New South Wales Court of Criminal Appeal CITATION: Viera v Regina; Teehan v Regina [2006] NSWCCA 401 HEARING DATE(S): 12/12/06 JUDGMENT DATE: 12 December 2006 JUDGMENT OF: Spigelman CJ at 1; Simpson J at 55; Bell J at 2 EX TEMPORE JUDGMENT DATE: 12/12/2006 DECISION: Grant leave to appeal against the severity of sentences; Dismiss the appeals. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Code Act 1995 (Cth) Customs Act 1901 (Cth) Drug Misuse and Trafficking Act 1985 Markarian v The Queen [ 2005] HCA 25; 79 ALJR 1048 R v El Hani [2004] NSWCCA 162 R v Haidar [2004] NSWCCA 350 CASES CITED: R v Lowe (1984) 154 CLR 606 R v Sukkar [2006] NSWCCA 92 R v Tulloh (unreported), Court of Criminal Appeal, 16 September 1993 R v Wong and Leung (1999) 48 NSWLR 340 R v Z [2006] NSWCCA 342 Luis Fernando Viera (Applicant) Regina (Respondent) PARTIES: Preston John Teehan (Applicant) Regina (Respondent) Regina (Respondent) FILE NUMBER(S): CCA 2006/1728; 2006/1963 C. Craigie SC (Applicant, Viera) COUNSEL: C. Smith (Applicant, Teehan) W.J Abraham QC (Crown) The Law Practice (Applicant, Viera) SOLICITORS: S O'Connor (Applicant, Teehan) Commonwealth DPP (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1225 04/11/0788 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 18/1/06 IN THE COURT OF CRIMINAL APPEAL 2006/1728 2006/1963 SPIGELMAN CJ SIMPSON J BELL J Tuesday 12 December 2006 LUIS FERNANDO VIERA v REGINA (COMMONWEALTH) PRESTON JOHN TEEHAN v REGINA (COMMONWEALTH) Judgment 1 SPIGELMAN CJ: I will ask Justice Bell to deliver the first judgment in this matter. 2 BELL J: Luis Fernando Viera and Preston John Teehan each seek leave to appeal against the severity of sentences imposed in the District Court on 18 January 2006 following conviction for the offence of conspiring to import into Australia prohibited imports, namely a quantity of cocaine being not less than the trafficable quantity applicable to cocaine. The offence was provided by s 233B(1)(b) of the Customs Act 1901 (Cth) and s 11.5(1) of the Criminal Code Act 1995 (Cth). 3 The facts upon which each applicant was sentenced were contained in an agreed statement of facts (Viera AB 179 and Teehan AB 269). It is convenient to set out the "factual overview" from the Crown Prosecutor's written submissions (WS [19 – [31]): [19] On 16 June 2003, the Australian Customs Service intercepted a number of mail items that had arrived in Australia from Chile. The packages were detected by drug detection dogs at the Customs Sydney Mail Centre. Eleven packages were found to contain between 10 and 12 grams of white powder. The substance was later analysed and confirmed to be cocaine. [20] On six further occasions, namely 9 August 2003, 16 September 2003, 13 October 2003, 12 November 2003, 14 November 2003 and 7 December 2003 the authorities intercepted and seized further mail containing cocaine. [21] In total 131 envelopes/postcards containing cocaine were intercepted. The total amount of powder was 1,613.7 grams containing 601.6 grams of pure cocaine. [22] On each occasion the cocaine was inside envelopes with postcards. All letters displayed identical handwriting. All letters were addressed to Post Office ("PO") Boxes located in the Northern Beaches area of Sydney including Mona Vale, Narrabeen, Dee Why, Collaroy, Warriewood, Warringah Mall, Balgowlah and Spit Junction. All were addressed to fictitious names at these PO boxes. All letters were of a similar shape and size and contained a similar quantity of cocaine. All were posted from Santiago, Chile. [23] These PO Boxes were used by Teehan and Michel to receive the cocaine from Chile. In addition the investigation identified three associates of Teehan's who were responsible for making the successful applications to Australia Post to lease ten post office boxes in the Northern beach area of Sydney. [24] Recorded product from telephone intercepts detailed conversations between Teehan and Michel relating to the Australia Post PO Boxes. Other coded conversations were intercepted and recorded between Teehan and Michel and other persons engaged in the illicit drug trade. Those conversations, amongst other things, referred to the expected arrival of postal items from overseas, drug weights and prices and were related to the supply of prohibited drugs on an ongoing basis. [25] On 17 October 2003 Viera first became involved in the conspiracy. On that day he agreed to go to Chile at Michel's request to find out why the cocaine supply was not arriving in Australia as expected. Viera, a Chilean national, flew to Chile on 3 November 2003 and met with ANDREUS KEMPER, the person who had been sending the cocaine to Australia from that country. On 12 November 2003, the fifth seizure of envelopes containing cocaine was made by police at the northern shore PO boxes. There were subsequent seizures on the 14 October and 19 December 2003. The amount of cocaine found in these three seizures is the amount involved in the conspiracy count against Viera. [26] As a result a total of these three seizures, 36 envelopes containing cocaine were imported into Australia after Viera had agreed to go to Chile and involve himself in the conspiracy. All letters were mailed from Chile and were similar to the previous seizures. These envelopes were subsequently fingerprinted and police located Teehan's fingerprints on a Christmas card which was found in one of the sealed envelopes. [27] On 10 December 2003, Viera returned from Chile. [28] Teehan and Michel were arrested on 28 November 2003. On that day a search warrant was executed at Unit 10/4-6 Vineyard Street Mona Vale, where Teehan and Michel were residing. [29] While searching Teehan's bedroom the police located a number of items of interest including mail from two of the subject Post Offices and a bag containing keys to the 10 subject PO boxes from which envelopes with cocaine had been previously seized. Police also located a number of Western Union Money Transfers, which indicated approximately $19,000.00 transferred to a person by the name of Andres KEMPER in Santiago, Chile. [30] In addition sums of cash and a number of prohibited drugs were located. [31] On the 1 July 2004, Viera was arrested. On that day his home was searched. The police located a handwritten note with an e-mail address for Andres KEMPER. Inquiries revealed Viera received money from Andres KEMPER from an address in Santiago, Chile. 4 The particulars of the charge to which Viera pleaded guilty were that between 17 October and 19 December 2003 he conspired with Teehan, Kelvin William Michel and others to import a quantity of cocaine - being 747.1 grams bulk - that yielded 380.9 grams of pure cocaine. The approximate street value of the cocaine was $152,360. 5 Viera was arrested on 1 July 2004 and has been in custody since that date. He pleaded guilty in the Local Court on 6 October 2004 and was committed for sentence to the District Court. He signed an undertaking signifying his willingness to give evidence against his co-offenders. In September 2005 he gave evidence for the Crown at Teehan's sentence hearing, which involved disputed matters of fact. 6 Viera was sentenced to imprisonment for a term of six years and 11 months with a non-parole period of four years and six months. The sentence was expressed to commence on 1 July 2004. The non-parole period will expire on 31 December 2008; the balance of the sentence will expire on 31 May 2011. 7 The particulars of the charge to which Teehan pleaded guilty were that between 1 November 2002 and 19 December 2003 he conspired with Michel, Viera and others to import a quantity of cocaine - being 1613.7 grams bulk - that yielded 601.6 grams of pure cocaine. The approximate street value of the cocaine was $240,000. 8 Teehan also pleaded guilty to a count charging that between 1 November and 1 December 2003 at Sydney he knowingly took part in the supply of 4519 grams of cannabis leaf; an offence contrary to s 25(1) of the Drug Misuse and Trafficking Drug 1985 (NSW) (the DMTA). The maximum penalty for this offence is 10 years' imprisonment and/or a fine not exceeding the sum of $220,000. Teehan requested the judge to take into account the four matters on a Form 1 in sentencing him for the DMTA offence. Each of these offences was committed on the day of his arrest. The brief particulars of these offences recorded on the Form 1 was as follows: (1) Possession of four grams of cannabis. (2) Possession of 1 gram of amphetamine. (3) Possession of .4 grams of methyl amphetamine. (4) Possession of the sum of $9895 that might reasonably be suspected of being stolen or otherwise unlawfully obtained. 9 Teehan has been in custody since the date of his arrest on 28 November 2003. On 30 June 2004 he was committed for trial to the Sydney District Court. On 26 November 2004 he pleaded guilty to the Customs Act count and on 11 July 2005 he pleaded guilty to the DMTA count. 10 On 18 January 2006 Teehan was sentenced to a term of 10 years and nine months imprisonment for the Customs Act offence. The sentence commenced on 28 November 2003 and will expire on 27 November 2014. A non-parole period of six years and six months was specified. The non-parole period will expire on 27 May 2010. He was sentenced to imprisonment for a term of two years and four months for the DMTA offence. This sentence was expressed to commence on 28 May 2009 and it will expire on 27 November 2011. A non-parole period of one year and nine months was specified for this offence, which will expire on 27 February 2011. 11 The Judge sentenced the co-offender, Michel, for the Customs Act offence to 14 years' imprisonment to date from 28 November 2003. A non-parole period of eight years and nine months was specified. For the offence of supplying cannabis contrary to the DMTA Michel was sentenced to a term of imprisonment for four years, with a non-parole period of three years. This sentence was expressed to commence on 28 January 2010. 12 Before turning to the submissions advanced by senior counsel on Viera's behalf which raise a question of parity, it is convenient to refer to a number of the Judge's findings in his case and in Teehan's case. 13 At the date of the offence Viera was aged 40 years. He was born in Chile and migrated to Australia 20 years prior to the commission of the offence. He had attended secondary school and commenced, but did not complete, a university degree in Chile. He had been employed by various employers since coming to Australia. At the date of the commission of the offence he had been unemployed for about 12 months. He was married, but he and his wife had separated. He is the father of a son, aged 10 years, who was living with his former wife. Viera was a user of prohibited drugs who had commenced smoking cannabis during 2002 and had progressed from this to the use of "ecstasy". He had ceased the use of prohibited drugs some time prior to his arrest. He was in good physical and mental health. 14 Viera has a criminal record. He was convicted before the Local Court on 27 July 2001 of two offences of receiving stolen property. Sentence in each case was deferred upon him entering into a bond, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behaviour for a period of three years. He was the subject of these bonds at the date of the commission of the offence. 15 The Judge noted the contents of a number of references that were tendered on Viera's behalf, observing that the applicant was well-liked and well-respected by those who knew him. 16 His Honour found the scheme to import cocaine into Australia had been set-up by Teehan and Michel some time prior to June 2003 and that Viera had not been involved at that time. His involvement commenced on or about 17 October 2003 and continued until 19 December 2003. It included that he had travelled to Chile in order to facilitate the movement of the cocaine from Chile to Australia. While in Chile Viera arranged for the transfer of money from Teehan and Michel to the supplier. He assisted in packaging the cocaine, addressing the envelopes in which it was contained and mailing them from Chile to post office boxes held on behalf of Teehan and Michel on the northern beaches of Sydney. 17 The Judge observed that the Crown Prosecutor characterised Viera as a middleman and that Viera's counsel had not taken issue with this characterisation. His Honour went on to say: However whatever description is given to the offender's role, whether it is "middle Man" or "facilitator", the evidence reveals that the part played by the offender in the conspiracy was important and significant. There is nothing in the evidence to suggest that the offender became involved in the scheme on the spur of the moment, or as a whim, or as a result of a dare or because he was threatened or otherwise forced. Although the evidence is silent, the inference, from the street value of the cocaine imported into Australia on 12 and 14 November 2003 and on 19 December 2003, is obvious that the offender expected to receive a substantial financial reward for his efforts. (ROS 6; [24]). 18 The Judge found that Viera's plea of guilty was entered at the earliest appropriate opportunity and allowed a discount of 25 per cent on this account. 19 His Honour reviewed the evidence concerning Viera's assistance to the authorities, noting that he had first signified his willingness to provide the assistance on 23 September 2004. The offer of assistance had not been of utility in so far as the co-offender, Michel, was concerned. Michel made full admissions at the time of his arrest and indicated his intention to plead guilty shortly thereafter. Nonetheless, the applicant's offer of assistance had an effect on Teehan, who had subsequently entered a plea of guilty. 20 His Honour considered that Viera's willingness to assist the Crown exposed him to the risk of retaliation, both from co-offenders and from others within the prison system. 21 The Judge quantified a discount for the applicant's assistance to the authorities in the amount of 20 per cent. The overall discount allowed by reason of the plea of guilty and the assistance to the authorities was, thus, one of 45 per cent. 22 The Judge did not consider that either Viera's assistance to the Crown or his guilty plea evidenced contrition and this finding is not the subject of challenge. 23 The Judge found that Viera has good prospects of rehabilitation and, consistently with this finding, did not place weight on personal deterrence. His Honour considered however that general deterrence should be given significant weight. 24 It will be seen that the notional starting point for the sentence imposed on Viera was imprisonment for 12 years and six months. 25 Teehan was aged 27 years at the date of sentence. The Judge found that Teehan, who was born in New Zealand, had been raised in a loving and supportive environment. He had obtained the New Zealand equivalent of the Higher School Certificate. After leaving school he had completed courses in office work and computing. He held various jobs in New Zealand before coming to Australia. 26 Teehan commenced using marijuana in his last year at school and had experimented with other drugs. The Judge found that Teehan's use of prohibited drugs had played a significant part in his commission of the offences. 27 Prior to the commission of these offences Teehan possessed an unblemished character. His Honour found that he was a person well-liked and well-respected by those who knew him. He is a single man with no dependents who enjoys good physical and mental health. 28 The Judge found that Teehan met Viera in September 2002 and the following month he met Michel. Subsequently he became involved in the conspiracy to import cocaine from Chile into Australia. His Honour noted that during the conspiracy to which Teehan was a party seven sets of envelopes containing varying quantities of impure cocaine had been seized. In all, 131 envelopes containing a total of 1613.79 grams of bulk yielding 601.06 grams of pure cocaine, with a street value estimated at $240,400 were seized. 29 Teehan assisted Michel to obtain 4519 grams of cannabis leaf. The police became aware (by intercepting telephone conversations between the two) that a delivery of cannabis was expected from South Australia in the period late November or early December 2003. The package containing cannabis leaf was posted in Adelaide on 27 November 2003 and arrived at a post office box at Mona Vale on 28 November 2003, the same day Teehan and Michel were arrested. 30 Teehan appeared before the Central Local Court on seven occasions prior to 30 June 2004 on which occasion he was committed for trial. 31 His Honour assessed the role played by Teehan in each of the offences as not that of a principal, but as one that was "important and significant" (ROS 9). 32 The Judge allowed a 20 per cent discount for Teehan's plea of guilty. He found that Teehan had shown contrition and that he was a person with good prospects of rehabilitation who was unlikely to re-offend. For this reason his Honour did not place weight on personal deterrence but, again, he gave significant weight to general deterrence. The sentence imposed on Teehan for the Customs Act count had as its notional starting point 13 years and six months' imprisonment. Viera's application Ground one - His Honour erred in relation to arriving at a proper resolution of the requirements of the parity or disparity; 33 Senior counsel for Viera advanced as his first ground for complaint that given Viera's involvement in the conspiracy was for a period of less than three months, his Honour erred by inadequately differentiating the sentence to be imposed upon him from that imposed on Teehan whose involvement was over a lengthy period and related to a greater quantity of the drug. 34 I note the observations of Gibbs CJ in Regina v Lowe (1984) 154 CLR 606 at 609-610: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. 35 I am not persuaded there is substance to the first ground of challenge. His Honour was mindful that he was sentencing Viera as a person whose involvement in the conspiracy had come towards the end of it. Equally, it is to be observed that Viera's role in the conspiracy was a significant one including that he had travelled to Chile to facilitate the transport of the cocaine to Australia. 36 There were a number of circumstances that made it appropriate that Viera not receive the degree of leniency that was extended to Teehan. Viera was on a bond to be of good behaviour at the time he committed the offence. This was a circumstance of aggravation. Viera was considerably older than Teehan. Viera did not have the benefit of the finding of contrition that was made in favour of Teehan. Taking into account these considerations, any sense of grievance held by Viera by reason of the differentiation of only 12 months in the notional starting point of his sentence, when compared with that of Teehan, could not be said to be justifiable. I would reject ground one. Ground two - His Honour erred, in that there was inadequate allowance of the applicant's assistance to the authorities 37 A statement recording the assistance provided by the applicant, dated 19 November 2004, signed by Detective Senior Constable Gates, was in evidence at the sentence hearing. Relevant parts of that statement are as follows: 18. Before indicating the value of the information supplied by VIERA, I think it is important to note that MICHEL made full and frank admissions at the time of his arrest and he has indicated from shortly after his arrest, a plea of guilty. The Commonwealth DPP are still negotiating his plea. TEEHAN did not participate in an interview and his solicitor had indicated a plea of not guilty. 19. VIERA approached police in September 2004 and indicated that he was willing to assist them in what ever way he could in relation to the co-accused TEEHAN and MICHEL. The timing of his assistance is significant as police had recently received trial date, in relation to MICHEL, TEEHAN and VIERA. This trial date had to be adjourned so police could arrange the induced statement. 20. On the 29 September 2004, VIERA supplied an induced statement to police involved in Strike Force GRIDIRON. The statement closely followed the evidence already supplied in the brief served on him however provided no fresh information that could be corroborated. The significance of the assistance supplied by VIERA is that he has stated that he was prepared to give that evidence which then corroborates parts of the briefs against TEEHAN and MICHEL. As a result of serving the induced statement TEEHAN began negotiating a plea. At this stage an agreement has not been reached with either TEEHAN or MICHEL. 21. Most of the information supplied by VIERA downplayed his role in the conspiracy and is directly contradicted by MICHEL who made full and frank admissions when first arrested. It is difficult to find where the truth lies. I believe if tested, parts of the information supplied by VIERA may be found to be inaccurate, which I believe, may affect VIERA's credibility should he be called to provide this evidence against TEEHAN or MICHEL. 22. At this time, VIERA has not given any evidence in any jurisdiction, concerning this matter. VIERA'S inducted statement appears to have initiated negotiations with TEEHAN for a plea of guilty rather than proceeding to trial. 38 While acknowledging that Detective Gates' assessment of Viera's assistance was not entirely favourable to the applicant, senior counsel for the applicant submits that it was nonetheless significant in the impact it had on Teehan's decision to plead guilty. Accepting that this is so, in my view the combined discount of 45 per cent is aptly characterised by the Crown as being towards the top end of the range: R v El Hani [2004] NSWCCA 162; R v Sukkar [2006] NSWCCA 92; R v Z [2006] NSWCCA 342. In my opinion the challenge advanced by ground two is unsustainable and this ground should be rejected. Ground three – the sentence is manifestly excessive 39 In written submissions, ground three was articulated in this way: It is not incumbent upon an applicant to expose the mechanisms whereby an objectively clear outcome of manifest excess is brought about, but the patent errors in the present case have produced a result that exceeds what was allowable in the exercise of sentencing discretion. 40 Counsel repeated his contentions as to the degree of differentiation in the starting point between the sentence imposed on the applicant and that imposed on Teehan and the adequacy of the discount given for the assistance to the authorities. As I have stated, I am not persuaded that his Honour's reasons have disclosed error in either of these respects. 41 The maximum sentence for the offence was one of 25 years' imprisonment. The applicant was on a bond at the date of the commission of the offence. 42 Counsel referred us to the judgment in Regina v Wong and Leung (1999) 48 NSWLR 340. In that case a range of six to nine years for the offence of importing a trafficable quantity of cocaine was stated for a person who was low in the hierarchy. Counsel acknowledged that some upward adjustment was appropriate to take into account that Wong and Leung was decided before the repeal of s 16G of the Crimes Act 1914 (Cth). A further point of distinction is, as I have noted, that the role played by Viera placed him above the category of offender with which the Court in Wong and Leung was concerned. 43 Senior counsel does not submit that any matter relied upon by the applicant was not taken into account or that some irrelevant matter was taken into account or that his Honour erred in the statement of any principle. It is important to bear in mind the observations set out in the joint judgment in Markarian v The Queen [2005] HCA 25; 79 ALJR 1048 at paragraphs 24-28. The sentence imposed on this applicant of six years and 11 months' imprisonment with a non-parole period of four years and six months to my mind cannot be characterised as one that falls outside the range of sound discretion. 44 For these reasons I propose that leave be granted to the applicant, Viera, to appeal against the severity of the sentence imposed upon him but that the appeal be dismissed. Teehan's application 45 Teehan appeals against the sentence imposed on him in relation to the Commonwealth offence. No challenge is brought to the sentence imposed with respect to the offence under the DMTA. Ground one - The sentencing Judge erred in finding that the offenders imported more than 806 times the trafficable quantity of cocaine 46 This ground arises from the following passage in the Judge's reasons: "As the trafficable quantity applicable to cocaine is two grams, the offender and his co-offenders imported more than 806 times the trafficable quantity of cocaine into Australia". (ROS 5; [20]). 47 The amount of pure cocaine involved in the conspiracy was 601.6 grams. This is an amount approximately 300 times the trafficable quantity. As the Crown acknowledges, it appears clear that his Honour erred in that he took into account the impure quantity of the drug as the basis of his calculation. This ground of challenge needs to be evaluated against the Judge's earlier remarks (paragraph [17]) in which he set out the particulars of each of the seven seizures carried out by the Australian Customs Service. His Honour correctly stated the total quantity of the bulk and of pure cocaine. In these circumstances, I am not persuaded that the error - the reference to the offence as one involving more than 806 times the trafficable quantity of the drug when it was in fact some 300 times in excess the trafficable quantity - is a matter that vitiated the exercise of his Honour's sentencing discretion. I would reject ground one. Ground two – The sentence is manifestly excessive 48 In support of ground two, Teehan's counsel also referred the Court to the range to be found in Wong and Leung. He put it this way: Even assuming some upward adjustment of that applicable range given the repeal of s 16G, it is still submitted that in the circumstances of this particular case, the sentence imposed upon the applicant was manifestly excessive. This is because the applicant was a 27-year-old man of unblemished character with good prospects of rehabilitation who was contrite and unlikely to re-offend. In oral submissions counsel placed considerable emphasis on a submission that in effect the applicant was an underling in the conspiracy. 49 His Honour's finding, which is not challenged, was: Although the offender was not a principal in the offence, the offender's role in each offence was important and significant. (ROS 9). 50 In written submissions, counsel pointed to the finding that the applicant was himself a user of prohibited drugs and that this had played a significant part in his commission of the offences. What his Honour said in these respects was: The offender has abused prohibited drugs. He commenced to smoke cannabis during his last year at school. Not surprisingly or unexpectedly, he experimented with other drugs. He was using prohibited drugs at the times when he committed the subject offences. I do not have any doubt that his use of prohibited drugs has been his downfall. I do not have any doubt that his use of prohibited drugs played a significant part in his commission of the subject offences. Of course, the facts that he was using prohibited drugs at the time of committing the offences and that his use of those drugs played a significant part in his commission of the offences do not excuse or justify his commission of the offences. (ROS 1; [6[). 51 Counsel referred the Court to the judgment in R v Haidar [2004] NSWCCA 350 contending that insufficient weight had been given to the circumstance that Teehan's involvement in the offence occurred in the context that he was a drug user. In Haider James J (with whom the other members of the Court concurred) said this: [42] In support of his submissions counsel for the applicant referred to R v Selim (unreported NSWCCA 19 May 1998) and a decision of the Court of Appeal of the Supreme Court of Victoria R v Bernath [1997] 1 VR 271 especially at 275-276. [43] In R v Selim the offender had been sentenced for precisely the same offence as the present applicant was sentenced, that is attempting to obtain possession of a prohibited import (cocaine) in contravention of s 233B(1)(c) of the Act. The sentencing judge made a finding that it was the applicant's addiction to cocaine which had motivated her offence. She was using at least 3 grams of cocaine per day and she was to be rewarded for her participation in the importation of the cocaine by being given some of the drug for her own use. However, the sentencing judge said in his remarks on sentence "I do not mitigate the prisoner's criminality because she was addicted to drugs…". [44] At p 5 of the judgment of the Court of Criminal Appeal in Selim Studdert J, with whom the other members of the Court agreed, said:- "Since his Honour had found that there was a link between the applicant's addiction and her participation in this crime, that was a circumstance which, on the authorities, entitled the applicant to have her criminality regarded as on a lower level than had she been committing the offence purely for monetary gain: see Tulloh (unreported, Court of Criminal Appeal, 16 September 1993, and in particular the judgment of Hunt CJ at CL). See also R v Bernath , and in particular the judgment of Callaway JA at 275-276. To what extent a penalty otherwise appropriate should be adjusted if the offender commits the offence to feed an addiction calls for close assessment of all the relevant circumstances. However, his Honour's remarks in this case indicate that he did not take into account the applicant's particular motivation and in this respect, in my opinion, he fell into error". [45] The passage in the judgment of Callaway JA in Bernath at pp 275-276 is as follows:- "Mr Gyorffy, who appeared for the Crown before us, did not contest that it is sometimes a very significant factor in sentencing that an offender engaged in trafficking, especially at street level, in order to gain the wherewithal to satisfy his own craving, rather than purely for reasons of greed in callous disregard of the grave harm that offence does to its victims. But as McGarvie J said in R v Nagy [1992] 1 VR 637 at 640, the regard to be paid to this factor depends on the circumstances of each case. The weight to be attributed to it is greatly diminished, often to vanishing point, when one is considering operations above street level". [46] In Tulloh Hunt CJ at CL, who delivered the principal judgment, said at p 2 that a user/dealer who sells primarily only to feed his own habit is at a lower level of criminality than a trafficker for greed. [47] I do not consider that this ground of appeal should be upheld. [48] In the present case, unlike Selim , the sentencing judge did not make any finding that it was the applicant's drug addiction which motivated the offence. Even if Judge Solomon did accept or should have accepted the applicant's evidence that the applicant had entered into the drug transaction in order to pay a debt he owed to a person who had supplied drugs to him while he was addicted, this evidence would not have supported a finding of a link between the commission of the offence and the offender's drug addiction of the kind referred to in Selim and Bernath , that is that the offence was committed in order to satisfy an immediate need for drugs to satisfy the offender's addiction or, as it was expressed in Bernath , "in order to gain the wherewithal to satisfy his own craving". 52 In evidence, Teehan gave an account that prior to his involvement in the offences, he had decided to take a lengthy holiday and return to New Zealand over the Christmas period 2002/2003. He said that although he had saved up money he had overlooked the extent to which his drug usage would be a drain on his financial resources. Subsequently, during the course of the conspiracy he had obtained employment with Australia Post. The Judge found that he had joined the conspiracy willingly with his eyes wide open (ROS 7) and that he expected to receive a substantial financial reward for his efforts in furtherance of it. To my mind nothing in the discussion in Haidar supports the applicant's contention that his Honour's discretion miscarried in that he failed to give sufficient weight to the applicant's history of involvement in the use of prohibited drugs. 53 It is again appropriate to refer to the observations in the joint judgment in Markarian at paragraphs 24-28. The sentence imposed upon Teehan, taking into account his prior unblemished good character and the other favourable findings, might be thought to be a severe one. It was a sentence that reflected the Judge's view that general deterrence was to be given prominent weight. In my opinion, it cannot be said to have exceeded the bounds of discretion. For these reasons the orders that I propose are that the applicant be granted leave to appeal against the severity of the sentence but that the appeal be dismissed. 54 SPIGELMAN CJ: I agree. 55 SIMPSON J: I also agree. 56 SPIGELMAN CJ: The order of the Court as are indicated by Justice Bell. ********** 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.