R v van der Aar

[2001] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 298 of 2000

THE QUEEN

v.

RONALD VAN DER AAR

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JUDGES:	BROOKING, PHILLIPS and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2001
DATE OF JUDGMENT:	21 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 205

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CRIMINAL LAW – Sentencing – Importation of not less than a commercial quantity of ecstasy (MDMA) - 9,400 tablets analysed as containing 697 grams pure – Sophisticated scheme of importing from Holland in compressors – Active participation by Dutch national in Australia while here on holiday – Whether 7 years’ imprisonment manifestly excessive – Application for leave to appeal dismissed.
Customs Act 1901 s.233B (C’th).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Lincoln	Solicitor for the Director of Public Prosecutions (C’th).
For the Applicant	Mr R. van de Wiel, Q.C. (pro bono)

BROOKING, J.A.:

1. I agree with Phillips, J.A.

PHILLIPS, J.A.:

1. This is an application for leave to appeal against sentence. The applicant who was born on 2 January 1956 in the Netherlands, is now 45 years old. On 5 August 1999 he was arrested by the Australian Federal Police, with Jose Lopez and David Beck. There were committal proceedings against all three on charges under s.233B of the Customs Act 1901 of the Commonwealth, of importing into Australia, and having possession of, a prohibited import, namely the drug MDMA which is commonly called ecstasy. All three were committed for trial. On 4 February 2000 an indictment was filed containing five counts, counts 1 and 2 relating solely to Lopez and Beck and count 5 relating solely to Lopez. Count 3 alleged that on 1 August 1999 the applicant, Lopez and Beck imported into Australia not less than a commercial quantity of ecstasy and count 4 alleged that on 5 August 1999, the three of them had in their possession not less than a commercial quantity. When arraigned before the Chief Judge, all three pleaded not guilty. On 23 June, the trial was fixed to commence on 31 July.

1. On 24 July 2000 the Crown advised the accused of its intention to file over a fresh indictment containing six counts.  Count 4 was altered to allege possession on 5 August 1999 of a traffickable (instead of a commercial) quantity of the drug and a new count 5 was added alleging an attempt on 5 August to obtain possession of not less than a commercial quantity of ecstasy.  (These changes were doubtless made because the police had removed some of the substance imported before allowing a controlled delivery of the rest.)  The fresh indictment was duly filed on 31 July.  On that day, too, there was argument over applications which were made for separate trials and the exclusion of certain evidence, including the diary notes of the applicant.  The trial judge rejected these applications.

1. On 7 August a jury was empanelled and, when arraigned, the three accused pleaded not guilty, the applicant pleading to count 3, the amended count 4 and the new count 5.  On 8 August the prosecutor commenced his opening address and after the luncheon adjournment the applicant indicated that he wished to plead guilty to count 3.  He was then re-arraigned before the jury, re-pleaded and the jury returned a verdict of guilty.  No plea was taken and no verdict given in relation to counts 4 and 5 which, the prosecutor said, were presented only as alternative to count 3. 

1. On 9 August a new jury was empanelled for the trial of Lopez and Beck.  Evidence was led over six days and the prosecutor closed his case on 16 August.  On 24 August the jury returned verdicts of not guilty in relation to all counts against Lopez and Beck.  In saying that, and in what follows, I leave aside altogether count 6, originally count 5, which alleged an offence by Lopez only: that count was not considered by the jury and it was later the subject of a notice of discontinuance. 

1. On 13 and 14 September 2000 the trial judge heard a plea in mitigation by counsel for the applicant.  Evidence was called on the plea from the Dutch consul in Melbourne but, despite an intimation from the judge that evidence from the applicant might be of assistance, counsel for the applicant, after consulting her client, said that he would not be giving evidence.  On 26 September the judge sentenced the applicant to imprisonment for seven years with a non-parole period of four and a half years.  His Honour ordered that the sentence commence on 26 September, but ordered also that 418 days be reckoned as having been already served. 

1. By notices dated 20 October 2000 the applicant sought leave to appeal against conviction and against sentence, the latter on the ground that the sentence was manifestly excessive.  About a year later notice of abandonment was filed in relation to conviction and on 19 October 2001 the Registrar granted the applicant leave to amend the grounds of appeal taken in respect of sentence.  In fact there was a complete substitution of grounds which now read as follows:-

“1.The Learned Sentencing Judge erred in making a finding that the Applicant’s role equal to that of Lopez (Transcript 554.3).

2.The Learned Sentencing Judge erred  finding that the applicant did not have a lesser role than others in the enterprise and did not act at their behest.  (T553.5)

3.The Learned Sentencing Judge erred in taking the applicant’s failure to give evidence into account in reaching his conclusions (553.1).  There being in evidence material which bore on this issue.  (T508)

4.The Learned Sentencing Judge failed to/or adequately consider the isolation and hardship of the applicant whilst being imprisoned in Australia.

5.The Learned Trial Judge failed to/or adequately consider the provisions of Section 16A(2)(f), (k), (m) and (p) (Crimes Act 1914 Commonwealth), having found (T555.9) the applicant’s attachment to his family and that he had no friends in Australia and ‘your time in prison will be more onerous for that’.

6.The Learned Sentencing Judge failed to give any or adequate weight to the evidence of Mr. Newlands at (T505) as to hardship of the applicant’s pretrial detention in the sentence imposed.

7.The Learned Sentencing Judge imposed a sentence manifestly excessive in the whole of the circumstances.”

1. Applicant’s counsel argued the case by grouping these grounds into three:  grounds 1, 2 and 3 (concerned with the judge’s findings about the role played by the applicant), grounds 4, 5 and 6 (concerning the personal circumstances of the applicant and in particular the hardship to him of being imprisoned in Australia, and away from his wife and family in Holland), and ground 7 (manifest excess).  I shall deal with the grounds in the same way, but first something must be said about the circumstances of the offending. 

1. It is not irrelevant that the indictment charged Lopez and Beck (in counts 1 and 2) with importing ecstasy into Australia on 24 May and, presumably in the alternative, possession of ecstasy on 28 May 1999.  That was referred to at the trial as the "first importation" and that with which the applicant was charged, together with Lopez and Beck, as "the second importation".  There was nothing in the evidence to link the applicant with the first importation and it was no part of the Crown case that he was involved; the evidence pointed only to Beck and Lopez with regard to the importation which was alleged to have occurred on 24 May.  In the result, of course, the applicant admitted that he imported ecstasy as alleged on 1 August 1999, while Lopez and Beck were acquitted on all charges by the jury. 

1. Briefly, the events amounting to importation on 1 August 1999 were these.  On 1 August a shipment consisting of two packages originating in the Netherlands arrived in Australia by air.  According to the records of the freight company, the consignee was “David Belk” of a certain address at Fernhill.  The shipment was described as “pneumatic tools” with a gross weight of 42 kilograms.  Customs officers, who had earlier targeted this consignment, retrieved the two boxes consigned to “Belk” and, after opening one of them and removing a compressor, discovered upon examination the presence of ecstasy hidden inside.  The Australian Federal Police were contacted and they took over the investigation.  They dismantled the two compressors found inside the two boxes and removed from within a total of four plastic packages, two from each compressor.  Each bag contained about 2,250 tablets which were off-white in colour and each bag weighed about 750 grams.  Subsequent analysis of the tablets revealed that they consisted of 23.2 per cent pure ecstasy weighing in all 697.3 grams. 

1. The drugs, other than some necessary to achieve a controlled delivery, were removed by the police and replaced with an inert substance and the equipment again made good.  On 5 August, by means of a delivery van driven by a federal agent posing as an employee of the freight company, the goods comprising the consignment were taken to Geelong and delivered at the address given for the consignee “David Belk”.  Upon the driver's calling a second time, Beck answered the door and asked that the van be parked in the driveway.  Beck then took possession of the two boxes, signed “D. Beck” on the delivery docket, and upon request gave the van driver his mobile telephone number.  A short time after the departure of the van, Lopez drove up, with the applicant in the passenger seat, and backed into the driveway of the premises.  After having coffee, they loaded the boxes into the back of Lopez's vehicle and drove off.  Lopez, still with the applicant as his passenger, drove to premises in Norlane, occupied by Lopez’s mother, where the applicant and Lopez were seen unloading the car and carrying a box each into the garage at the back of the property.

1. By means of a listening device, the federal police heard noises within the garage consistent with someone attempting to open one of the air compressors and shortly afterwards they entered the garage and, through the garage, another room attached to it.  There they found both Lopez and the applicant, who were then arrested.  On the bench of the room, there was one of the air compressors which had been the subject of the controlled delivery and it could be seen that the cylinder of that compressor had been opened.  The compressor motor cowling had been unbolted and it lay on its side on the table, with the cylinder upside down next to it.  The police found two clear plastic bags of white tablets, being the bags which the police had earlier substituted.  A second cardboard carton containing the other air compressor was found in the garage itself, unopened and on the floor.  In short, the applicant and Lopez were discovered in the very act of opening the cylinders and removing their contents. 

1. As the judge said when sentencing the applicant:- 

“The importing exercise was not amateurish, it was sophisticated and planned and executed in such a way as to very likely succeed.

The cylinders contained 9,400 tablets, weighing 3,005.9 grams.  The tablets were 23.2 per cent pure, giving a quantity of pure MDMA of 697.2 grams.  A commercial quantity of MDMA is 500 grams.  So the quantity involved was 1.4 times a commercial quantity.  Its wholesale value at $20 per tablet was $188,000, and its street value at $50 per tablet, $470,000.  All of that is clear.

This quantity of this drug had the potential to penetrate deeply into the community and to cause great harm to users and others, notoriously among young people.  The courts have condemned such offences frequently and sternly and it is not necessary for me to add to the litany of condemnation.  The approach to be taken to sentencing for this offence, involving this drug, appears in Carey (1998) 4 V.R. at 13.”

1. So far I have described only the physical steps taken on 1 and 5 August to advance the "second importation", as it was called, but there was other evidence too which was said by the prosecution to link the applicant to the offence charged.  First, it was said, there was the obvious link provided by the applicant with the Netherlands from where the drugs were consigned.  Mr. Van der Wiel sought to turn this against the Crown by pointing to the fact that the first importation had apparently the same source in Holland, and it was not alleged that there was any link there with the applicant - but either way the point is scarcely a major one.  Then there was the evidence of the mobile phone and the two calls made by the applicant while the applicant and Lopez were at Beck's place, collecting the boxes on 5 August.  An uncle of Beck gave evidence that in July of 1999 he was approached by the applicant who asked him to obtain a mobile phone in his name, Peter Beck, for the use of the applicant and at his cost.  That was done and a mobile phone was made available to the applicant which, according to the records, was then used on some 20 occasions to telephone two numbers in particular in Holland between 24 July and 5 August.  It was on that phone that the applicant made two calls to the one number in Holland within a minute or so of each other, at the very time when the applicant and Lopez were at Beck’s, collecting the compressors.  The inference was justified, it was said, that these two were calls made to the consignor to acknowledge receipt of the goods.

1. Then there was the evidence of the telegraphic transfer of large sums of money to one Gezel in the Netherlands.  There was evidence of 11 such transfers on and between 2 July and 22 July 1999 (totalling $78,023.15) and each transfer was of 9, 10 or 11 thousand Dutch gilders (10,000 Dutch gilders costing about $7,000 Australian).  Two of these transfers were made by the applicant himself attending a bank at or near Geelong, and another was made by one Banovac who said that he had been acting at the direction of the applicant who had gone with him to the bank. Another of these transfers was made by the applicant's wife, another by David Beck, the co-accused, and others still by Lopez's wife and an associate of his.  This was evidence, it was said, of the applicant's immediate involvement in and about the illicit importation of the drugs.

1. In aid of this, the prosecution had the applicant's diary which was discovered in the guest room at Beck’s house, where the applicant was living with his wife and children at the time.  On one page of diary the applicant had recorded some of the transfers of money just described, totalling them from time to time (presumably as the transfers were made).  On other pages he had recorded details of, inter alia, sales of ecstasy tablets, money owing on such sales and its payment.  In short, it was said, the applicant had recorded in this diary the details of a business of selling ecstasy (its costs, its assets and its income), a business with a turnover exceeding $200,000 and in which, it was alleged, the applicant was engaged at the time.  And the conduct of this business was said to provide the applicant with his motive for becoming involved in the importation on 1 August, that motive being to re-supply his diminished stock of ecstasy.

1. After his arrest, the applicant was interviewed by the police.  He said that he was in Australia with his family for a vacation and was staying with his friend Lopez.  He admitted having sent money by telegraphic transfer to one Gezel in the Netherlands, but he claimed that he owed Gezel money which had been lent him and that he was making repayments.  (That was a lie, said the Crown, confirming that the applicant was more aware of what had been going on than he was prepared to admit.)  The applicant agreed that he had gone to premises earlier that day with Lopez to collect some boxes, which they had then taken to the address in Norlane at which they were both arrested.  He admitted having opened the boxes but denied knowing that they contained narcotics.  He also denied any involvement in the importation of narcotics.  Lopez, when interviewed, made no comment.

1. I turn now to the grounds taken in the application for leave to appeal, dealing first with grounds 1, 2 and 3.  As already described the applicant pleaded guilty to count 3 after the evidence against all three accused had been opened to the jury.  Of course as Beck and Lopez stood charged over the “first importation” as well as over the “second importation”, the prosecutor’s opening linked Beck and Lopez in relation to both.  On the plea in mitigation, the prosecutor contended that, by reason of the timing of the plea of guilty, the applicant must be taken to have accepted all that was opened to the jury.  I think that somewhat extreme.  On another view, by changing his plea to guilty on count 3 the applicant could be taken to have admitted all of the elements of the crime so charged, but only the elements.  And it is that difference which, I think, has perhaps led indirectly to the first three grounds of appeal, which relate to the findings of the judge - and in particular the findings about the part played by the applicant in the importation which was admitted. 

1. In the course of the plea, the prosecutor was careful to point out that the Crown was not alleging anything beyond importation against the applicant.  It was not, for instance, suggested that he was trafficking:  the evidence about the business being conducted by him was there for the purpose of demonstrating motive, the motive for his becoming involved in the importation with which he was charged.  As the prosecutor said:-

“He came to Australia as a tourist.  Whilst in Australia, he became involved in the importation of a very large quantity of ecstasy.  Not only was it large in terms of it being a commercial quantity, it was large in terms of the numbers of the tablets.  He was not in a situation where he had financial need.  He still had and there still was $3,000 in the account that he had deposited earlier on his stay, $18,000.  It was therefore a situation where he opportunistically became involved.”

This was put in answer to the submission that, being far distant from his family and friends, much weight should be given to the hardship that prison in Australia must occasion to him.  But it shows how the applicant’s involvement in the importation was being characterised, as "opportunistic".  For the applicant, counsel emphasised that there was no evidence that “he derived a benefit or as to what benefit he was going to get from this second importation”, save for the fact that he was getting free board and lodging from Lopez.  So far as his diary was concerned, counsel claimed that the applicant kept the records at the behest of Lopez and that, being a bookkeeper, “he took that very seriously and that he had all of the records”.  Through counsel, the applicant said that the telegraphic transfers of money were not undertaken at his behest, but at Lopez's. 

1. It was Lopez’s case at his trial that he acted at the behest of the applicant (and apparently he gave evidence to that effect) and that was Beck's case too.  Yet here was the applicant claiming, through counsel on the plea in mitigation, that he was acting at the behest of Lopez.  That put the sentencing judge in an awkward position, given that the jury had acquitted Lopez and Beck.  His Honour properly proceeded upon the footing that the case against those two had not been proved beyond reasonable doubt.  At the same time, having just tried Lopez his Honour made it plain that he could not accept Lopez’s evidence that he had been the unwitting dupe of the applicant.  And, as the judge also said, he was satisfied that the applicant was "not acting merely as a lackey of Mr. Lopez".  Addressing the applicant in his sentencing remarks, his Honour of this and other findings:-

“Beyond these findings, I am, as the President of the Court of Appeal said in Cunningham, “Left in a state of flux” as to what your real role was in the importation.  In particular, given the state of the evidence, I make no finding as to who conceived or initiated the importation, financed it, organised it and so on, nor any finding, save as appears above, as to the respective roles of yourself and Mr Lopez and others, nor any finding as to the intended disposition of the drug in Australia.”

Overall, the judge concluded, he was unable to determine that the applicant played a greater role than Lopez and equally unable to determine that he had played a lesser role.

1. It is now argued that the judge fell into relevant error in that in effect he "reversed the burden of proof" and that, contrary to his Honour's conclusion, “the Crown assertion of equality was not made out”.  To my mind this is to misunderstand what his Honour said in his sentencing remarks.  The part played by Lopez was not in issue when the judge came to sentence the applicant:  what was in issue was the part played by the applicant.  Was it less than that played by Lopez (as the applicant claimed through counsel) or greater (as Lopez said on his trial), and the judge could be satisfied of neither.  That was, if I may say so with respect, entirely appropriate and no error has been shown in that respect.  Before us Mr. Van der Wiel emphasised the need to consider only what was done by the applicant by way of importing the prohibited substance as charged, and in my view that is what the judge did.  Much of the evidence I have described went to demonstrate to the sentencing judge that the applicant had by no means been the simple innocent, keeping manual records at the dictation, in effect, of the real culprit - or (to use the judge's words) acting merely as the lackey to Mr Lopez.  It went to show the applicant's awareness of the criminal activity of Lopez and perhaps Beck, his joining in the enterprise and his active participation in it, albeit "opportunistically".  In argument on this application, Mr. Van der Wiel conceded that his client was shown to have been an active participant in the importation to which he admitted by pleading guilty, and that he was shown to have so acted with knowledge.  With that conceded, I see no ground for complaint about the judge's findings over the part played by the applicant in the enterprise - in effect the joint enterprise - in respect of which he was to be sentenced.

1. Under the rubric of this complaint about the part played by the applicant in the importation of the ecstasy, one submission was that the judge had misused the applicant’s failure to give evidence.  This, it was said, was “explained by" the evidence of Mr. Newland, the consul for the Netherlands, who was called on the plea to give evidence for the applicant about the particular hardship occasioned him by his incarceration in Victoria, including the threats he claimed to the consul had been made to him by his co-accused and his fear for his own safety in gaol, should he give evidence implicating his co-accused.  It seems to me that much of the sting in that fear must have been drawn when the co-accused were acquitted which, it must be remembered, happened before the plea in mitigation, and it does not appear to me that the applicant’s failure to give evidence - at least to the extent necessary to explain or to excuse his own conduct - was “explained by” the evidence given by the consul. 

1. Nor, I add, does it seem to me that the judge erred in having regard to the fact that the applicant himself did not go into the witness box on the plea.  During the plea, counsel for the applicant raised with the judge specifically that if his Honour “was not prepared to accept the version of facts put forward by counsel for the defendant then [he] should inform counsel accordingly”, in effect, to enable evidence to be led on behalf of the applicant.  Later during the plea his Honour made it plain that he might be assisted by evidence, pointing out specifically that the applicant bore the onus of establishing his version of the facts.  Counsel had earlier suggested that her client would give evidence if necessary, but after seeking an opportunity to speak with the applicant, counsel announced that the applicant would not be going into the box.  In my opinion no error has been shown in his Honour’s taking into account as he did the applicant's failure to give evidence.

1. The second ground of complaint, being that raised by grounds 4, 5 and 6, concerns the personal circumstances of the applicant.  It is said that his Honour made a number of significant, positive findings in respect of the applicant, including the applicant’s lack of prior convictions at the age of 44, his good character with years of voluntary work, an unfortunate childhood and upbringing, significant work history and the unfortunate loss of his farm by fire and consequent financial strain.  The judge accepted that the applicant was “very attached to [his] wife and family”, using his “earnings [in prison] to keep in contact with them”.  The judge had regard too to the fact that the applicant had no friends in Australia and found expressly that his imprisonment “would be more onerous for that”.  It was submitted that the prisoner’s isolation in this country, away from family and friends, “should be afforded significant weight in the circumstances”, but in my opinion the complaint now made that it was not given sufficient weight has not been made out and there is no more in this second head of complaint than there is in the first.  In particular I reject the submission that the judge failed to give full effect to the provisions of s.16A of the Crimes Act 1914 (Cth.), including sub-s.(2)(f), (k), (m) and (p) which were specifically relied upon by applicant’s counsel.

1. It is true that imprisonment in Australia may be more onerous for the applicant because he is away from his native country, his family and his friends; but his offence is a most serious one and, by his plea of guilty, he accepts necessarily that he will be punished in Australia for what he did in Australia.  It was after all his choice to be complicit in this importation and at the time he must have been well aware of the risk he was running and the consequence if he were imprisoned, and its effect on his family.  Mr. Van der Wiel sought to distinguish this case from those in which it has been said by the courts that those who deliberately choose to enter this country to effect a criminal purpose - such as bringing drugs into Australia - can expect little, if any, discount for the hardship occasioned by imprisonment in a foreign country, away for family and friends; for that is the necessary consequence of their being apprehended.  Yet I see no significant distinction between such cases of entering the country to achieve a criminal end and choosing, while in this country for other reason - in this instance a family holiday - to join deliberately, even if opportunistically, in a substantial, criminal enterprise.  The probable consequence of apprehension is equally obvious from the start.

1. The third ground of complaint, in ground 7, is that the sentence was manifestly excessive.  It was accepted by counsel that this ground does not admit of much elaboration:  it is largely a matter of impression.  Yet it was strongly urged that the sentence imposed was “too high for the quantity and by comparison with other sentences and does not make sufficient allowance for the condition of imprisonment which the applicant has and continues to endure”.  The lynch pin of this argument was the contention that there was “nothing remarkable about the applicant or his conduct to warrant a divergence from the sentencing level displayed in the cases provided to” the sentencing judge, this being a reference to the table supplied below and in which were listed a large number of "other like cases" of the importation of ecstasy and the sentences meted out.  Particular reliance was placed by Mr van der Wiel upon the County Court cases of Crean and Hinton[1], Cobos[2], Maimon[3] and Lim (Swee Hoc)[4] in each of which an analysis of the substance imported revealed something between 720 and 990 grams of pure MDMA.  At the lowest end, Lim was sentenced to 42 months’ imprisonment for importing 724 grams pure:  at the other end, Cobos was given six years for importing 820 grams pure.  Crean, Hinton and Maimon were sentenced to more than four but less than five years’ imprisonment for importing respectively 793 grams pure, 796 grams pure and 984 grams pure.

   [1]R. v. Crean and Hinton, 19 June 1998 (Judge Dixon)

   [2]R. v. Cobos, 4 August 1998 (Judge Anderson)

   [3]R. v. Maimon, 30 April 1999 (Judge Barnett)

   [4]R. v. Lim Swee Hoc, 8 September 1999 (Judge Pannam)

1. In contrast, counsel said, stood the cases of Carey, Campbell and Greig, those three offenders having been involved, in one way or another, in an importation of more than two kilograms pure.  Carey was sentenced to 12 years’ imprisonment, Campbell to eight and Greig to nine and a half[5].  On appeal, Carey’s sentence was reduced by the Court of Appeal to six years after a substantial discount for assistance, both past and promised, to the authorities[6].  In giving reasons for that decision, the President opined that, before allowing a discount for co-operation, ten years was a more appropriate starting point than twelve years, the latter being described as "manifestly excessive"[7].   In reliance upon these figures, applicant’s counsel submitted that seven years was simply "out of kilter" with the sentences being handed down for this offence, emphasising that there was nothing in the particular circumstances of this case which could serve to justify such "divergence" to the prejudice of the applicant. 

   [5]R. v. Grieg and Campbell, 18 September 1998 (Judge Hassett) 

   [6]R. v. Carey [1998] 4 VR 13 (13 November 1997)

   [7]At 19.  (Batt, JA and Kenny, JA agreed in the judgment of the President.)

1. An argument based upon sentences handed down in other cases is, of course, fraught with difficulty:  every case depends upon its own facts and, in making the comparison, often far too little is known about the personal circumstances of the offender, let alone the particular circumstances of the offending.  Yet in this instance even what is known is sufficient I think to establish significant points of distinction.  In Crean and Hinton, Cobos, Maimon and Lim, the offenders were all in their 20’s, and three of them in their early 20’s.  All, we were told, were couriers in the sense that they were carrying the prohibited import into Australia:  none was married or with children and none, counsel said, had lived to 44 without previous convictions.  This last simply seeks to turn to advantage the fact that the offender in this case was not comparatively youthful, but, whatever be the strength of that argument, there is significant distinction in the description of the offending.  The applicant was not simply the means of transport; he participated directly and actively in a sophisticated scheme of importation which, whether it originated with him or not, was one to which he lent his aid. 

1. Moreover, so far as the case of Carey is concerned, we have a reported decision[8] and even the most cursory examination of the reasons for judgment show marked differences in the personal circumstances of the offender there when compared with those of the applicant.  With all due respect to those who take a different view, it seems to me that consideration of Carey confirms the view that a comparison of sentences meted out for what are called “similar offences” is unlikely to be persuasive.  That point is reinforced by the case of Zehavi, a 24 year old who imported ecstasy in an amount of 45.24 grams pure.  He was sentenced to four years’ imprisonment and his appeal against that sentence was dismissed by the Court of Appeal on 13 October 1998[9], the court including two of the judges who had been party to the decision in Carey.  Applicant’s counsel submitted that the amount imported must be one of the principal criteria for sentencing for this offence, but Zehavi, when compared with the other cases mentioned, shows that it can be but one of the many factors relevant in the exercise of the sentencing discretion.  If Zehavi were to be the touchstone here and the amount imported the principal criterion in fixing an appropriate sentence, plainly seven years for importing 697 grams pure is not “out of kilter”.  I do not say that a comparison of other sentences may not sometimes be of assistance, but counsel's argument gave too much weight to what is, at the end of the day, only one factor.  (In as much as counsel relied strongly upon Carey, I simply observe that, as has already been seen, the sentencing judge made reference to that decision expressly in his sentencing remarks.)

[8][1998] 4 VR 13

[9]R. v. Tzachi Zehavi [1998] VSCA 81 (Winneke, ACJ, Brooking and Batt, JJA)

1. The ultimate question must be, of course, whether the sentence, as it stands, can be said to be manifestly excessive, given the circumstances of the offender and the circumstances of the offending - and not overlooking, of course, the maximum penalty prescribed by Parliament for the offence, which in this case is imprisonment for life.  This was a sophisticated operation and the applicant admits responsibility for the offence charged.  He admits that he participated in the importation which was carried out in conjunction with others, including Lopez and Beck (whether with or without their full understanding).  The quantity involved was significant and I cannot conclude that a seven year sentence, even for a man with no convictions and after a plea of guilty, is outside the range of sentences reasonably open to the sentencing judge in the proper exercise of his discretion.  No separate complaint is made about the non-parole period which, it might be thought, is relatively low.  Having regard to all that was put on the plea in mitigation in the applicant’s favour, but at the same time having regard to the seriousness of the crime and the circumstances of the offending, I reject the submission the sentence imposed was manifestly excessive.

1. For these reasons I would dismiss this application for leave to appeal against sentence. 

VINCENT, J.A.:

1. I agree that the application should be dismissed and for the reasons advanced by Phillips, J.A. in his judgment.

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