilograms multiplied by 23 totals 299 kilograms.

96 For the purposes of the Customs Act, one is required to consider the pure quantity. There were, as has been indicated, only 2 shipments where the quantity of heroin was known. The last shipment is the one where the figures are the more reliable (and the most favourable to the Respondent) and of its 23 kilograms gross weight, the heroin constituted 9.811 kilograms. Applying that proportion to the figure of 299, leads to a figure of 127 kilograms.

97 Clearly, when one has no information to indicate that the relative weights in the last shipment accorded with those in all or any of the shipments that went before, it is not possible to conclude beyond reasonable doubt that the quantity of heroin imported was, or was as great as, 127 kilograms. On the other hand, the purpose of the exercise was to import heroin. The large increase in the weights of the consignments after April 1999 compels the conclusion that the operation was at that time regarded as successful. I am content to proceed on the basis of Shadbolt DCJ’s finding that the quantity imported was “massive” but insofar as it may be necessary to find a minimum quantity, I have no difficulty in concluding beyond reasonable doubt that the quantity imported was not less than half of the figure of 127 kilograms. The discount allowed from the 127 kilograms inherent in that conclusion makes more than adequate allowance for the assumptions and imprecision in the calculations.

98 I turn now to the Crown appeal. It must be considered in light of the conclusions at which I have arrived and not simply on the basis of his Honour’s findings. It is convenient to consider the appeal in the first instance without regard to the sentences imposed on those who can be regarded as the Respondent’s co-offenders.

99 The Respondent’s offence was against s233(1)(cb) of the Customs Act and involved not less than a commercial quantity of heroin. The maximum penalties prescribed under that Act for offences relating to the importation of drugs such as heroin are expressed to be dependant on the quantity of drug involved. Subject to some qualifications not presently relevant, where the drug is heroin and

(i) The quantity is less than 2 grams, the maximum penalty is imprisonment for 2 years and a fine not exceeding $2000;

(ii) The quantity is a “trafficable quantity”, i.e. not less than 2 grams but not as much as 1.5 kg, the maximum penalty is imprisonment for 25 years and a fine not exceeding $100,000; and

(iii) The quantity is a “commercial” quantity, i.e. not less than 1.5 kg, the maximum penalty is life imprisonment.

(iv) The quantity is not less than a “trafficable quantity” and the offender has previously been convicted of a similar offence involving not less than a “trafficable quantity” of a narcotic substance, the maximum penalty is life imprisonment.

100 In practical terms, in States such as New South Wales, at the time of the Respondent’s offence s16G of the Crimes Act (Cth) had the effect of notionally reducing these maximum fixed periods of 2 and 25 years by about one-third – see El Karhani (1991) 51 A Crim R 123; R v Doan (unreported, CCA, 27 September 1996).

101 This pattern of graduated maxima in the legislation makes it clear that quantity is an important consideration in the sentencing exercise. Authorities such as R v Dodd (1991) 57 A Crim R 349 which emphasise the need to have regard to the gravity of an offence viewed objectively and R v Peel (1971) 1 NSWLR 247 where, at 262 it was said that "In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" also indicate the need to direct attention to the topic of quantity.

102 And although a majority of the High Court has said that weight is not the chief factor to be taken into account in fixing a sentence - see Wong v R (2001) 207 CLR 584 at [67], their Honours also made it clear that weight is material. Given the terms of the legislation and the fact that the extent of the illegal profit and the degree of harm arising from an importation is liable to be roughly proportional to weight, it could hardly be otherwise.

103 Nor is it inappropriate to reflect on the harm heroin, particularly a quantity such as that with which the Respondent was involved, is likely to do. Much, if not most of the work of the criminal courts is taken up with the consequences of the ravages heroin inflicts on those who take it and, by them, on society. One cannot be long in those courts without becoming very aware of the waste of life and degradation heroin inflicts on the lives of the tens of thousands of persons it comes to dominate and without having to deal with the violence to which many addicts resort to feed their habit.

104 And even in simple dollar terms, the cost to society is enormous. One kilogram of pure heroin provides over 5000 “caps” or street deals of 0.3 grams of 65% purity. At a price of $40 per deal, the users are paying over $200,000 a kilogram. Few users can support their habit except by crime and almost all the $200,000 will be obtained by theft, costing in itself and associated damage, a number of times that figure.

105 For example, the survey of imprisoned burglars reported in "The Stolen Goods Market in New South Wales" conducted by the New South Wales Bureau of Crime Statistics and Research indicated a median expenditure by heroin users of $1,500 per week and for many the need to steal goods, the replacement cost of which was 3 to 4 times that amount, to feed their habit. On average each such offender is thus costing the community through property losses and the like over $200,000 per year. And that says nothing about the damage done to cars or homes or the like often broken into to obtain the goods, or the cost to the community of police forces and courts having to deal with such offenders.

106 (The figures to which I have just referred were not the subject of evidence in the Respondent’s sentencing proceedings. However, the topic of heroin usage, price and purity comes often before the Courts and has been dealt with sufficiently often in published research material for judicial notice to be taken of it – c.f. R v Henry (1999) 46 NSWLR346 at 360-366, 399-403. The figures I have used, other than those in the immediately preceding paragraph where I have stated the source, are more than supported by data contained in the 1998-99 Australian Illicit Drug Report published by the Australian Bureau of Criminal Intelligence. Support for various of them is also to be found in “Australian Drug Trends, 1999”, published by the National Drug and Alcohol Research Centre, a Research Report by Darke, Topp, Kay and Hall entitled “Heroin use in New South Wales, Australia, 1996-2000” published by that Centre, and an Article “Heroin Purity and composition in Sydney, Australia” by Maher, Swift and Dawson in the 2001 Drug and Alcohol Review (though it should be said that the survey the subject of that article was performed on drugs seized in 1996 and 1997).)

107 In this area precision is neither possible nor required. The Respondent is not being sentenced for the harm the heroin he helped import did. The figures but provide some indication of some of the harm that the importation of heroin is liable to effect. Per kilogram it is liable to exceed, or at least be of the order of, $600,000 ($200,000 x 3). Of course, not all of any kilogram is likely to be paid for by stolen goods: But neither does the $600,000 take account of any other damage which might be caused.

108 The High Court has also made it clear that also relevant is the Respondent’s state of knowledge as to the quantity involved. The Respondent’s evidence was that he never asked how much heroin would be coming in the consignments. Subject to his claim that at some stage he tried to cease his involvement in the importations – a claim that was rejected - the only inference is that he did not care. He was content to assist, or if one confines attention to the agreement inherent in his conspiracy – and that is not necessary – Savvas v R (1995) 183 CLR 1- agree to assist in the importation of whatever quantity those organising the shipments chose to bring in to this country.

109 And as shipment followed shipment, as the weights of shipments increased from 3 or 5 kilograms as the first 2 shipments were, to 11 and later often 20 or more kilograms each, the Respondent must have come to know with absolute certainty that large quantities were involved. Yet he continued to assist. His agreement or his assistance pursuant to the conspiracy extended over a period of almost 2 years. His conduct amounted to conscious deliberate criminality, time after time, and at least up until the time of the Verticon shipment, for the rewards that conduct provided. It may be that, despite Judge Shadbolt’s rejection of the Respondent’s claim that he continued after that shipment due to fear, when regard is had to the onus of proof one should not conclude that reward was the motivation thereafter. However he continued to receive and enjoy those rewards. “The degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" was gross.

110 The graduated scale of penalties means that it is appropriate to consider cases of importing commercial quantities against the benchmarks laid down for trafficable quantities – see Perrier v Richardson (No 2) (1991) VR 717 at 722 and 728; (1990) 59 A Crim R 164 at 168-9 and 174 and R v Markarian [2003] NSWCCA 8 at [38]. Whether one regards the quantity involved as simply “massive” or half of the 127 kilograms to which I have referred, the Respondent consciously agreed to assist in the bringing into Australia of many, many times the 1.5 kilogram upper limit for a trafficable quantity for the importation of which (or conspiracies in that connection) Parliament had seen fit to prescribe a maximum period of imprisonment of 25 years or, if one regards that figure as subject to reduction to reflect s16G of the Crimes Act, something of the order of 16½ or 17 years.

111 It is appropriate to recognise that there were others whose participation and reward would have been greater than the Respondent’s but, as Wells J said in Le Cerf (1976) 8 ALR 349, at 351, in a passage that has received endorsement in this Court on numerous occasions:-

"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 clearly to be 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."

112 The role of the Respondent in the shipping agency rather than as principal behind the importation did not lessen the damage suffered by the community as a result of the importations. The frequency with which such principals find others to assist them suggests that the need for general deterrence of willing helpers such as the Respondent is not significantly less than in the case of principals.

113 Where the offender’s knowledge is, and the extent of participation is as great, as the Respondent’s was in this case, there is much to be said for the view that a head sentence of life imprisonment should be the norm for those who provide important assistance in the importation of quantities of the order of that here. Such is the assault on society, so great is the harm that the importation is liable to inflict that considerations of general deterrence and retribution argue persuasively for such a sentence. And there is difficulty in reconciling any lesser sentence with the 16½ years provided by Parliament for the importation of but 1½ kilograms.

114 In this regard I would echo the words of Sully J, repeated by his Honour in R v Chun Hing Law [2002] NSWSC 952 at [24]:-

“1. The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well being of the Australian community. The same is to be said of any form of trafficking of heroin within this country.

2. The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.

3. In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, like the present prisoners, engage in drug-related crime when they are themselves not drug dependent.”

115 I do not forget that the role of the offender in any importation is, traditionally, regarded as of significance. However, there are limits to the importance of that in a particular case – see R v Olbrich (1999) 199 CLR 270 at 280, and it seems to me that the difference between a major and minor, but still important, role when the quantity is of the order of that with which the Respondent was involved (and the other circumstances, including knowledge, are of the seriousness of those here), is so overshadowed by the criminality inherent in the quantity as to be of limited weight.

116 In R v Chun Hing Law (supra) where the offender was described as having been “at a senior level within the organisation when he was largely unsupervised and fulfilling a critical and central role in the overall conspiracy”, Sully J also said (at [14-15]):-

It is useful to recall the following propositions, stated by Badgery-Parker J in R v Twala (NSW) CCA 4 November 1994:

“….. (I)n order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).”

Applying those principles to the given facts of the prisoner’s case, I am well satisfied that the prisoner’s case falls into the worst category. He took part knowingly and actively in an ongoing conspiracy to bring into Australia quantities of heroin amounting to, on the view most favourable to the prisoner, a total in the order of 30 times the statutory threshold for a commercial quantity. If that is not sufficient to constitute a worst case of the kind, then I find it difficult to envisage what would so suffice.”

117 I am not sure that one needs to go as far as Badgery-Parker J did in describing a worst case but, be that as it may, I share the views of Sully J expressed in the last paragraph quoted. The Respondent here was not as active as was Law but his involvement was sufficiently great as, in the circumstances here, to make the difference immaterial. The fact that there were others whose involvement was greater and therefore their conduct worse than the Respondents does not mean that he was not in a “worst category”. As the High Court said in Veen v R (1987-1988) 164 CLR 465 at 478:-

“… the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed. …. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.”

118 I should acknowledge that some of the authorities take a more lenient approach. For convenience I have attached a summary of those involving large quantities of heroin or cocaine to which I have had regard and accordingly I can discuss them with more brevity here, and omit the citations.

119 Meggett, whose role was, for many months, to captain a vessel on which 171 kg of cocaine was brought from Panama, was thought by Wood CJ at CL to merit a head sentence of 20 years after a s16G adjustment. (The sentence imposed was in fact one of 10 years with a non-parole period of 6 years but reflected a discount of 50% for assistance.) His Honour referred to the role of the offender as indispensable, above that of a mere courier but short of a mid-level executive or organiser.

120 Other offenders who had a major role but whose sentences were less than life, were Kwong Yue Cheung – third or fourth rung down, consignee and assistant to consignor, 32.4 kg, 22.5/13 years, Lara Gomez - consignee and distributor, 77.275 kg, 18/13.5 years, Kuan – consignee, made arrangements, re-packaged and delivered, but subject to supervision, 40+ kg, 12/7 years, Savvas – not the head principal, 64 kg, 18/6 but possibly affected by parity, and Tamayo – local distributor but subject to supervision, 47.7 kg, 14/10 years. I would regard Ung, whose role was to facilitate delivery of some 54.5 kg as also in this category. Martinez, Tamayo’s lieutenant, received a sentence of 10/7 years. With the exception of Savvas and Ung, all of these offenders pleaded guilty.

121 On the other hand, Wangsaimas was sentenced to imprisonment for life. His role was that of the captain of the vessel which carried an 89 kg shipment from the Gulf of Thailand to Australia. He also recruited the crew. But for considerations of parity, Mandagai (225 kilograms) who was also a captain of an importing vessel, would have received the same. Wangsaimas pleaded guilty. Mandagai pleaded not guilty.

122 In R v Campillo, R v Flavel, and R v Gonzales-Betes where the offenders were involved in the same importation as Meggett, life imprisonment was imposed on persons who seem to have been no higher in a hierarchy than active “mid-level executives”. They had all pleaded not guilty. The quantity involved was 171 kg.

123 A number of the other cases to which I have referred involved offenders who were the principal or regarded as close to the principal in a hierarchy and sentences of life imprisonment were, or but for a mistaken – see Lee Vanit v R (1997) 190 CLR 378 - view that s16G precluded such a sentence, would have been imposed. Offenders in R v Cheung Yin Lun, R v Law, R v Mooseek, R v Ng, R v Tam and R v Yook fall into this category. Because the Respondent’s role was appreciably less than that of the offenders in those cases, I regard them as throwing little light on what the sentence to be imposed on the Respondent should be.

124 Because of the extent to which, in sentencing those dealt with in R v Wah and Others, the Court relied on what had been said in R v Cheung Yin Lun and R v Ng it seems likely that the sentences in that case are also affected by the mistaken view of the effect of s16 G. Two of the offenders in Wangsaimas & Ors may also fall into the category of being close to the principal. Although at least 2 rungs down, they were entrusted with safe shipment of the drug and they were to arrange and facilitate delivery in Australia. The head sentence imposed on each of them was life imprisonment.

125 Although there are differences in quantity, I doubt if it is possible to reconcile the sentences imposed on most of Kwong Yue Cheung, Lara-Gomez, Kuan, Savvas, Tamayo, and Ung on the one hand with those imposed on Campillo, Flavel, Gonzales-Betes, Wangsaimas, and, but for considerations of parity, would have been imposed on Mandagai. Certainly those imposing the sentences have not sought to demonstrate such reconcilability. The two offenders last mentioned were but important hired help, as was the Respondent. See also the remarks of Greg James J in R v Gonzales Bates, quoted in the schedule. But whether reconciliation is possible or not, for the reasons I have indicated, and subject to what follows or other special situations, I regard a life sentence as the lowest head sentence which should be imposed on someone who knowingly plays an important role in the importation of quantities of the order of that with which the Respondent was concerned. Of course, as importation is a Commonwealth offence, it would remain necessary to consider the fixing of a non-parole period.

126 But although life imprisonment is the sentence I would impose had the Respondent not assisted authorities, that assistance leads me to the view that the head sentence should be less, both in order to reward the assistance and in recognition that his sentence is likely to be served on protection. His plea operates in the same direction but whether it would have been sufficient on its own, I need not decide. There are undoubtedly some cases where criminality is so high that no discount should be made for a plea – see R v Kalache [2000] NSWCCA 2 at [114-115] and [200].

127 It was submitted on behalf of the Respondent that, although not a case of strict parity, there should be some balance between the sentence imposed on the Respondent and the sentences imposed on Messrs Argyris and Bourchas.

128 On 19 October 2001, Mr Argyris had been sentenced to imprisonment for 7 years including a non-parole period of 4 years and 2 months, the sentence reflecting a starting point of 21 years, a reduction by one third on account of s16G of the Crimes Act (Cth), a discount of 15% for the utilitarian value of Mr Argyris’ plea, and 35% for past and future assistance to the authorities. Judge Naughton understood that Mr Argyris was to receive $1000 or $1,500 for his part in the importation and described Mr Argyris as an intermediary, above a courier, but not a major player. His motive for participation was financial.

129 The first instance sentencing proceedings relating to Mr Bourchas were held by this Court to have been affected by error. On appeal, the sentence imposed was imprisonment for 4 years and 11 months including a non-parole period of 3 years. A discount of the order of 15% for a plea and 50% for assistance to the authorities was allowed from a starting point, after the s16G discount, of 14 years. Bourchas was regarded as more than a mere courier and having an important role. His motive for participation also was financial.

130 However the charges preferred against Messrs Argyris and Bourchas related to only the importation of 9.811 kg (pure) on 9 April 2000. Argyris was charged with being knowingly concerned in the importation into Australia of a commercial quantity of heroin and Bourchas with attempting without reasonable excuse to obtain not less than a commercial quantity of heroin. The difference in charges and more particularly the difference in quantity the subject of the charge against the Respondent and that the subject of the charges against Argyris and Bourchas means that no practical comparison is possible and no issue of parity arises.

131 Indeed, once one recognises the difference in the criminality charged, the starting point of 21 years before the s16G allowance which was adopted in the case of both Argyris and Bourchas provides a good indication how low was the 27 years that Judge Shadbolt used in arriving at the sentence he imposed on the Respondent.

132 Furthermore, if parity did arise it would also be necessary to compare the Respondent’s sentence with those imposed on 2 other offenders. One, Chen, was sentenced to imprisonment for 40 years including a non-parole period of 26 years on a charge that between about 1 January 2000 and 9 April 2000 he conspired with other persons to import into Australia commercial quantities of heroin. He was regarded as having, in about February 2000 taken over, as principal, the operation in which the Respondent had been involved. He was found to have links with Chinese suppliers, to be involved in negotiating the acquisition of the heroin and the payment therefore and was giving instructions to others involved. Chen was sentenced on the basis that the quantity of heroin imported pursuant to the conspiracy with which he was involved was just over 17 kilograms.

133 Another offender, Fang He, pleaded guilty to taking part in the supply of heroin, said in his proceedings to be 4.25 kilograms, which had been imported on 29 February 2000 and to a second charge of being knowingly concerned in the importation on 9 April of the 9.8 kilograms (pure). He was found to be involved in the organisation in an advisory role, familiar with the organisational details, recruiting others and to be liaising with the person in charge of the local distribution. He was subsidiary to Chen. He was sentenced to imprisonment for a fixed term of 3 years on the first charge and to a cumulative term of, after the s16G reduction, 20 years including a non-parole period of 13 years on the second. This Court refused leave to appeal against sentence.

134 However, as I have indicated, the difference in the charges means that the situation is not one where normal principles of parity have any application at all. The concept of parity in sentencing is directed to avoiding disparity in sentences between co-offenders whose circumstances are equal – see e.g. Lowe v R (1984) 154 CLR 606 at 609. The concept of parity is not directed to making comparable or roughly equivalent the sentence imposed on an offender convicted on one charge with that imposed on a co-offender convicted of an appreciably different and lesser offence, whether that circumstance be due to insufficiency of evidence, actual or perceived, the fact that the prosecuting authorities have come to some arrangement with that offender or for some other reason – c.f. R v Watson (unreported, CCA, 25 February 1992). Indeed, there is a certain incongruity in the suggestion made in this case that the Respondent may experience a justified sense of grievance because of the disparity between the sentence imposed on him and the lesser sentence imposed upon Agyris. True it is that, if one believes the Respondent, Agyris introduced the Respondent to the conspiracy and would seem to have participated in it for the same period as the Respondent and, by comparison with that criminality has been dealt with lightly, but the duration in Agyris’ imprisonment flows in no little measure from the extent of his co-operation with the authorities – an extent of co-operation which the Respondent, for some time at least, spurned – and which resulted in the charge against Argyris being appreciably less serious than the charge preferred against the Respondent. The Respondent cannot be awarded, under the guise of parity, the consideration which Argyris received for his co-operation.

135 It follows from what I have said above that I regard the sentence imposed on the Respondent as manifestly inadequate and so much so that this Court should interfere.

136 In my view an appropriate starting point in the determination of the sentence which this Court should impose is 40 years. Section 16G of the Crimes Act has been repealed by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act, 2002 effective from 16 January 2003. 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.

137 Nevertheless, pursuant to the discretion which exists in Crown appeals even where a sentence under appeal is manifestly inadequate, to dismiss the appeal or to impose a sentence which is lower than otherwise appropriate, I would propose that the Court, in effect, give the Respondent the benefit of s 16G. I am influenced in that regard by the fact that his offence, as has been indicated, was complete by April 2000, he was sentenced on I November 2002 and I am proposing an increase in the sentence then imposed in any event.

138 A similar approach was taken by this Court in R v Schofield [2003] NSWCCA 3 at [67-69] and [164]. See also Radenkovic v The Queen (1990) 170 CLR 623 at 632.

139 On that basis the figure of 40 years should then be reduced by about one-third, say to 27 years. Having regard to my conclusions that the sentencing judge erred in arriving at the 25% discount he allowed for the Respondent’s plea and assistance, I would increase this allowance to about 30%, resulting in a head sentence of 19 years imprisonment.

140 In light of the fact that this is a Crown appeal, I would fix a non-parole period of 13 years. Equal to 68% of the head sentence, that period is higher than the approximately 60% commonly adopted in the case of Commonwealth offences although there are grounds for thinking that that lesser percentage is more appropriate for shorter sentences than that here - see DPP v El Karhani (1990) 21 NSWLR 370 at 386, the definition of “parole period” in Crimes Act (Cth) s16, and s19AZC.

141 The other members of the Court take the view that the non-parole period should be less than I have indicated, partly in recognition of the fact that the Respondent’s sentence will be served in protective custody. That is a matter generally taken into account in the allowance made for assistance to the authorities – see R v Cartwright (1989) 17 NSWLR 243 at 255 – as in my view it should be. Taken into account in the determination of the head sentence, protective custody is therefore indirectly reflected in the non-parole period. It seems to me inappropriate to take the factor of protective custody into account twice, and to unnecessarily complicate the system of sentencing persons entitled to a discount for assistance if some judges take the allowance into account as part of that discount and others in the determination of the non-parole period.

142 In any event s16A(1) of the Crimes Act (Cth) provides that “In determining the sentence to be passed, or order to be made in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all of the circumstances of the offence”. I am satisfied that no lesser period of actual imprisonment is required by the gravity of the Respondent’s offending. Furthermore, one cannot but be struck by the vast difference between imprisonment for life or my starting point of 40 years and the 13 year period which, providing his performance is satisfactory, is the likely period for which the Respondent will be incarcerated. The disparity arises principally because of the discount upon discount upon discount which the sentencing law current at the time of the Respondent’s offending required. Sensibly s16G has, as I have indicated, now been repealed.

143 In arriving at the terms I have stated I have had regard not only to the matters to which I have specifically adverted in the course of these reasons, but also to the various matters enumerated in s16 of the Crimes Act (Cth). I do not regard it as necessary to refer to those matters seriatim. I have also had regard to an affidavit of the Respondent’s solicitor filed on 21 May 2001 detailing the Respondent’s activities and progress in prison. The affidavit indicates that the Respondent seems to be making the best possible use of his circumstances.

R v STAMBOULI
SCHEDULE

144 In R v Campillo (unreported, Kelman DCJ, 2 February 2001), the offender was convicted of being knowingly concerned in the importation of 171 kilograms of cocaine, referred to in more detail when I refer to R v Flavel, R v Gonzales-Betes and R v Meggett below. His participation in the operation had continued for most of 1988, and included leasing residential and garage accommodation, furnishing the former, flying to Lord Howe Island in an attempt to meet a yacht there, buying a trailer and in due course meeting the dinghy containing the cocaine and assisting to load it onto that trailer. In the course of these activities he had numerous conversations with co-offenders. He was sentenced to imprisonment for life with a non-parole period of 24 years. He has sought leave to appeal to this Court against the sentence imposed and the Court’s decision is reserved.

145 In Cheung Ying Lun (unreported, Badgery-Parker J, 6/8/1993), the offender pleaded guilty to being knowingly concerned in the importation of heroin. The amount involved was something less than 50 kg with a street value estimated at $75M. (It would seem to have been only 38 kg - see R v Wah and others (unreported, CCA, 13 April 1995), and R v Ng (unreported, 25 July 1991) referred to below.) Cheung was a senior customs official officer in Hong Kong and a, if not the, principal in the transaction. He was sentenced to imprisonment for life with a non-parole period of 22 years. He was 44, had a long admirable record and was regarded as of good character, apart from the subject offence which Badgery-Parker J felt was probably committed largely for the benefit of his family and out of disenchantment with the rewards he had received in his employment by comparison with those enjoyed by his wider family. Consideration was given to the fact that the defendant’s imprisonment would be served in what was, to him, a foreign country, away from his children and wife who, because of her state of health, Cheung was unlikely to see again.

146 The situation of some of the other participants in that importation, all of whom had either no, or no significant, prior criminal history was considered in R v Chan Kam Wah and others (unreported, CCA, 13/4/1995) and R v Yun Choi Ng (unreported, CCA, 25 July 1991). Badgery-Parker J had not, but this Court proceeded on the basis that Section 16G required a notional reduction from the maximum penalty of life imprisonment and imposed sentences which can be summarised as follows:-

Name DOB Involvement Sentence

Cheung Wai Man 1960 financing and handling 24 yrs; 18 yrs NPP

Ah Ting 1952 active liaison, significant link 24 yrs; 18 yrs NPP

Law Yat Kai 1954 handling in Hong Kong and Sydney 24 yrs; 18 yrs NPP

Chi Tak Leung 1961 liaised, took delivery and transported
shorter involvement, illness in jail 19 yrs; 15 yrs NPP

Chan Kam Wah 1959 similar to Chi, no illness 20 yrs; 16 yrs NPP

147 Following a trial, the offender in R v Flavel [2001] NSWCCA 227 was convicted of importing about 225 kilograms (171 kg pure) of cocaine which had been secreted in a dinghy carried on a boat sailed from the Caribbean Sea to Australia. He was regarded as a “mid-level executive”, whose role was more important than that of one Meggett (whose proceedings are referred to below) who had captained the vessel from the Panama Canal. At the time the yacht was near the Canal, Flavel had taken the yacht for some days, during which time it had been equipped with the dinghy in which the cocaine was secreted, met with Meggett on 2 occasions on islands in the Pacific and on occasions gave him instructions. Flavel was sentenced to imprisonment for life with a non-parole period of 25 years. This Court held that the sentence was well within the range of the trial judge’s discretion.

148 The offender in R v Gonzales-Betes [2001] NSWCCA 226 was convicted of being knowingly concerned in the same importation as Flavel and sentenced to imprisonment for life with a non-parole period of 22 years. From the report in this Court it appears that Gonzales-Betes also was regarded as a “mid-level” executive in the operations. In the course of dismissing her appeal against sentence Greg James J, with whom the other members of the Court agreed, said:-

“This was a carefully planned sophisticated importation in which the appellant was not the ring leader, chief operative or chairman of the board. She was, however, a person who involved herself early and whose activities seem to be such as to be essential to the operation of this small group of criminals bringing into Australia a very large quantity of the pernicious drug for a challenge to distribution. The precise terminology describing by analogy that role, misses the point.” (It seems likely that the reference in this passage to “a challenge” is a mistake.)

149 In Kwong Yue Cheung (1997) 97 A Crim R 283, the Court of Criminal Appeal of Western Australia refused an extension of time to appeal against his conviction and sentence for an offence of being knowingly concerned in the importation of 32.41 kg (pure) of heroin. The offender had pleaded guilty to a charge of having possession of that (imported) heroin. His delay in appealing was gross, not adequately explained, and the Court said that an extension would only be granted if a substantial miscarriage of justice was demonstrated. In fact the Court saw nothing wrong with the sentence. The applicant had assisted in the delivery of the heroin to a ship in China and had come to Australia to assist in its unloading and distribution here. On its discharge in Geraldton it was placed in his car. The applicant was no higher than the third or fourth rung down in the hierarchy and this induced the sentencing judge not to impose the maximum of life imprisonment but a sentence of 22½ years with a non-parole period of 13 years. In arriving at these figures allowance was made for 2½ years pre-sentence custody. The sentence reflected also the applicant’s plea to possession, and no prior record. Section 16G is not mentioned in the report and the judge’s approach of crediting the applicant with 30 months pre-sentence custody although he had served but 20 months suggests the section had no application.

150 In Lara-Gomez (unreported, CCA, 24 April 1996) the applicant pleaded guilty to two charges of possession of cocaine reasonably suspected of having been imported. The amount involved was 77.275 kg pure with an estimated street value of in excess of $44M. The applicant came to Australia for the purpose of establishing the facilities necessary to warehouse the cocaine, took custody of it and he was also to distribute it by fulfilling orders. He was not regarded as a principal but as having a very major role. He pleaded guilty but provided no co-operation. He was 38 years at the time of sentence, had a prior good record but was not regarded as contrite. The Crown case, particularly in respect of the majority of the cocaine, was described as very strong. This Court declined to interfere with concurrent sentences of 18 years imprisonment with a non-parole period of 13 years and 6 months imposed by Studdert J. Allen J, with whom the other members of the court agreed, said that but for the applicant’s pleas of guilty, prior good record and that he was not a principal, a sentence of life imprisonment would have been appropriate.

151 In R v Law and Kuan (unreported, Ireland J, 31 March 1999) Law was convicted of conspiring between December 1993 and January 1995 to import not less than the commercial quantity of heroin. The conspiracy led during most of this period to multiple importations, the last of which contained 40 kilograms (pure). Over $500,000 was transmitted overseas. Law came to Australia on a number of occasions in the period. While here, he rented premises, was the consignee of a number of shipments, and remitted money overseas. Ireland J described him as at a senior level within the organisation, largely unsupervised and fulfilling a critical role. His was regarded as a most serious class of case and the sentence imposed was imprisonment for life. No non-parole period was fixed.

152 An appeal by Law against his conviction was allowed. He was retried, on the same charge, again convicted and sentenced by Sully J – [2003] NSWSC 952. The sentence imposed was imprisonment for life with a non-parole period of 30 years. Sully J found that the offender had, pursuant to the conspiracy, an active role in the carrying out of 3 importations but was precluded from being similarly involved in a fourth because he was refused a visa to enter Australia. One of the importations involved approximately 40 kilograms and each of the other 3 in excess of 1.5 kilograms. The offender was not a principal but could be characterised as Ireland J had described him.

153 Kuan pleaded guilty to being knowingly concerned in the importation of not less than the commercial quantity of heroin, being the last shipment. He came to Australia, rented premises and pagers, was the consignee and took delivery of the shipment, removed and re-packaged the powder that customs authorities had substituted for the heroin in the shipment and, following telephone calls, delivered the powder. Ireland J recorded that Kuan had received supervision and direction at every step but was far removed from a mere courier. His function was critical to the success of the importation. After the application of s16G of the Crimes Act, Kuan was sentenced to imprisonment for 12 years including a non-parole period of 7 years.

154 In R v Mandagi [2002] NSWCCA 57, this Court allowed an appeal from a sentence of life imprisonment with a non-parole period of 25 years and imposed a sentence of imprisonment for 27 years with a non-parole period of 19 years on an offender who had been convicted of being knowingly concerned in the importation of 225 kilograms (pure) of heroin. The offender had been the captain of a vessel, specially modified for the purpose, which had carried persons, including one Chan, involved in the importation from Hong Kong, then with the use of a speed boat carried in the vessel, picked up the heroin from near the Thai-Burma border, sailed to near North Haven on the New South Wales coast, and then unloaded the speedboat, some crew to man it, and the heroin. The offender had, inter alia, falsified the ship’s log for the duration of the voyage. He was apparently in dire financial circumstances when he went on board the vessel he captained. The ground upon which the Court interfered was parity with the sentence which had been imposed on Chan who had apparently been sentenced on an incomplete appreciation of the facts.

155 The offenders who figure in the proceedings R v Meggett (1999) 107 A Crim R 257, R v Gonzales-Betes [2001] NSWCCA 226, R v Flavel [2001] NSWCCA 227, and R v Campillo (unreported, Kelman DCJ, 2 February 2001) were involved in the importation of about 225 kilograms (171 kg pure) of cocaine which had been secreted in a dinghy carried on a boat sailed from the Caribbean Sea to Australia.

156 Meggett had, as captain, organised a crew and sailed the vessel. He was regarded as an indispensable part of the operation, more than a mere courier but short of a mid-level executive or organiser. Wood CJ at CL expressed the view that, having regard to only the objective circumstances, a sentence of the order of, prior to the application of s16G, 30 years imprisonment would have been appropriate but, in light of the subjective circumstances, plea and great assistance to the authorities, imposed a sentence of 10 years including a non-parole period of 6 years.

157 In relation to a number of earlier cases to which his Honour referred – almost all of which are referred to here – His Honour remarked,

“Although only a few of those cases involving shipments of a quantity of drugs exceeding or approaching the quantity in the present case, they do show that the sentencing range, for an offence of this kind, is particularly severe for those occupying levels of significant responsibility. Life sentences to which Section 16G does not apply, Vanit (1997) 190 CLR 378; 99 A Crim R 302 but for which a non-parole period is to be fixed, or sentences of imprisonment in excess of 25 years to which S16G does apply, are realities for those who are involved in the large scale importation of narcotics.”

158 In Mooseek (1991) 56 A Crim R 36 the appellant was convicted of a number of Commonwealth and State offences. It would seem that the State offences related to the same heroin. On each of the charges of conspiracy to import and importing heroin he was sentenced to life imprisonment; on a third charge of possession of (imported) heroin he was sentenced to 25 years imprisonment. A minimum term of 16 years which the Victorian Court of Criminal Appeal noted was not subject to remissions, was fixed in respect of these offences. The total amount of heroin involved exceeded 70 pounds (almost 32 kg.) of 30% purity. There was no appeal against sentence.

159 In R v Ng (unreported, CCA, 25/7/1991) the applicant pleaded guilty to being knowingly concerned in the importation of heroin. The amount involved was approximately 38 kg. Finding error in the original sentencing process this Court sentenced the applicant to imprisonment for 12 years with a non-parole period of 9 years. The applicant had acted in a high level executive role, the “link man” between the overseas sellers and the Australian buyers in a “massive enterprise”. He was promised a share of the heroin expected to be worth about $700,000. He had a bad record including drug trafficking and was not regarded as contrite. The Court said that leaving aside the applicant’s guilty plea, his past and future co-operation with the authorities (which had been and was expected to be substantial) and the circumstances of his confinement, and having regard only to the objective circumstances, the case was one which warranted the maximum penalty. Taking the view that Section 16G required that there be a reduction from the term of “life” provided for under the Customs Act, this Court proceeded on the basis that the maximum sentence permissible was 20 years and, for the factors mentioned, reduced the head sentence to the 12 years. (The importation with which Ng was concerned seems to be that considered in R v Cheung Ying Lun above.)

160 In Savvas (No 2) (1991) 58 A Crim R 174 this Court dismissed an appeal by an offender who had been found guilty of conspiring to import heroin and a second State offence of conspiring to supply it. “The appellant was deeply involved, as one of the principals, although not the leader, of an organisation which carried out one of the largest known schemes for the importation of heroin into Australia. The amount … involved was not less than 80 kg,” with a purity of 80%, ie.64 kg. The wholesale value was in excess of $17M. In respect of the first charge Hunt J sentenced the appellant to imprisonment for 25 years, including a minimum term of 18 years. In respect of the State offence he was sentenced to a minimum term of 18 years with an additional term of 6 years, the sentences to be served concurrently. A further appeal, though not based on the extent of the sentence was also dismissed – Savvas v R (1995) 183 CLR 1.

161 It may perhaps be noticed that in determining the sentence imposed of Savvas – (unreported, 28 February 1990) Hunt J seems to have been influenced to some degree by considerations of parity with the sentence imposed on another offender who, at least on the evidence available against him, was involved with a considerably smaller quantity – see R v Peisley (unreported, Hunt J, 5 September 1989).

162 In Tam (unreported, Barr J, 5 September 1997) the offender pleaded guilty, after some three weeks of trial, to a charge of conspiring to import not less than the commercial quantity of heroin. It would seem that on 5 occasions heroin had been imported. After 4 of these Tam entered Australia and then transmitted money amounting to at least $284,000 overseas. He returned to Australia at about the time of a fifth consignment consisting of about 40 kg (pure) of heroin. He was found to be engaged at the highest level of the organisation in Australia and reporting to persons overseas, to be concerned with the selling of the heroin, to have recruited at least one other senior person and performed supervisory functions. Barr J found that Tam participated for self-enrichment, took the view that Tam’s criminality was in the worst category and that the maximum sentence was appropriate. However, taking the view that Section 16G applied, his Honour reduced this to 24 years. This period was further reduced to 16 years on account of assistance. A non-parole period of 10 years was fixed.

163 In Tamayo & Martinez (unreported, CCA, 24/11/1995) the applicants had pleaded guilty to possession of cocaine reasonably suspected of having been imported. Tamayo was one of the local distributors, working on a commission basis, of cocaine for an organisation based in Columbia. The organisation had other persons in Australia who supervised the distributors. Martinez acted as Tamayo’s lieutenant. The amount of cocaine seized was 47.7 kg pure. Each applicant had pleaded guilty although in the case of Tamayo that was belated. Neither had any prior convictions. It was accepted that Tamayo was remorseful and had health problems which would add to his hardship in prison. Martinez had given assistance to the authorities. Allen J with the concurrence of Gleeson CJ and Sully J said that sentences of 14 years imprisonment with a non-parole period of 10 years (Tamayo) and of 10 years with a non-parole period of 7 years (Martinez) imposed by Studdert J were well within the appropriate range.

164 In Tan (1995) 78 A Crim R 300, the offender pleaded guilty to being knowingly concerned in the importation of 12.57 kg (pure) of heroin. He was sentenced to imprisonment for 25 years with a non-parole period of 12 years. But for an undertaking to provide assistance in the future, the sentence would have been of 30 years including a non-parole period of 18 years. Both those periods and the actual sentence reflected an undisclosed discount for past assistance. The offender may well have been a principal but the Court did not record a finding on this issue.

165 In Heeng Ung (2000) 112 A Crim R 344, this Court dismissed an appeal against a sentence of imprisonment for 16½ years, including a non-parole period of 11 years imposed on an offender who had been convicted of being knowingly concerned in the importation of not less than a commercial quantity of heroin. The amount involved was 54.5 kg (pure), valued at $14.5M wholesale and of the order of $110M at street level. The offender was not a principal, his role being to facilitate the transfer of the heroin from the wharves to premises where the heroin was unpacked. Smart AJ, with the concurrence of Ireland J said that the sentence was “a heavy one but well within the permissible range”. I said that there was much to be said for the view that the sentence was below the appropriate range.

166 R v Chan Kam Wah and others (unreported, CCA, 13/4/1995) – see R v Cheung Ying Lun (above).

167 In Wangsaimas & Ors (1995) 82 A Crim R 530 three offenders pleaded guilty to a charge of importing heroin. The amount involved was 89 kg pure with a bulk sale value of $20M and estimated street value of the order of $300M. It would have provided 1.8 to 2 million individual doses. Wangsaimas had been employed as the captain of the vessel that had brought the heroin to Australia and the sentencing judge found he willingly entered into the enterprise for a fixed sum. The other two were at least two rungs down from the most senior person in the organisation but they had been entrusted with the shipment of the drug and were to arrange and facilitate its delivery in Australia. All were sentenced to life imprisonment, with no non-parole period.

168 An appeal from this decision was allowed - see (1996) 87 A Crim R 149 - but only in respect of the judge’s refusal to specify a non-parole period. Non-parole periods of 22 years for Wangsaimas, and 25 years for the other prisoners were fixed. In a further appeal reported as Lee Vanit v R (1997) 190 CLR 378, the High Court upheld the conclusion that Section 16G did not apply to life sentences.

169 In Yook & Sung (1995) 84 A Crim R 432, the appellant Yook pleaded guilty to a charge of importing heroin. The amount was 51.4 kg (pure) and said to be the largest quantity the subject of any sentence in an Australian court. Its street value was in excess of $77M. Yook was regarded as at least “intricately and immediately involved at a level very close to that” of a principal in an elaborate enterprise on a massive scale. He was aged 36 at the time of the original sentence and had pleaded guilty. Holding that there had been error in the original sentencing process, this Court sentenced Yook to imprisonment for 24 years with a non-parole period of 18 years. These periods reflected the Court’s view that, but for Section 16G, the appropriate head sentence was one of imprisonment for life, but (erroneously) that that section precluded such a sentence.

170 An appeal by Yook against a sentence of 16 years with a non-parole period of 12 years was dismissed. He was regarded as at the middle level of the operation and a long way from the principal.

171 CARRUTHERS AJ: In this matter I have had the benefit of reading the judgment of Hulme J in draft form. I gratefully adopt his Honour’s detailed summary of the relevant facts.

172 After balancing the objective and subjective matters I respectfully agree with his Honour that the sentence imposed at first instance was manifestly inadequate and the intervention of this Court is called for.

173 I respectfully agree that an appropriate head sentence for re-sentencing purposes is nineteen years. However, I regret that I am unable to concur with his Honour’s conclusion as to the appropriate non-parole period.

174 The point of departure between Hulme J and myself in this respect is the appropriate discount for the calculation of the non-parole period. His Honour selected a figure of 68%. I prefer the figure of 63% which is the median figure in the normal range of 60 to 66%in federal offences: see R v Pang (1999) 105 A Crim R 474 at 477.

175 The factors which lead me to this view are as follows:

· The respondent is still a relevantly young man by modern standards, with an excellent and stable work record, and no prior blemishes on his character.

· Since his incarceration he has been “a model prisoner”, to use the expression of the learned sentencing judge. He has demonstrated good prospects of rehabilitation.

· The respondent will probably serve the whole of his sentence in protective custody. This is a very important factor which has been emphasised for some years at a senior judicial level.

176 In Davies and Gorman (1978) 69 Cr App R 319 at 322, the English Court of Criminal Appeal accepted that every year served in protective custody could be the equivalent of eighteen months in the general custodial situation. This view has received either express or implied approval by this Court in R v Cartwright (1989) 17 NSWLR 243 at 255; R v Astill (No 2) 64 A Crim R 289 at 294-295. It was also referred to with apparent approval by Kirby J in AB v The Queen (1999) 198 CLR 111 at 152.

177 It is appropriate that the above subjective factors be taken into account in determining the non-parole period. For this reason I propose a non-parole period of twelve years. This is one year less than the non-parole period proposed by Hulme J.

178 Accordingly, I agree with the orders proposed by Hulme J subject to the above variation in the non-parole period proposed by His Honour.

179 Since writing the above I have had the benefit of reading the judgment of Spigelman CJ in draft form. I respectfully agree with the Chief Justice that the term of life imprisonment should be reserved as “the norm” for persons at the top of the importation hierarchy, rather than those who “provide important assistance”.

180 I would therefore propose the following orders:

1. Crown appeal allowed.

2. Sentences imposed by Shadbolt DCJ quashed.

3. In lieu thereof the respondent be sentenced to imprisonment for a term of nineteen years to date from 27 July 2001 and to expire on 26 July 2020, with a non-parole period of twelve years to date from 27 July 2001 and to expire on 26 July 2013.

4. Direct the Solicitor for the Respondent to explain to the Respondent, as required by s16F of the Crimes Act, the sentence and the purpose and consequences of the non-parole period.

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Last Modified: 12/09/2003

CITATION:	R v STANBOULI [2003] NSWCCA 355
HEARING DATE(S):	22 May 2003
JUDGMENT DATE:	4 December 2003
JUDGMENT OF:	Spigelman CJ at 1; Hulme J at 6; Carruthers AJ at 171
DECISION:	Crown appeal allowed; Sentences imposed by Shadbolt DCJ quashed; In lieu thereof the Respondent be sentenced to imprisonment for a term of nineteen years to date from 27 July 2001 and to expire on 26 July 2020 with a non-parole period of twelve years to date from 27 July 2001 and to expire on 26 July 2013; Direct the Solicitor for the Respondent to explain to the Respondent, as required by s16F of the Crimes Act, the sentence and the purpose and consequences of the non-parole period.
PARTIES :	Regina Simon Stanbouli
FILE NUMBER(S):	CCA 60509/02
COUNSEL:	Crown: RF Sutherland SC Respondent: J Dailly SC
SOLICITORS:	Crown: Commonwealth Director of Public Prosecutions Respondent: Walter Madden Jenkins

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

Name	DOB	Involvement	Sentence
Cheung Wai Man	1960	financing and handling	24 yrs; 18 yrs NPP
Ah Ting	1952	active liaison, significant link	24 yrs; 18 yrs NPP
Law Yat Kai	1954	handling in Hong Kong and Sydney	24 yrs; 18 yrs NPP
Chi Tak Leung	1961	liaised, took delivery and transported shorter involvement, illness in jail	19 yrs; 15 yrs NPP
Chan Kam Wah	1959	similar to Chi, no illness	20 yrs; 16 yrs NPP