Reported Decision : 140 A Crim R 403 New South Wales Court of Criminal Appeal CITATION : Regina v De Groot Van Embden [2003] NSWCCA 156 HEARING DATE(S) : 20 May 2003 JUDGMENT DATE : 16 June 2003 JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Carruthers AJ at 7 DECISION : Per curiam, application for leave to appeal granted and head sentence confirmed. By majority, (Spigelman CJ, Carruthers AJ; Hulme J dissenting) non-parole period quashed and in lieu thereof a non-parole period of seven years fixed, to date from 18/1/00 and expire on 17/1/07. CATCHWORDS : Sentencing - drug offence - attempt to obtain possession of prohibited imports (ecstasy) - appellant identified by sentencing judge as "The Australian principal of an international organisation" - 50% discount allowed for assistance to authorities - 15% discount allowed for plea of guilty - whether head sentence of twelve years manifestly excessive - whether non-parole period of eight years (ie 2/3 of head sentence) manifestly excessive. LEGISLATION CITED : Commonwealth Crimes Act 1914 s 16G Customs Act 1901 s233B(1)(c) R v Pang (1999) 105 A Crim R 474 CASES CITED : R v Schofield [2003] NSWCCA 3 R v Thomson and Houlton (2000) 49 NSWLR 383 R v X & Y (2002) 130 A Crim R 153 PARTIES : Regina v Eric Jan De Groot Van Embden FILE NUMBER(S) : CCA 60067/03 COUNSEL : Appellant - D.J. Brezniak Crown (Cth) - D.G. Staehli SOLICITORS : Appellant - I & T Solicitors Crown - Commonwealth Director of Public Prosecutions LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0327 FILE NUMBER(S) : LOWER COURT His Honour Judge Shillington QC JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60067/03 SPIGELMAN CJ HULME J CARRUTHERS AJ Monday, 16 June 2003 REGINA v Eric Jan DE GROOT VAN EMBDEN Judgment 1 SPIGELMAN CJ: I agree with Carruthers J. 2 HULME J: I agree with the conclusion of Carruthers AJ that the head sentence imposed on the Applicant should be confirmed. I agree substantially with His Honour's Reasons for that conclusion. 3 I am of the view that the non-parole period imposed by Judge Shillington should also be confirmed. 4 I am prepared to assume that the failure on the part of the learned sentencing Judge to provide any indication why he fixed the non-parole period at two-thirds of the head sentence constituted appellable error. The difference between that and the 60% bottom of the usual range is, in the case of the Applicant, one year in custody – a matter of sufficient impact to require, in most, if not all cases, some statement of reasons. 5 However, none of the circumstances of the case, including those to which Carruthers AJ referred in arriving at his decision that the non-parole period should be approximately 60% of the head sentence persuade me to that conclusion. Firstly, Judge Shillington's remarks on sentence make it clear that many of these matters were taken into account in arriving at the head sentence imposed. I do not suggest that they cannot be given further weight when consideration is being given to the non-parole period but in light of the magnitude of the Applicant's criminality, I am not inclined to do so. 6 Nor am I disposed to give great weight to the Applicant's prospects of rehabilitation or the taking of steps to overcome his history of drug and alcohol abuse. Dr Skinner's report makes it clear that the Applicant had opportunities in the latter respect prior to committing his offence and declined them. Instead he chose to participate in an importation of drugs in an amount over 30 times as great as that for which Parliament has provided a maximum penalty, after the discount pursuant to Section 16G of the Crimes Act is taken into account, of approximately 17 years. Even after all of the matters favourable to the Applicant are taken into account, the magnitude of his criminality requires no less than 8 years imprisonment 7 CARRUTHERS AJ: Eric Jan De Groot van Emden seeks leave to appeal against the sentence imposed upon him by his Honour Judge Shillington QC at the District Court, Sydney, on 19 July 2002. On 5 November 2001 the appellant entered a plea of guilty to a charge that on 18 January 2000 he did without reasonable excuse attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 (the Act) applied: see s 233B(1)(c) of the Act. The relevant prohibited imports were narcotic goods consisting of a quantity of 3, 4 – methylenedioxymethamphetamine (MDMA), which is commonly known as ecstasy, being not less than the commercial quantity applicable to MDMA and which were reasonably suspected of having been imported into Australia in contravention of the Act. 8 The weight of the tablets which contained the ecstasy was 50.75 kilograms. The net weight of pure ecstasy was found after analysis to be 16.5 kilograms. The commercial quantity of ecstasy is 0.5 kilograms (Schedule VI to the Act). The drugs had an approximate street value of $A9 million. 9 The maximum sentence for such an offence is life imprisonment and/or a fine of $750,000: see s 235(2) of the Act, 10 His Honour sentenced the applicant to twelve years imprisonment with a non-parole period of eight years, both to date from 18 January 2000, the date of the applicant's arrest. His Honour indicated that but for the assistance which the applicant had rendered to the authorities in Australia and the Netherlands, for which his Honour allowed a discount of 50%, the sentence would have been twenty-four years with a non-parole period of seventeen years. 11 The applicant is a Dutch citizen. In 1999 he was living with his wife and children in Holland. 12 The statement of facts before his Honour disclosed that on 3 October 1999 the applicant arrived in Australia from Holland on a tourist visa. He subscribed to an Optus mobile phone service 0413 039 819 under the name of Rick William. 13 On 8 October 1999, the Dutch Police Serious and Organised Crime Unit of Rotterdam, advised the Australian Federal Police (AFP) of an investigation into a Dutch based syndicate (the Dutch syndicate) believed to be involved in international trafficking in narcotics. Dutch Police believed this syndicate was attempting to arrange for an importation of ecstasy tablets into Australia. The Dutch Police identified the applicant as a member of that syndicate and the person responsible for travelling to Australia to arrange the importation of the drugs from the Australian end. As a consequence of this information the AFP placed the applicant under surveillance and commenced an investigation into the activities of the applicant and his associated. 14 On 23 October 1999, the applicant returned to Holland. On 11 December 1999 the applicant returned to Sydney accompanied by his wife and daughter and was placed under surveillance. On 18 December 1999 the applicant travelled to the Gold Coast, Queensland, with his wife and child where he stayed with one Reginald Hanan, a person who, it appeared from intercepted telephone conversations, was a friend. 15 Whilst in Queensland, and later in Sydney, the applicant made a number of telephone communications with members of the Dutch syndicate in Europe. These telephone calls were the subject of lawfully obtained telephone interception warrants. 16 The applicant and a recruited co-offender, Michael Hughes, travelled to Melbourne on 15 January 2000 where they arranged for the collection of a consignment of drugs and its transport to Sydney by courier. They supplied false identifying details to the courier. The consignment had been sent to Melbourne by the Dutch syndicate. 17 The consignment was seized on the evening of 15 January at the TNT Express depot in Kensington, Sydney, by Australian Federal Police and it was found to contain a total of about fifty kilograms gross of tablets, later analysed to disclose the equivalent of 16.5 kilograms of pure MDMA. 18 The majority of the tablets were replaced, leaving a controlled delivery sample of MDMA. The consignment was transferred to the TNT terminal at Mascot by AFP agents. The consignment was ultimately collected on 18 January from the TNT terminal in Coward Street, Mascot by Michael Hughes. This event was delayed, TNT personnel advising on the previous day that the packages had not arrived from Melbourne. 19 James Shepherd (a notorious drug dealer) and Hans Czajkowski had been organised by the applicant to arrange the distribution of the MDMA, through their contacts in Australia and they were waiting nearby in a Toyota Hi-ace van. 20 The circumstances under which the consignment was collected are important. Michael Hughes drove his hired motor vehicle to the nearby Clancy's Supermarket car park where he met Shepherd and Czajkowski and the drugs were transferred to the Toyota van under the control of Shepherd and Czajkowski. Michael Hughes then returned his hired motor vehicle to the Thrifty depot where he was arrested. Shepherd and Czajkowski were arrested in Hardy Street, Botany in the van which contained seven rolls of paper in which the MDMA was stored. The applicant was arrested shortly afterwards in Botany Road. 21 The above summary outlines the facts upon which his Honour sentenced the applicant. 22 However, it should be noted that the Crown has specifically referred in written submissions to this Court to the following aspects of the evidence which were before his Honour. 23 Firstly, the applicant was to receive remuneration at the rate of $1 per tablet, which was estimated to be $150,000 to $200,000 for his role. This arrangement was disclosed in a telephone intercept between the applicant and a member of the Dutch syndicate. 24 Secondly, the arrangement between the applicant and the Dutch syndicate was that the applicant was authorised to sell the ecstasy in Australia for whatever the appropriate market price was at the time. This arrangement was also disclosed in a telephone intercept involving the appellant and the same member of the syndicate. 25 Hughes is deceased, having died on 18 October 2001. Both Shepherd and Czajkowski were found guilty after a trial before his Honour Judge Keleman SC, the charge being in identical terms to that to which the applicant has pleaded guilty. At the time of sentence Shepherd had a substantial criminal record and Czajkowski a less significant one. 26 On 1 February 2002 Shepherd was sentenced to a term of twenty-nine years eight months and twenty-nine days imprisonment with a non-parole period of nineteen years eight months and twenty-nine days. 27 On the same day Czajkowski was sentenced to twenty-four years nine months and twenty-six days with a non-parole period of fifteen years nine months and twenty-six days. 28 Both these persons were classified as middle-men, the applicant being regarded by Judge Keleman as the principal Australian organiser of the Dutch syndicate. Shillington DCJ agreed with Keleman DCJ's categorisation of the applicant as the Australian organiser of the Dutch syndicate. 29 However, this Court quashed the convictions of both Shepherd and Czajkowski on 17 December 2002. Retrials of both men have been set down for 15 July 2003. 30 The Crown provided Judge Shillington with a helpful summary, prepared by AFP officers, of the more critical respects in which the applicant was involved in the subject importation. That document, with slight amendments, is set out below: " [THE APPLICANT] QUEENSLAND · On 18 December 1999 arrived to facilitate and organise the collection of the imported narcotics and their on-sale into the Australian community. · Received international phone calls from an overseas narcotic trafficking syndicate stating where, when and how to collect the drugs being imported into Australia. · Received international phone calls from an overseas narcotic trafficking syndicate and discussed the quantity and testing of the quality of the drugs being imported into Australia. · Received international phone calls from overseas narcotic trafficking syndicate and discussed how the drugs were packaged. [THE APPLICANT] SYDNEY · On 14 January 2000 travelled to Sydney. · Collected Hughes and flew together to Melbourne on 15 January 2000. [THE APPLICANT] (with Hughes) MELBOURNE · Rented a Budget rental truck to collect the drugs. · As 'Gibson', collected the drugs from an unidentified male. · Arranged and paid for the conveyance of the drugs to Sydney. · Provided false identifying details to the courier. · Expected the consignment to be in Sydney on 17 January 2000. · Departed Melbourne for Sydney on 16 January 2000. [THE APPLICANT] SYDNEY · Met with co-accused Shepherd shortly after arriving back in Sydney on 16 January 2000. · In the morning of 17 January telephoned the courier company demanding to know location of consignment. · Met with Hughes and drove to courier company in Mascot, again to make inquiries as to location of consignment. · Met with Hughes, Shepherd and other co-accused Czajkowski at 6/1318 Botany Road, Botany (where [the applicant] was staying) shortly after being notified by the courier company that the consignment would not be available for collection until 9 am on 18 January 2000. · On 18 January 2000 met with Hughes at 6.50 am and they drove and walked along Botany Road. · Drove, with Hughes to Botany. · Gets dropped off by Hughes along Botany Road and enters the Endeavour Hotel (close to where the consignment was transferred from Hughes' vehicle to Shepherd and Czajkowski's vehicle). .........." 31 An important aspect of this application is the discount which his Honour allowed the applicant for the assistance which he rendered to the authorities. Before I refer to that assistance, it is convenient to note the following subjective matters. 32 Certain subjective circumstances may be taken from a pre-sentence report, dated 10 December 2001, under the hand of E. Bailitis, Probation and Parole Officer, City District Office of the Probation and Parole Service. This report cautions that the applicant's background could not be confirmed. There is also a comprehensive history in the report dated 18 April 2002 of Dr Yvonne Skinner, consultant psychiatrist. 33 The applicant was born in Holland on 30 July 1961 and is the second eldest of four natural siblings. He emigrated with his parents to New Zealand when he was aged twelve, and his parents separated when he was aged sixteen. His father died in 1984 and his mother continues to reside in New Zealand. 34 The applicant described an upbringing punctuated by domestic violence allegedly perpetrated by his father (whom he described as a violent man) on all family members except the youngest child. He said that his father's violent behaviour did not emanate from alcohol use but, apparently, at times was expressed as a form of discipline. His father was said to be a mercenary soldier who often travelled to other countries. After his parents separated, the applicant resided briefly with his father until his father evicted him from his home. In 1980, the applicant came to Australia and remained here until 1982. He then went to Holland to care for his father who was seriously ill. After his father died he returned to New Zealand. 35 In 1985 the applicant married in New Zealand and seven years later moved with his family to live in Holland. He is the father of four children aged between five and fourteen years from this union. He also has a son aged twenty years from a prior relationship who resides in New Zealand. His wife and four children currently reside in Holland and they are either in a witness protection programme or their entry into such a programme is reported to be imminent. 36 Enquiries with the Department of Immigration revealed that the applicant is a Dutch national who arrived in Australia on a tourist visa which expired on 11 March 2000. The Department indicated that the applicant would be subject to a deportation order following his release. 37 The applicant left school at age sixteen without any qualifications. He informed the probation officer that his father then escorted him to an army recruitment office, but he was not accepted because he suffered from tuberculosis as a child. After being evicted from home he worked primarily at unskilled employment ranging from cleaning, working on fishing trawlers, to landscape gardening. He alleged that he owned three bars in Holland before he became bankrupt in 1997. 38 The applicant admitted to participating in the importation for financial gain. He contended that he became involved in the anticipation that he could obtain sufficient funds to re-establish himself and his family following his bankruptcy. He said that he and his wife and a child were provided in Holland with airline tickets to travel to Australia, as well as ongoing funds for survival. He admitted that he was to receive between $100,000 and $150,000 for his participation. 39 The applicant indicated that he commenced drug use at sixteen years of age and commenced narcotic use after his father died in 1984. He said that he continued to use drugs socially in Holland but that his greatest problem was alcohol abuse. He claims that after his bankruptcy in 1997, his alcohol consumption greatly increased and he suffered from depression as well as liver problems and an ulcer. 40 He attended drug and alcohol programmes in custody and consulted a prison psychologist weekly for his anxiety and depression. 41 He informed the probation officer that, as a result of his co-operation with the authorities, he remained in fear of his own welfare as well as the welfare of his family with whom he said he had not had contact for the past eight months. He said that he was prescribed antidepressant medication in custody but he ceased all medication about six months prior to the interview, to concentrate on physical fitness. 42 He said that he was approached by regular patrons of his businesses to become involved in offending behaviour. He alleged that his family remained supportive of him, although he claims that his wife was not aware of his intent when they travelled to Australia together. His co-operation with the authorities has created added anxieties for him and he claims that he is in fear of his life and the life of his family as a consequence. He indicated that his associates "are violent people". 43 At the conclusion of her psychiatric report, Dr Skinner expressed the following views: · The applicant suffers from a severe anxiety disorder (a panic disorder characterised by chronic anxiety with frequent panic attacks) which requires ongoing treatment. · He has a major problem of alcohol and drug abuse, which requires treatment. · Because he is a protection prisoner and has no family or friends in Australia, the emotional burden for him of imprisonment in Australia is high. · There is a risk of suicide which will be higher in the future if he receives adverse reports concerning his family. · He requires ongoing psychological treatment for the duration of his imprisonment. 44 I turn then to the assistance which the applicant has given to the authorities. 45 In October 2001, the applicant made a lengthy statement to the authorities implicating Hughes, Shepherd and Czajkowski. The Crown intended to call the applicant at the trial of Shepherd and Czajkowski. However, that trial commenced on 7 November 2001 and, at that time, the proceedings against the applicant had not been concluded. Thus, he was not called by the Crown. Nevertheless, in his Honour's view some credit should be given to the applicant for the preparation and giving of that lengthy statement. 46 In his Honour's view, the most significant contribution which the applicant made, by way of assistance, related to evidence which he gave in Holland in respect of a number of the senior members of the Dutch syndicate. The Crown informed his Honour at the sentencing proceedings that the evidence which the applicant gave at the trial in Holland early in 2002 resulted in the conviction of five members of the syndicate which employed the applicant to come to this country in the role which has been outlined above. 47 His Honour was also informed that a number of other offenders also received sentences in Holland as a result of the applicant's evidence. The Crown accepted that the evidence which the applicant rendered was "considerable". 48 His Honour said: "It is quite clear that drug importations of this type coming to a great extent from the Netherlands can be curtailed quite obviously by the syndicates which run those evil organisations being dealt with and being imprisoned. For that reason the prisoner has and is entitled in my view to a substantial reduction of his sentence by reason of that assistance. He is also entitled to credit for the plea of guilty which he entered on 5 November, after his arrest on 18 January of the year 2000. That plea was entered as I have said on 5 November 2001 after committal proceedings which were held on 12 and 13 April of the year 2000. The Crown's case would clearly have been a strong one against this prisoner. Nevertheless I assess the utilitarian value of his plea should entitle him to a reduction of something in the order of 15%. I take into account the fact that he will, as a result of, in particular, the assistance that he has given result in there being danger for him when he returns to Holland. There will be concern for him while in custody in this country and there is clearly concern for his family in Holland." 49 This Court was informed by counsel for the Crown that the applicant would not be called to give evidence at the re-trial of Shepherd and Czajkowski. 50 I turn then to the grounds of appeal to support the submission that the sentence was manifestly excessive particularly having regard to the absence by the applicant of relevant criminal antecedents. The first challenge was that his Honour erred in his finding that the applicant was "the Australian principal of an international organization". 51 It was submitted by counsel for the applicant that the role of the applicant was merely that of "an organiser". Like X in R v X & Y (2002) 130 A Crim R 153 at 161, the applicant "had appreciable executive responsibilities requiring skill and initiative. He was in charge of major aspects of the drug importation". However, it was contended that his responsibilities did not extend to being a principal in the organisation. 52 The argument focussed in part upon the presence, or otherwise, of the applicant at the transfer in a car park of the rolls containing the MDMA from one vehicle to another. The statement of facts (Exhibit A) in the sentencing proceedings contained a claim that the applicant supervised the delivery of the MDMA to Shepherd and others. However, it was argued that the applicant was at the relevant time not present. 53 There is no substance in this particular argument. It is clear from the evidence before his Honour that the only reason the applicant was not present at the transfer of the drugs in the car park is that he had detected an AFP surveillance officer prior to reaching the car park. Accordingly, although he warned Shepherd and Czajkowski that they were under surveillance and therefore kept away, the other two took the risk and executed the transfer of the drugs. This submission must be rejected. 54 Counsel for the applicant also drew our attention to Exhibit 8 tendered in the defence case in the sentencing proceedings which was an unsigned statement by the applicant setting out in detail what he contended was the extent of his involvement both from the Dutch end and the Australian end of the importation. Having carefully read the statement and addressed the particular factual aspects upon which the applicant seeks to rely, I am quite unable to conclude that his Honour's categorisation of the applicant as the Australian principal of the organisation was incorrect. 55 The categorisation of an offender as a principal was considered in R v X and Y, to which reference has already been made. 56 In that case Smart AJ said, at [48]: "Before the Judge the Crown submitted that X's role was more than a mere courier but less than that of a principal and that he should be categorised as the organiser of the transportation and packing of the drug shipment. I do not attach importance to labels. It is better to concentrate on what X did. X had appreciable executive responsibilities requiring skill and initiative. He was in charge of major aspects of the drug importation. It is going too far to submit, as the Crown did, that X was virtually a principal." 57 Bell J and Howie J concurred in these remarks. The extent of the present applicant's involvement in the importation was of critical importance from the Australian end and it was left to him to engage assistance and fix the market price of the drug. Whatever label one gives to him therefore the extent of his involvement and authority is clear. He was certainly indispensable to the Dutch syndicate once the drugs had arrived in Australia. 58 The categorisation by his Honour in the instant case of the applicant as the Australian principal does not, in my respectful view, require any dissent from this Court. The extent of his involvement in the importation is clear. 59 It was further submitted on behalf of the applicant that his Honour erred in that he did not allow sufficient benefit for the plea of guilty. Bearing in mind the allowance of 15% by his Honour and the fact that the guilty plea was not entered until the day set for the joint trial of the applicant and his co-accused, it cannot, in my view, be characterised as being too low. 60 It appears from the penultimate paragraph of his Honour's remarks on sentence, which I have set out above, that he may have taken into account the strength of the Crown case when determining the appropriate discount for the plea of guilty. If such were the case his Honour would, of course, have erred: see R v Thomson and Houlton (2000) 49 NSWLR 383 at 416. However, in my view nothing turns on this for present purposes. Indeed, it was not a matter raised in argument. 61 It is important now to consider in a little detail how his Honour approached the assessment of a head sentence of twelve years with a non-parole period of eight years. 62 Bearing in mind that his Honour took into account the adjustment required under s 16G of the Commonwealth Crimes Act, together with the fact that his Honour indicated that the initial starting point would be a sentence of twenty-four years (after taking into account a 15% discount for the plea of guilty) the sentence may be analysed as follows. 63 The starting point for the head sentence must have been to the order of forty-two years. A deduction of 33.1/3% to accommodate s 16G of the Crimes Act would reduce that figure to twenty-eight years. A discount of 15% to allow for the utilitarian value of the plea of guilty, would reduce that figure to twenty-four years. Finally, the 50% discount for the assistance to the authorities would reduce that figure to twelve years which was the head sentence. 64 This Court has been referred to a number of cases, one of which, namely, R v X and Y to which I have already referred, is of particular importance. These were Crown appeals heard together. Both X and Y were sentenced (after pleas of guilty) on one count of conspiracy to import prohibited imports (cocaine) being not less than a commercial quantity and one count of conspiracy to import prohibited imports (ecstasy) being not less than a commercial quantity. X was sentenced on each count to concurrent sentences of seven years six months with a non-parole period of five years. Y received concurrent sentences on each count of five years with a non-parole period of three years. Each offender gave assistance to the authorities. The offences related to one importation. The conspiracy extended over the period 5 August 1999 to 10 January 2000 and involved X, Y, four other nominated persons and various other persons who were not named. These offences under s 233B of the Customs Act rendered the offenders liable to life imprisonment. 65 It is important to note that the pure amount of cocaine involved was 7.1648 kilograms and that of ecstasy was 24.4889 kilograms, the latter comprising both tablets and powder. 66 In July 1999 two of X's co-conspirators sought to recruit X to assist with the importation into Australia of commercial quantities of narcotics including ecstasy, cocaine and speed. X subsequently agreed and shortly thereafter enlisted the help of Y to assist with the concealment and transportation of the narcotics. X received fifty thousand dollars from a co-conspirator to pay for expenses incurred during the organisation of the importation. 67 I have already referred to the passage from the judgment of Smart AJ dealing with the appropriate categorisation of X's involvement in the conspiracy. 68 As at the date of sentence X was fifty-seven years of age. On 15 December 1978 he had been sentenced to twenty years imprisonment for having prohibited imports (nearly ten thousand grams of heroin) in his possession without reasonable excuse. The non-parole period was ten years. With remissions he was released from gaol in May 1986 and from his supervision obligations as from August 1989. Apart from the subject offence he had not been involved in further criminal activity since his date of release. 69 X had given considerable assistance to the authorities and had undertaken to render future assistance. The learned sentencing Judge said that but for the assistance X had rendered, he would have received a sentence of eighteen years with a non-parole period of twelve years. His Honour allowed a 58% discount allocated as to 29% for past assistance already given and 29% with relation to continued assistance in the future. 70 With regard to the Crown appeal against X, Smart AJ said that he proposed to look at the sentences imposed in two ways. Firstly, having regard to the very serious objective criminality of the offences and the prior conviction for a serious drug offence, but taking into account all the subjective factors, other than the discount for assistance, and prior to any adjustment under s 16G, a starting point of less than thirty-five years would be manifestly inadequate. Applying the usual adjustment under s 16G, of about one third, that notional sentence was reduced to twenty-four years. Applying a discount of 58% for assistance to the authorities an appropriate head sentence of ten years is produced. His Honour proposed a non-parole period of 60% and thus a non-parole period of six years was proposed by his Honour. Bell J agreed with the orders proposed by Smart AJ for the reasons that his Honour gave. Howie J agreed with the proposed head sentence by Smart AJ but disagreed with the proposed non-parole period of five years. Howie J proposed a non-parole period of seven years six months. 71 With regard to Y, the lesser offender, Smart AJ proposed that in lieu of the sentences imposed by the sentencing Judge they be increased to concurrent sentences of seven years and proposed that the appeal against the non-parole period of three years be dismissed. Again, Bell J agreed with both proposed orders by Smart AJ. Again Howie J agreed with the proposed head sentence but would have increased the non-parole period for Y to four years. 72 When comparing the instant case with that of X, it must immediately be noted that the weight of the ecstasy which was the subject of that conspiracy was greater than that involved in the instant case. Further, X was concerned in the importation of over seven kilograms of cocaine. Added to this is the fact that X had served a lengthy period of imprisonment for a prior serious drug importation involving nearly ten thousand grams of heroin. It is also important, of course, to bear in mind that X was a Crown appeal and the instant case is an appeal by the offender against an allegedly manifestly excessive sentence. Further, that the present appellant's role in the importation was at a higher level than that of X. 73 In addition to the cases referred to in argument I have considered the large number of cases that were adverted to in the judgments of this Court in R v Schofield [2003] NSWCCA 3. 74 It is always difficult to compare cases because of the variables which are usually involved, but, nevertheless, it remains an important part of the sentencing process. Care must always be exercised, however, to ensure that the particular facts, both objective and subjective, are considered. 75 It is well established that the element of deterrence is an extremely important factor in sentencing for serious drug offences. The seriousness of the offence in the present case is reflected in the maximum life sentence which the offence carries. 76 The Judicial Commission statistics reveal a sample of 65 cases under s 233B of the Customs Act between October 1996 and September 2002, relating to a commercial quantity of ecstasy. The head sentence of twelve years places the applicant in the top 12%. Four offenders received higher head sentences than the applicant. 77 With regard to non-parole periods over the same period, there is again a sample of 65 cases. Again, the applicant is in the top 12%. The question whether his Honour exceeded his sentencing discretion when imposing the head sentence is a troublesome one. 78 However, I have reached the conclusion that, although the sentence is certainly at the higher end of the available range, it was nevertheless within the discretionary range available to his Honour. The major role which the applicant played in the importation demands condign punishment and must contain a significant deterrent element. 79 I turn then to the question of the non-parole period. His Honour dealt with the issue of the appropriate non-parole period by merely stating, "There will be a non-parole period of eight years". His Honour gave therefore no reasons why he applied 66% to the head sentence to determine, in the circumstances of this particular case, the appropriate non-parole period. 80 It is now well established that in Commonwealth offences the range of non-parole periods is normally between 60 and 66 per cent of the head sentence: see R v Pang (1999) 105 A Crim R 474 at 477 and the cases there cited. 81 The concept of special circumstances does not play a role in the determination of the appropriate non-parole period in relation to a sentence for a Commonwealth offence. As Pang points out (at 477) in any given case it would depend upon the subjective circumstances of the offender and the benefits or otherwise of offering the possibility of release on parole. 82 In the instant case there is a significant number of subjective factors which point to the setting of a non-parole period at the lower end of the customary range. They are as follows: · There are good prospects for rehabilitation. Support for this view is to be found in the report of Dr Skinner together with the high level of co-operation which the applicant has afforded to the authorities both in this country and in Holland. · There is evidence that the applicant has taken steps to overcome his history of drug and alcohol abuse. · The circumstances under which the applicant has served and will continue to serve his sentence are particularly onerous and stressful to him. The element of strict protection is accentuated by the applicant's high level of anxiety and oppressive condition. His propensity for panic attacks is also significant in this regard. · The applicant clearly suffers from continual concern and anxiety about the safety of his wife and children in Holland because of his involvement with the police in Holland and the admittedly dangerous and violent persons against whom he gave evidence. · The applicant has no family and presumably no friends within Australia and accordingly no support or comfort is available to him from such persons. 83 His Honour's apparent omission to consider these factors constituted, in my respectful view, appellable error. I am of the view that this Court should intervene so far as the non-parole period fixed by his Honour is concerned. In my view an appropriate ratio between the non-parole period and the head sentence is to the order of 60%. This would reduce the non-parole period set by his Honour to one of seven years. 84 For the above reasons I would propose the following orders: 1. The application for leave to appeal be granted. 2. The head sentence imposed by his Honour be confirmed. 3. The non-parole period fixed by his Honour be quashed. In lieu thereof that there be a non-parole period of seven years to date from 18 January 2000 and to expire on 17 January 2007. ********** Last Modified: 07/09/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.