District Court New South Wales Medium Neutral Citation: R v Kostopoulos; R v Smith; R v Treffiletti [2014] NSWDC 360 Hearing dates: 20/03/2014 Decision date: 23 May 2014 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Kostopoulos: - Sentenced to 5 years and 7 months imprisonment with a non - parole period of 2 years 11 months. Smith: - Sentenced to 4 years and 10 months imprisonment with a non - parole period of 2 years and 10 months Treffiletti: - Sentenced to 1 year and 3 months imprisonment, to be released forthwith upon entering a recognizance yourself in the sum of $500 for a period of 2 years. Catchwords: Criminal - Sentence, attempting to possess commercial quantity of unlawfully imported border controlled drug, early pleas of guilty, role of the offender. Legislation Cited: Crimes Act 1914 Cases Cited: R v Callaghan (2006) 160 A Crim R 145 Chow v R [2007] NSWCCA 225 Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] 79 NSWLR 1 R v Henry (1999) 46 NSWLR 346 GAS v R [2004] HCA 22 Jimmy v R [2010] NSWCCA 6 R v Lee [2007] NSWCCA 234 R v Olbrich [1999] HCA 5 R v Engert (1995) 84 A Crim R 67 R v Thomson and Houlton [2000] NSWCCA 309 Category: Sentence Parties: Director of Public Prosecutions Leum Kostopoulos – Offender William Smith – Offender Carmelo Staluat Treffiletti - Offender Representation: Counsel: Mr S Mayhew - Crown Mr Boulten SC - Mr Kostopoulos Ms Moody - Mr Smith Mr Nicholls - Mr Treffiletti File Number(s): 2012/284936; 2012/284956; 2012/124190 SENTENCE 1. HIS HONOUR: Leum Kostopoulos pleaded guilty at the Local Court, and again in this Court, to a charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely amphetamine in Sydney between the dates of 20 July 2012 and 11 September 2012. 2. The particulars in the Court Attendance Notice refer to what is described as consignment 1 and the attempt by the accused in the context of the matters set out in the Court Attendance Notice to collect a package that was known by the Customs officials and AFP to contain 1.3148 kilograms of pure amphetamine. I need not repeat the particulars themselves, I will deal with them in the facts. This charge also included his attempt to possess consignment 2, a further package to which I will refer to in the facts, which contained 1.0481 kilograms of pure amphetamine. 3. Mr Smith's charge, to which he pleaded guilty at the Local Court and in this Court, is more simply stated. He admits his guilt to an attempt to possess a substance, being a border controlled drug, namely amphetamine, the quantity being a commercial quantity, the commercial quantity being the commercial quantity relevant to the second consignment particularised in the Court Attendance Notice relating to Mr Kostopoulos, that is 1.0481 kilograms of pure amphetamine. 4. Mr Treffiletti pleaded guilty to a charge of aid and abet an attempt to possess a commercial quantity of unlawfully imported border controlled drug, namely amphetamine. His aiding and abetting the attempt to possess the unlawfully imported border controlled drug is particularised as relating to the two consignments that are referred to in the Court Attendance Notice relating to Mr Kostopoulos. 5. For reasons not explained to me, the consignments particularised in the Court Attendance Notice relating to Mr Treffiletti are described as consignment 4 and consignment 5, but in fact those consignments are consignments 1 and 2 as they are referred to in the other Court Attendance Notice. As far as I am aware, from the facts, there is no suggestion that Mr Treffiletti has been involved in consignments other than those particularised in the Court Attendance Notices. 6. The maximum penalty for each offence to which the offenders pleaded guilty is life imprisonment and/or a fine of $825,000, and I accept, that the maximum penalty provides a yardstick and a basis for comparison between the matter before the court and what the Crown describes as "the worst case". I would add perhaps the words, "and the worst offender". The maximum penalty clearly indicates, that the crimes to which the respective prisoners have pleaded guilty are very serious offences and I have taken into account the matters that are averted in this regard in the Crown's written submissions at paragraphs 9 and 10. 7. The two consignments that I have referred to, arrived in Australia from France on 4 September 2012 and 6 September 2012. The roles of the offenders are, it might be said however, somewhat different. An important difference to bear in mind in the context of the various submissions made about the respective roles, particularly by Mr Kostopoulos and Mr Smith, is that Mr Smith is to be sentenced only in relation to his responsibility respect of the second consignment standing alone. 8. His charge alleges the commission of the offence between 12 September and 13 September 2012, although it is to be pointed out that the facts reveal his involvement before those dates. 9. In relation to the particulars relating to Mr Treffiletti, reference is made to the role of Mr Jordan Maharaj. When I heard the evidence in relation to this matter and the submissions over two months ago, Mr Maharaj was to face his trial. Whether his trial proceeded and what happened in that regard, I do not know. The matter was heard before me the week before I was to travel to Orange for three weeks and unfortunately for the prisoners I had five weeks of leave which required me to leave the jurisdiction. So, regrettably the sentencing of the three offenders has been delayed inordinately through no fault of theirs. I hasten to say, really through no fault of mine. But if I had remained in Sydney, of course I would have sentenced the offenders, at least the following week, if it was possible so to do. 10. The three offenders, as I have mentioned, pleaded guilty at the Local Court. It was submitted by each of them and conceded by the Crown that a discount should be given to recognise the facilitation of the course of justice by those pleas of guilty. I do not wish to dwell upon the various written submissions that were made by the parties or oral submissions that were made, particularly on behalf of Mr Kostopoulos in this regard. But to my mind the matter is summed up, notwithstanding the fact that a Court has a discretion not to grant a discount in sentencing for Commonwealth matters by the judgment of McClellan CJ at CL in the Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] 79 NSWLR 1, particularly at [263] where his Honour said; "An early plea of guilty will normally attract a discount of 25%, it will attract a lesser discount when it comes later in the pre-trial or trial process." 1. His Honour cites, of course, the guideline judgment of Thomson and Houlton, which is strictly only concerned with State matters and the "utilitarian value" of the plea of guilty. But in De La Rosa, involving a consideration in a very extensive manner of sentencing for importation offences of commercial and trafficable and marketable quantities of drugs, it was recognised that a discount for the plea of guilty is appropriate and in that case a discount of 25% was given upon the otherwise appropriate sentence. That will be the case here for each offender. 2. There are other contextual background matters that need to be taken into account. As I understand the matter Mr Smith and Mr Kostopoulos have both been in custody since their arrest on 12 September 2012. Mr Smith's sentence, however, cannot date from that date because Mr Smith, at the time of the commission of the offence to which he has pleaded guilty, was the subject of parole. This was not a matter specifically addressed, as I remember it, two months ago. But in the discussion that has occurred today, I have referred counsel for the accused and the Crown to the particulars in the custody record which refer to the fact that the offender had a balance of parole of one year four months and nineteen days to serve, his parole being revoked in October 2012. Obviously I would not impose a sentence entirely accumulative upon the balance of parole, but in the context of principles set out in cases such as the decision of the New South Wales Court of Criminal Appeal of Callaghan from 2006, particularly the judgment of her Honour Simpson J, I have determined that the sentence to be imposed upon Mr Smith should commence part way through what has been served as the balance of that parole. 3. I bear in mind, of course, the need to be cautious in this regard because committing serious offences whilst on parole for serious offences, is a matter of substance to be considered in the sentencing process adverse to the prisoner. As Simpson J pointed out in Callaghan judges should be careful not to "double dip" in that regard. 4. With regard to Mr Kostopoulos, as I have already pointed out earlier in today's proceedings, he committed the offence with which I am concerned whilst on bail for an offence for which he was subsequently sentenced to a term of five months imprisonment. Those other offences, of course, were unrelated matters and are considerably minor matters by comparison to the matter with which I am concerned now. The sentence imposed at the Local Court has been served by the prisoner in circumstances I will outline later. Of course, again, the prisoner should not necessarily receive a sentence from me that is entirely accumulative upon the five months imposed by the magistrate, albeit that the magistrate's order did not date from 12 September, but dated from a later date. 5. I have determined that the sentence I impose should date from 12 December 2012. That is recognising three months of custody referrable to the offending for which the offender received the five month sentence. 6. In relation to Mr Treffiletti, he was in police custody on two occasions and I am prepared to give him in the ordinary manner recognition of two days in custody. But ultimately, in the context of the orders I propose to make, those matters are of no great moment. Of course, in fixing the non-parole period, as I am required to do in respect to the sentences for Mr Kostopoulos and Mr Smith I have regard to the various decisions, particularly cited in the written submissions that I have been provided, such as the High Court judgment of Hili and Jones, and of course, earlier High Court judgments of Power from the 1970s and the judgment in Bugmy, not the recent Bugmy decision, but the decision on appeal from the Victorian Court of Appeal. 7. In relation to Mr Treffiletti, it is an important contextual matter to take into account that the offender was arrested in September and interviewed but then released. He was not re-arrested until April 2013. It is clear, and the Crown fairly concedes that it is so, that Mr Treffiletti would have been, over that period of time, in a considerable state of uncertainty having regard to the realisation that he had been arrested in relation to his alleged role in the attempt to possession imported prohibited drugs and knowing, of course, that other people had been arrested and charged and some of whom were in custody, such as Mr Kostopoulos and Mr Smith. Mr Maharaj had likewise been charged in the intervening period of time. 8. The prisoner, Mr Treffiletti, was 18 years of age at the time of his arrest in mid-September 2012. He was born on 28 June 1984. He had thus just turned 18 years of age. 9. Mr Kostopoulos, as I understand it, is a young man himself. He was born on 26 September 1992 and thus was 19 years of age at the time of the offending, about to turn 20 years of age. 10. Mr Smith, as I understand it, was born on 28 September 1984 and thus, at the time of his arrest, was 27 years of age, about to turn 28. 11. There were two sets of agreed facts produced in relation to the matter, one set of facts related to Mr Kostopoulos and Mr Treffiletti, the other set of facts related to Mr Smith. 12. I appreciate, of course, there are a number of authorities such as the High Court judgment in GAS and the Court of Appeal judgment of Chow that make it clear that a sentencing judge is not bound to accept the facts as agreed between the parties but in this matter there appears to me, save for some very minor matters, to be nothing about which the court should second guess what has been agreed. 13. Of course, in sentencing an offender a judge is not entitled to take into account matters that would increase the criminality of the offender in respect of matters which are disallowed by the prosecuting authority. This is a matter about which I must be particularly careful in relation to Mr Smith. Mr Smith, of course, as I will point out, comes forward with far less favourable subjective circumstances that Mr Kostopoulos and of course, Mr Treffiletti, who had no prior criminal convictions. But as I have earlier pointed out, his involvement in what could be called the criminal enterprise with which I am generally concerned, is limited, albeit, that it is argued that his role in that limited respect is greater than that of Mr Kostopoulos. 14. It is clear on the facts, common to all three accused, that the importation of the amphetamine particularised in the Court Attendance Notices, was organised by persons other than the three prisoners. Mr Treffiletti has absolutely no idea as to who the organisers are and I accept the evidence he has given about his role and his knowledge of relevant matters in these sentencing proceedings. 15. As to the issue of their knowledge of the relevant "organisation", if such a thing exists, concerned with the importations, I am not assisted at all by Mr Smith or Mr Kostopoulos. They did not give any evidence in this Court and provided no reliable version to the investigators. 16. I point out that Mr Treffiletti, when first arrested, gave a lengthy interview to the police and endeavoured, as I understand it, to provide the police as much as he knew about his own involvement and also provided further information when rearrested. It is correct, as the facts reveal, that he indicated prior to his second arrest what appeared to be matters that might, on one view of it, increase his culpability, but which are explained by evidence he has given in this court. 17. I accept his evidence in this court that in one respect, particularly in relation to an area of information set out in the Crown bundle, the information he was relating at that relevant time was information provided to him by others or by, particularly, Mr Maharaj and was information not within his direct knowledge. 18. This is a bizarre case in some respects because the facts reveal, without telling me much more, albeit beyond what was hinted at in the submissions of Mr Treffiletti, that Mr Maharaj prior to the arrest of any of the offenders had gone to a police station, a State police station, to talk about the character of the importation and the enterprise in which he knew he was involved in, at least to some extent. It seemed on the face of it that whoever he spoke to at the police station fobbed him off. But perhaps, as is hinted in one of the written submissions, he put the authorities on notice of relevant matters that led to the arrest of the offenders. 19. Mr Treffiletti was recruited by Mr Maharaj to open up a post office box in his own name, which he did at Five Dock. Mr Maharaj opened a post office box in his own name at Haberfield and a friend of theirs, Mr Milano, opened a post office box at Ashfield. As far as I am aware Mr Milano has not been charged with any offence. 20. Mr Treffiletti was to be paid ultimately $500 for his involvement in his aiding and abetting the attempt to procure each of the two consignments. Although what he did in relation to each of the consignments was somewhat different. The prisoner Treffiletti did not know at the time that he agreed to open up the relevant post office box, that this was to be done for the importation of a particular drug or a particular quantity of drug. 21. As I said earlier he, at that time, was very young. He had no prior criminal convictions and there is absolutely no evidence that he had any direct connection with any organised criminal elements, if there be such in this matter, connected to these drug importations. He was, to be frank, and I do not mean this unkindly of him, a youthful gormless cipher. 22. The first of two consignments of liquid amphetamine, that I have referred to, arrived from France on 4 September addressed to the post office box at Five Dock. That contained 1.314 kilograms of pure liquid amphetamine concealed in wine bottles. The other consignment arrived on 6 September 2012 in Australia addressed to Mr Maharaj at the post office box that he had opened at Haberfield. 23. Mr Treffiletti had opened the post office box at Five Dock on 20 July 2012 and had been told that expensive wine was to be imported by Mr Maharaj. He opened the box at the request of Mr Maharaj. He ultimately collected a retrieval slip for the consignment addressed to that post office box and he signed the retrieval slip and provided that to Mr Maharaj who ultimately gave it to Mr Kostopoulos to collect the package. 24. Mr Kostopoulos had been told by Mr Maharaj that Mr Treffiletti could not pick up the package and thus Mr Kostopoulos went to the post office in early September with the retrieval slip, handed it over. He surprisingly, I suppose in one sense, supplied his own identification by providing his passport to retrieve the parcel. Clearly his identity was then established, bearing in mind that the AFP and the Customs officials were aware of the contents of the package, having intercepted it. 25. He was told the parcel could not be found so he left the post office box. Unknown to him the consignment had been intercepted and identified as containing the liquid amphetamine. It is said that that liquid amphetamine had a street value of approximately $1.315 million and a wholesale value of approximately $409,500. 26. Although the agreed statement of facts refers to a conversation between Mr Smith and Mr Kostopoulos on or about 6 September, I am not satisfied in context that the conversation has anything to do with the first consignment. In fact in the context of the pleadings and the other evidence in the case, I am not satisfied beyond reasonable doubt of Mr Smith's involvement with the first consignment at all. 27. Part of the background of this matter too, is that Mr Smith and Mr Kostopoulos were said to be members of the Rebels 'Motorcycle Club', if I could give it that title. Mr Kostopoulos was a 'nominee'. This is the subject of some evidence by his parents, about which I will speak shortly. Mr Smith had been a full member for some years and had an association with the club over an extended period of time. 28. It was submitted, based upon some hearsay representations made by Mr Smith, that he no longer was involved with the 'Rebels', as at September 2012. Ultimately, as the evidence in the case unfolded, there is really nothing about his association with that particular organisation that sheds any real light upon the circumstances of the importation or the attempt by him and Mr Kostopoulos to possess the methyl amphetamine. It provides an explanation for why Mr Kostopoulos and Mr Smith may know one another, but really nothing more. 29. Of course one can have one's suspicions about the matter, but there is absolutely no cogent evidence that the club itself or other members of the club were directly concerned with the importation or were anticipating to be beneficiaries of the importation. Ultimately nothing flows from the association of the offenders with the club and it might be thought that it does not do them much credit, but it is not a matter that reflects adversely upon their character. 30. It goes without saying, of course, however, that both the prisoners had an opportunity to provide further information in this regard. Of course, no adverse finding can be made about their exercise of their right to silence in these sentence proceedings but, of course, they have not provided any information based upon their knowledge of relevant events that might fill gaps in the narrative which the court knows full well that they could fill. 31. What is clear from the facts, however, is that Mr Kostopoulos became involved when a man referred to as Chris Curcuruto, who clearly had an involvement in the preparations for the importation, was gaoled on or about 32. 26 July and could no longer participate. It would appear, as I understand the evidence, that Mr Kostopoulos was recruited or asked to perform the role that he did because Mr Curcuruto could not do so. Whether it was by Mr Curcuruto or someone else, I do not know. 33. Mr Curcuruto's role is the subject of particular identification by the Crown in its written submissions which were most helpful and there is really no dispute by that by learned senior counsel, Mr Boulten, for Mr Kostopoulos in his submissions. Essentially, his role was to liaise with Maharaj who had organised Mr Treffiletti and Mr Milano and later liaised with Mr Smith about picking up the first consignment and the second consignment of wine bottles, with the role of passing them on to others. 34. The second consignment of wine, which contained the liquid amphetamine when it was imported at least, was passed on by the prisoner to Mr Smith and I accept the fact that, to some extent, he took directions from Mr Smith in relation to that matter. 35. If one was to categorise Mr Kostopoulos' role, although labels are sometimes unhelpful, he was responsible for preparations for the consignments that he picked up, albeit that he ultimately did not pick up either the first or second consignment himself, and he was to perform the role of a 'warehouser' in ensuring that the relevant prohibited drugs were delivered to those who were responsible for what I assume would be their ultimate distribution. The drugs were not imported into Australia for altruistic or medical purposes. 36. The second consignment with which Mr Smith was concerned solely, as I said earlier, arrived on 6 September. This consignment was picked up by Mr Maharaj on 11 September 2012. He held onto the package and, whilst it was in his custody, spoke to Mr Treffiletti about matters relating to the package in his possession. During this series of conversations I am satisfied Mr Treffiletti must have asked him what was in the wine bottles. It was the fact that after the bottles had been picked up Treffiletti and Maharaj were involved in travelling around doing innocuous tasks, such as going to soccer training. The consignment, as valuable as it was, for a period of time was placed on the floor of the rear of the motor vehicle they used. During this trip Mr Treffiletti asked Mr Maharaj what he was going to do with the consignment or the package and Mr Maharaj told the prisoner Treffiletti that he was going to give it to Mr Kostopoulos who he referred to as "Lee", which is short for the prisoner's name of Liam. 37. Later that evening, after soccer training, Mr Treffiletti picked up his friend from the park, took him to a meeting with Mr Kostopoulos where Mr Kostopoulos took possession of the second consignment. It was then that Mr Kostopoulos made a call to Mr Smith on Mr Maharaj's phone. Later that night Mr Maharaj told Mr Treffiletti that he was going to tell Mr Kostopoulos that they were not going to be involved any further. 38. A number of these conversations are recorded in part because of a listening device that was hidden within the consignment intercepted by the AFP. Hence the charges of attempting to possess the relevant border control drug. I have had regard to the various details of those conversations. 39. The facts reveal that on 12 September 2012 Mr Kostopoulos opened up the second package and placed the wrapping that the consignment was in in a garbage bin outside his residence. He was then, of course, subject to police or AFP surveillance. Later the prisoner was seen in company with Mr Smith. He was carrying bottles of wine. Mr Smith inspected the bottles and then, in company with Mr Kostopoulos and another person, travelled from Mr Kostopoulos' residence to Mr Smith's residence in Harris Street, Ultimo. The wine bottles were ultimately stored in a lock up garage. 40. All the accused were arrested that day. There were various items found in the search of Mr Smith's property, a sum of cash, some false documents, mobile phones and the like. The prisoner Smith was in possession of some other drugs; matters of no significant moment in this case. 41. Mr Kostopoulos gave a limited account but made no real admissions. Treffiletti was extensively interviewed. When Mr Smith was arrested the wine bottles that had been delivered to him or taken by him were recovered. He told the police about steroids in his possession, he said they were for his personal use. He did not participate in a record of interview. He denied knowledge of the wine bottles and the bag in which they were found, falsely stating to the AFP that he had not been in the lock up garage that day. 42. With regard to Mr Smith by reference to the separate agreed statement of facts, much of what I have already outlined comes from that statement of facts and the joint statement of facts in relation to the other accused. 43. The street value of the methyl amphetamine that was found in the bottles in his possession is said to be 1.039 million dollars. There is a wholesale value of approximately $324,000. 44. The summary of Mr Smith's conduct, as alleged by the Crown, was essentially that he made arrangements and instructed Kostopoulos to have the post office box checked to arrange for Maharaj to deliver the consignment. He also asked Mr Kostopoulos to obtain a measuring device for him. 45. Mr Kostopoulos liaised with him when he had possession of the consignment taken from Mr Maharaj. Mr Smith also took delivery, as I said, of the wine bottles and stored them in his garage, presumably of subsequent distribution by himself or others and, of course, there was the contact with Mr Maharaj to which I referred. 46. Mr Kostopoulos has a minor criminal history. He has some appearances in the Children's Court for acts of violence and driving matters. He has other convictions in the Local Court, again in relation to driving matters. His most recent convictions in the Local Court, which were offences for which he was on bail when he committed the current offence with which I am concerned, were offences of driving whilst disqualified, the offence of affray and being armed with intent to commit an indictable offence. For the latter two offences, he was convicted and sentenced in mid-January 2013 to five months imprisonment. The commencement date of that sentence was 11 January 2013. He has been in custody, obviously, since his arrest in relation to this matter. 47. Mr Smith has a far more formidable criminal history, including convictions in the Local Court in 2004 for offences of assault police officer in the execution of his duty, breaking entering with intent to steal and resisting police officer in the execution of his duty. These matters were dealt with modestly by the Local Court. 48. He appeared in the Sydney District Court, as I best understand it, on 3 September 2004 in relation to a number of offences, including assaulting a police officer, being armed with intent to commit an indictable offence for which he was sentenced to a term of imprisonment which included a non-parole period of six months. 49. On 27 May 2005 he was convicted of common assault and affray in the Local Court and sentenced to 12 months imprisonment with a six month non‑parole period. On 3 July 2009 he was convicted in the Sydney District Court of being an accessory before the fact to a serious indictable offence, for which I understand he was sentenced to six years imprisonment, commencing on 23 January 2009; malicious wounding, for which he was sentenced to five years imprisonment; and assault occasioning actual bodily harm offence, for which he was sentenced to six months imprisonment. 50. The effective non-parole period imposed was two years commencing on 23 January 2009, hence he was on parole at the time of the commission of the current offences, as I have earlier pointed out. 51. In relation to the cases that were conducted for each of the accused, Mr Kostopoulos did not give evidence. He wrote a letter to the court stating that he was ashamed for what he had done and said that he did not want to be involved with drugs and crime again. He said that he had taken a lot of drugs before coming into custody but being in gaol had been a wakeup call. He said that he and withdrawn from drug dependence and he no longer wanted to be involved with the Rebels motor cycle club. He said he had restrictions in custody because of his "bikie affiliations". He was restricted from work and other activities. He said he had new insight in light of his experiences in gaol and wished to re-join his family. 52. I will come back to the evidence of his parents and the references in a moment. 53. Mr Watson-Munro, a psychologist, provided a report setting out a great deal of history provided by the prisoner in terms of his personal circumstances. It is not controversial and largely confirmed by the prisoner's mother. 54. He is the only child of his parents. He left high school at an early age but went to complete whatever schooling he had a special school, completing Year 10. After leaving school he worked for his father for a while. 55. Mr Watson-Munro does not, in his report, dwell on his associations with the Rebels bike club and its implications of that. 56. He claimed to Mr Watson-Munro symptoms of anxiety and depression and "low self-esteem". He said that he was greatly affected by the death of his grandfather, which I could understand and he said that his arrest was "untimely" because he said he had no opportunity to mourn. 57. He claimed to be easily led. Much of the analysis of the psychologist provides little, if no, psychological explanation for his involvement in the current offending. 58. The only form of testing of an objective character, if that is the correct expression, undertaken by Mr Watson-Munro, was the 'Beck Depression Inventory', which is a self-reporting test. Unsurprisingly, given the prisoner's presence in custody, effectively for the first time, it showed symptoms of depression and anxiety. All of these symptoms would appear to be reactive to his circumstances at the time of the review. There is no evidence of any preceding treatment for any psychiatric or psychological injury or illness. 59. Mr Watson-Munro did say, in fairness to his report, that there was no evidence of any major psychiatric disturbance and there was no mental disability. 60. The report of Mr Watson-Munro claimed that his offending behaviour "commenced against the backdrop of his involvement with the Rebels motor cycle club". The prisoner, however, does not provide any detail either to Mr Watson-Munro or to me to explain that. As I said, I cannot hold that against him. 61. He undertook an analysis of his background, suggesting that he may have been bullied as a child, which "galvanised his feelings of worthlessness as well as escalating his sense of despair and anxiety". His mother had reported his vulnerability to peer pressure, although at the same time his parents, in their evidence, did not seem to have any real insight, not that I criticise them for that, into the circumstances of his offending on this occasion. 62. He had a history of substance abuse and was a problem gambler. 63. The psychologist said, in his conclusion, that his observations, testing and discussions with the prisoner's mother corroborated the history provided by the prisoner. He described him as a "troubled individual who clearly requires treatment". There are some suggestions for treatment and therapy whilst in custody. The report will be available for the custodial authorities. 64. His parents provided written references, setting out detail of his background, the illnesses suffered by the mother and the father, which are quite significant I accept. However, their evidence shows that they are not, in any way, dependent upon their son. They blame themselves for their son's criminal behaviour, which, to my mind, is very much misplaced guilt. They confirm the passing of the prisoner's grandfather on 4 September, being buried on 10 September. The prisoner being arrested on 12 September, I accept that he may not have had reasonable period to mourn. But, at the same time, bearing in mind as I understood it the grandfather had been ill and his death was not unexpected, the prisoner continued with the course of criminal conduct leading up to his grandfather's death. 65. The prisoner's parents spoke of the effect upon him of being in gaol, the resolution of him to reform on his release and his expressed regret for his involvement in the crime, which I have taken into account and I have reflected that in my consideration of the non-parole period. 66. The father of the prisoner points out that the prisoner's conduct in the 12 months before his arrest as being out of character and gave the illustration of the prisoner stealing from him a credit card to pay for a party that he put on for his friends in the Rebels bike club and also to assuage his gambling difficulties. They said, in effect, that now that he is drug free he is a different person. 67. His mother, in her oral evidence in court, said that in the 12 months before his arrest he was not normal. He was hostile and aggressive. She could not understand why. He was using steroids but they did not know that at the time. He was coming and going, sleeping during the day, going out at night. One day, some months before his arrest, he came home with a leather vest with the name of the Rebels motor cycle club on the back and this was a shock. He told his parents he had joined the Rebels because it was a brotherhood and because he was respected. They had no idea that he was involved in serious criminal activity but the mother said they noticed a big change in him and his remorse was absolute. He said that he wanted nothing to do with the Rebels on his release and they would stick by him and they would make sure that he complied with his parole conditions. 68. His father gave oral evidence that he was completely shocked that he joined the Rebels. He did not know about his problems with drugs and he believes that he "dropped the ball" because he did not pay enough attention to him. He said he was very busy with the prisoner's dying grandfather and that was a great stress upon the family. He said that the prisoner in custody has been transformed into a totally different person from the person he was before he went into custody and he is taking responsibility for his actions. The father said that he owned a transport company and it was a significant business. When he is finally released he would ensure that the prisoner complied with his parole conditions, he could provide him with work and he would continue to support him. 69. There were a number of other references from people that have known the prisoner and his family over a period of time. I will not refer to people by name, but just to give some flavour of the referees' testimonials, the mother of a school friend spoke of some of the prisoner's better qualities as a young man, including his contribution to a community in the Cook Islands after a hurricane or tornado had struck that community. She spoke about his lack of maturity as a teenager, but his greater maturity now since being in custody and his capacity for reform. 70. Another referee who had known the family for 20 years spoke of the prisoner's artistic qualities, his assistance to others, the burden placed upon him of the illnesses of his parents and the positive impression that he was creating whilst in custody. 71. Other referees talk about his contribution to the community as a school boy, that I have referred to, and his greater maturity since his incarceration, the expressions of remorse he had made, his commitment for change. 72. The family accountant speaks of the integrity of the prisoner's family. One referee spoke of the impact upon the prisoner and his parents of their illnesses and the exposure of him as a child to "adversity and stress". Both parents have significant health problems, as I said, and there is some medical evidence about one aspect of that. 73. Other character witnesses expressed opinions about the circumstances of the offender's involvement in the crime, but much of those observations reflect very little understanding of the facts in this case. 74. One referee, who had known the prisoner for 10 years, spoke of his change after joining the Rebels but also thought that the prisoner had returned to his former character since he had been in custody. 75. Mr Smith filed an affidavit in court, he was not required to be cross-examined on it. It is not subject to the test of cross-examination and I note in relation to the matter it does little to explain the circumstances of his involvement in the offence. He speaks of his work in custody and the fact that he has had difficulty completing particular courses in custody. He set out various courses he had completed during his previous period in custody. He gave some detail of his upbringing; he has had a disadvantaged upbringing. His father was a man who was described as an alcoholic. His parents separated when he was 15. He lived in the inner western suburbs, completing Year 10 at Glebe High School. He worked in various occupations, including working in demolition work as a storeman and as a tiler. 76. After his release to parole he got a job as a car detailer in 2011 but quit that job to undertake the care of his mother who had problems with cancer that kept recurring. She, sadly, passed away a couple of months before he was arrested. 77. Since his release to parole he had been in a relationship with a woman since 2011 and their first child was born in June 2012. He intends to marry his fiancé on his release. He said that having a child and his mother's passing had been a "big wakeup call". I accept that that may be so, but the problem with that claim is, of course, that he committed this offence after both events had occurred. 78. He said that when he came into custody he was taking a lot of "depressants" and "pain killers" and drinking a fair amount bit. He did express some hope for the future. He had completed a course in 2013 for which he produced a certificate. Upon the agreed facts and the draft affidavit, he was assessed by a psychologist, setting out details of his history, which I need not dwell upon; his alcohol abuse and his problems with illicit substances. 79. He also gave a history of cocaine abuse over a period of time and the use of steroids, having smoked heroin in the past. He claimed, however, to be drug free in custody. He acknowledged a history of violence and aggression to the psychologist in his criminal history and tended to blame his abuse of alcohol, rather than any personal failings for it. 80. He has never previously been diagnosed with any psychological disorders, although he reported a long history of psychological concerns that began in his early childhood. 81. He did, however, develop obsessive compulsive symptomology when he was first in custody, serving the sentences imposed to commence in 2009. He also spoke about the reactive anxiety and depression he had in various life situations. He said, in the history provided to the psychologist, that his involvement in the offence followed upon a number of stresses in the preceding two months of the offence. He said he also owed his cocaine dealer thousands of dollars, which had built over the 12 months before his arrest. 82. He said, in relation to the drugs for which he has been charged, that he was to keep them overnight and he claimed that he was unable to think through the consequences of his behaviour. He expressed regret and remorse to the psychologist. Of course, his reflections upon his involvement in the offence are not subject to any test, they are merely ultimately hearsay representations that remain untested. 83. The psychologist undertook some psychometric testing. He undertook a "Personality Assessment Inventory". The results of that testing seemed to dwell upon matters of little moment, such as his self-esteem and his inner personal style, not matters of great significance to explain his involvement in the commission of the offence. 84. The psychologist says that on clinical examination the prisoner's profile is "marked by significant elevations across several scales, including a broad range of clinical features (reflecting) the possibility of multiple diagnoses." "As such, Mr Smith's profile suggests he is a person who most likely has marked distress and severe impairment in functioning associated with a number of anxieties that is currently manifested in obsessive compulsive symptomology." 1. The psychologist said his profile and characteristics most likely point towards "diagnoses of an enduring anxiety disorder in addition to alcohol dependence and substance dependence." Not surprisingly, this is "consistent with Mr Smith's reported history and current state." 2. There is nothing in the formulation of the matter by the psychologist, in my view, that points to any psychiatric or psychological condition that contributed to his offending behaviour, other than, of course, the consideration of his abuse of prescription and non-prescription drugs. Certainly not a mitigating factor in the circumstances of this case. 3. In regard to the evidence of the two psychologists relating to both of those two prisoners, Mr Kostopoulos and Mr Smith, again I go back to the decision of De La Rosa. In that decision, particularly at [177], the learned Chief Judge at Common Law, Justice McClellan, summarised a body of authorities, going back to the decision of the Chief Justice Gleeson from 1994 of R v Engert concerning the relevance of a mental illness, intellectual handicap, or other mental problems, in the sentencing process. 4. His Honour set out a formulation, quite accurate, it would seem from my understanding of the authorities, in summary of the principles that apply. 5. Of course, it is true that when a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced and lesser weight may be given to general deterrence. But there is, in relation to Mr Kostopoulos and Mr Smith, other than consideration of alcohol and/or drug dependence, no mental health issue that contributes to the commission of the offences to which they have pleaded guilty in a material way. 6. However, in the case of Mr Smith, in light of the obsessive compulsive symptomology which has reflected itself in past custody, it is correct to say that one other aspect of the judgment of Justice McClellan is relevant to some extent. A particular condition may mean that a custodial sentence "may weigh more heavily on (the prisoner)." In my view, in light of what I understand of the matter, to some extent the custodial circumstances of the prisoner, albeit that he is not subject to any intense regime of treatment, are affected by his condition. The principles relating to the condition of a prisoner reflecting the prisoner as a danger to the community of course do not apply to these two offenders. 7. In relation to Mr Smith, a pre-sentence report was prepared. It sets out much of the detail that I have already summarised as far as background, particularly relating to his personal circumstances and the like, as well as his use of alcohol and non-prescribed medication. The report notes that the prisoner completed the "Getting SMART" program whilst in custody in 2009 and in November 2013 was referred to participate in the intensive drug and alcohol therapeutic program described as "IDATP", but was waiting to commence the program at the time of the preparation of the report. The grief and loss of the prisoner's mother is reflected upon in the report and I have taken that into account. 8. With regard to his attitude to the offending, the report states, "When discussing the offence Mr Smith justified his offending behaviour and claimed that he was very stressed at the time, given his mother had recently died and he was experiencing difficulty family issues with his fiancée and baby. The offender acknowledged that he was abusing alcohol and non-prescription medication at the time of the offence. Mr Smith disputes the Australian Federal Police facts. Mr Smith stated, 'I was just holding something for someone' and 'I knew it wasn't anything good, but I didn't know exactly what it was'". 1. I do not accept that particular hearsay representation, although I accept that offenders will, from time to time, try to minimise their responsibility. 2. He is considered as a person at medium risk of reoffending and he is a person who is regarded as one who would benefit from supervision from Community Corrections, notwithstanding his previous breach of parole. Certainly to receive counselling in relation to drug and alcohol dependency, to address the grief issues, to monitor his associations and other matters, which I think is self-evident from the facts I have outlined. 3. Mr Treffiletti, as I said earlier, had just turned 18 years at the time of the offending and as I mentioned, has no prior criminal convictions. He was working as a motor mechanic at one point and then commenced working with Kennard's Hire Company. He is a 'permanent casual', but could become a permanent employee. He continues, as I understand it, to work in that employment as he said in his oral evidence, and enjoys the work. He is a young man with fairly uncontroversial interests. He likes camping and four wheel driving. He had no direct dealing with any of the co-accused. He said he did not know that there were amphetamines in the bottles. In fact he did not know, he said to the investigating police, that liquid amphetamine could be concealed with other liquids in bottles. I have already dealt with the circumstances of his arrest. He said in his evidence that when he was approached by Mr Maharaj he assumed the packages would contain expensive wines. He was suspicious but he was reassured by Mr Maharaj, who was a friend of his from high school. He was to be paid $500 in relation to each consignment for the role that he played. He accepts that he assisted people to commit serious crimes. He was cross-examined by the learned Crown Prosecutor in relation to matters concerning his payment and the risk involved, the messaging between himself and others, particularly referring to the risk of going to gaol. Whilst he was skilfully cross-examined, I do not doubt his evidence, as I earlier indicated. 4. He produced a reference from his employer of the last 13 months who spoke of his industry, his honesty and his value to his employer. His supervisor at that establishment also spoke of his value as an employee and his personal qualities. He does not drink alcohol, he is family oriented, he is a person with the promise of permanent employment. He does not have any drug or alcohol issues and this is reflected in the report from the Community Corrections Officer of 24 January 2014. That refers to the fact the prisoner has an "unremarkable upbringing", denying any drug or alcohol issues. He is considered at 'low risk' of reoffending. He expressed to the officer disappointment in himself for not being more vigilant in relation to what he was being asked to do and that the arrest of himself and his experience of coming to Court has been a salutary one, which I accept. He has never had any previous contact, obviously, with Community Corrections . Because of his current personal circumstances he is unlikely to benefit from a period of supervision. There are no criminogenic factors to be addressed. He is suitable for community service. 5. This brings me to the submissions that were produced to the Court. As I said I have very helpful written submissions from Mr Smith's counsel and from counsel for Mr Treffiletti and I have very skilled oral submissions from Mr Boulten of Senior Counsel and extensive written submissions from the Crown. Although the order of submissions was the defence addressing first, I think it is appropriate for the purposes of my remarks on sentence to start off with the Crown's submissions, simply because ultimately, when one analyses all that has been put before me, there was little dispute in terms of the legal principles to be applied. I will briefly summarise what was set out in the extensive written submissions of the Crown as usually provided by representatives of the Director of Public Prosecutions. 6. I have already made mention to the reference to the significance of the maximum penalty. The Crown submitted that the conduct carried out by the offenders, particularly Mr Kostopoulos and Mr Smith, constituted a serious degree of criminality. Of course this submission is leavened by the need to fully appreciate and identify the differing roles and the different culpabilities of each of the offenders. The Crown referred to the period of time that the offenders had been in custody and obviously all relevant custody has been taken into account. 7. All the offenders are required to be sentenced pursuant to Part 1B Crimes Act 1914 and particular reference was made in the submissions of all the parties to the terms of s 16A(2) of that Act. This sub-section is sometimes referred to as a "check list", but it is to be borne in mind of course that it is introduced by the words, "In addition to any other matters the Court must take into account such of the following matters as are relevant and known to the Court". 1. Thereafter between s 16A(2)(a)-(p) are various matters, many of which have relevance to one or other of the offenders. 2. As the Crown submits and is acknowledged in the submissions of the parties, general deterrence is a relevant consideration, notwithstanding its absence from the terms of s 16A one need only refer to the decision of El-Karhani. With regard to the nature and circumstances of the offence, as required to be considered under sub-paragraph (a) I have set out the detail of the involvement of the offenders in summary. The Crown submits and I accept beyond reasonable doubt, that Mr Kostopoulos and Mr Smith knew the identity of what they were attempting to possess. The Crown pointed out correctly, that in the context of the High Court judgment of Olbrich, the Court is required to if able on the evidence, make determinations about the role of particular offenders, matters in mitigation are to be established by the offenders on the balance of probabilities. The objective facts need to be established beyond reasonable doubt by the prosecution. 3. The Crown points out that Mr Kostopoulos was recruited, stepping in from Mr Curcuruto and appointed to his role as a liaison person. There is the attempt to pick up the first package from the Five Dock post office and I need not go through the detail of what the Crown points out as to what he did. The Crown submitted that his role was significant and important and submitted that he was, "clearly a trusted member of a well organised syndicate", acting as a "intermediary and facilitator", but he was subordinate to Mr Smith. He was entrusted to warehouse and deliver the substances and of course attempted to collect one of the consignments. The Crown submitted that the level of criminality is at "the high end of objective seriousness". 4. If I could pause for a moment in relation to those submissions, which obviously are very helpful, I could not conclude that the prisoner Kostopoulos was a "trusted member of a well organised syndicate", I have got absolutely no idea what organisation, if there was such an organisation, organised this importation. But he certainly was a trusted person and I accept he was an intermediary and facilitator. I have already pointed out to the issue of his role as a warehouser and deliver and other matters. I hasten to say, in the context of considering the issue of the role of the prisoner and where he fits within the range of offending contemplated by the provision, I have been greatly assisted by the decision of De La Rosa and particularly the very, very extensive discussion by the learned Chief Judge between paragraphs 207 and 263 of the various types of offending reflected in that case of course, cases of importation of commercial and/or trafficable or marketable quantities of drugs. I appreciate these offenders, Mr Kostopoulos and Mr Smith particularly, are not charged with importing the drugs. I obviously cannot be satisfied that they are responsible for the importation of the drugs. But the learned Chief Judge's analysis is extremely helpful in showing the differing considerations that need to be had in assessing the role of an offender and assessing it in a proper context by reference to the matters that the Crown points to are relevant in consideration of the maximum penalty. 5. I could not conclude either that Mr Kostopoulos or Mr Smith are liable for conduct, the culpability of which could be described as "the high end of objective seriousness". That is not to say that their roles were not important. But there are many matters that need to be taken into account and particularly, in the context of the facts of this case, in neither case could I conclude that they financed the importation or were responsible ultimately for the distribution of the drugs. They were part of a chain of connection. But as to where that chain led I am not assisted by either Mr Kostopoulos or Mr Smith. I have got no doubt that they have at least some information in that regard that they might have shared with the Court to assist me. 6. It has been pointed out time and time again by the superior Courts, that when matters are raised about the role of an offender in a particular criminal enterprise, particularly drug importation, normally the Court will be denied information about the character of the "organisation", that is involved, if such an organisation exists. As I have said just recently in another case, most offenders who are arrested do not walk around the streets carrying around an organisation chart to be of some assistance at their sentencing proceedings in relation to these matters. I need only refer to the decision of Lee ([2007] NSWCCA 234) in that regard. 7. With regard to Mr Smith's role, I have already dealt with that. The Crown submits that he was knowledgeable as to the content of the consignment, was engaged in liaising and receiving the substance concerned with the second consignment. He was the "third set of hands", through which the drugs were to pass, distancing himself from the original delivery and it was submitted that he had "seniority in the hierarchy of the syndicate". I do not criticise the Crown for making that submission. Clearly I should not and could not, but I could not conclude that the prisoner, for the reasons I have just outlined had "seniority in the hierarchy of the syndicate". Because I do not have any evidence as to whether there was a "syndicate" and I have got no idea as to what role Mr Smith played. Again, he could have assisted me but he did not. 8. With regard to the matter of sentencing these offenders of course, one factor that is pertinent, bearing in mind the interest of Mr Kostopoulos in two consignments and Mr Smith in one consignment, is the issue of financial reward. There is no evidence from the offenders, no information provided by the offenders, even in any hearsay account they have given in that regard. But I think it could be safely concluded that there must have been some financial reward for them. The extent of that would only be a matter of speculation. The motivation of an offender at the point of initial involvement may be relevant to assessing the offender's culpability, but again the motivation of these two prisoners is denied me beyond what might be concluded from the understanding that their involvement in this matter was not for altruistic purposes. 9. The other matter of importance is of course the fact that the nature, quantity, purity, source and value of the drugs is a highly relevant matter to the assessment of the objective seriousness of an offence of this type, as the Chief Judge at Common Law in De La Rosa said at [260] "General deterrence is of particular significance when sentencing for drug offences". And, "The nature, quantity, purity, source and value of the drugs important are highly relevant to the assessment of the objective seriousness of the offending". 10. With regard to Mr Treffiletti, his role was effectively marginal. He did admit to receiving financial gain and it is not disputed that he ultimately stood to receive a thousand dollars, being almost completely ignorant of relevant facts and I have already been through the matters that point out the facts and circumstances of his offending. 11. The Crown submits, in relation to Mr Treffiletti, that his role was limited but "necessary". That may be correct but clearly his role was not "vital" because if he had not agreed to opening the post office box, somebody else may have, even Mr Maharaj himself. The Crown accepted that he was "at the very bottom in terms of the hierarchy", and was at the "periphery" in terms of the involvement in this affair. His offending was at a "low level of objective seriousness", with which assessment by the Crown I agree. 12. The Crown points out of course, that a person who does perform a limited role is not necessarily to receive a degree of leniency. But the principles relating to that proposition are not of direct applicability to this offender. The Crown in its written submissions, as I have already noted, referred to the amount of drug or weight of drug that was imported. I have already made comments about that and the relationship of that amount to what constitutes commercial quantity of amphetamine and the Crown in its submissions, conceded ultimately that whilst Mr Treffiletti may not have known the identity or quantity of the drug, he must had operated under the belief, the probability that there were border control drugs of some kind. I dealt with the issue of the discount covered by the Crown in its written submission. 13. The Crown pointed to the fact as it may be relevant to the matters to be considered under s 16A(2) of the Act and generally at common law, that there was no co-operation by Mr Kostopoulos or Mr Smith with the law enforcement officers, although there was co-operation by Mr Treffiletti. The Crown submitted that the criminal histories of Mr Kostopoulos and Mr Smith require consideration with greater weight being given to specific deterrence in their cases. This would be less so for Mr Kostopoulos, one would have thought. 14. However, on the other hand it needs to be borne in mind as a fact in this case, that whilst there are aggravating factors of committing the offence whilst on bail, in the case of Mr Kostopoulos and whilst on parole in the case of Mr Smith, the aggravation of committing the offence whilst on parole, must be regarded as somewhat more serious than committing an offence whilst on bail. But both matters are relevantly adverse to the interest of the prisoners. 15. The Crown submitted it, by reference to s 16A(2) factors, the need for the offenders to be adequately punished, to have regard of course, to their character antecedents and other matters set out in sub-paragraph (m), their prospects of rehabilitation. The Crown submitted that by reference to (p) that the probable effect of any sentence or order made upon a person's family or dependants in these matters did not serve to mitigate the otherwise appropriate punishment for either Mr Kostopoulos or Mr Smith. The Crown dealt with the issue of the absence of any mental illness or disorder causally connected to the offending. The Crown also dealt in its submissions with the relevance of drug dependency and the like and properly referred the Court to the observations of Wood J in the guideline judgment of Henry, particularly at [273] of that judgment. The Crown also referred to Mr Kostopoulos' problems with gambling and said that that was not a mitigating factor, although it may have been a contributing factor, citing a decision of the Court of Criminal Appeal of Anna Le [2006] NSWCCA 136 and the judgment of Latham J. 16. With regard to the issue of comparative sentencing of the three offenders, the issue of parity as might be generally described, that is providing equal justice to the offenders is a critical matter in this matter. Alike shall be treated alike and the unalike shall be treated unalike to the extent of their unalikeness, to paraphrase the words of Rothman J in the 2010 decision of Jimmy and also the words of Gaudron and Dawson JJ in Postiglione. 17. The Crown also referred the Court to the various statutory principles that are of importance including the need to impose a term of imprisonment if satisfied that imprisonment is the only appropriate sentence, the fixing of non-parole periods and the like. 18. The Crown also made submissions about the non-parole periods where they are appropriate, which I have already referred to. The Crown provided a schedule of comparative cases. I do not propose to read out the names of all those decisions but I have had regard to those various decisions referred to by the Crown. I have also had regard to the limited extent that they are of any assistance to the very many more decisions discussed by McClellan J in De La Rosa, albeit that his Honour was concerned with importation cases. 19. What is of some importance in that judgment is the way in which his Honour analysed the categorisation of offending by reference to role, quantity of rugs and the like. An exercise obviously relevant in this matter. It is to be borne in mind, of course, that the comparative cases, whilst of some assistance, may provide some particular assistance in relation to the range of penalty that is appropriate, particularly where the Court of Criminal Appeal has intervened. Also, they need to be approached with some caution because there are many variables in each individual case relating to the role of the offender, the criminal antecedents, the subjective circumstances. Some of the matters referred to by the learned Crown in the helpful schedule, related to cases where offenders had pleaded 'not guilty'. Obviously, pleas of not guilty might reflect absence of contrition and also would, where sentencing occurs after trial, not involve any discounts for any pleas of guilty. 20. None of the authorities who which I was referred by way of comparative purpose had any real relevance to the position of Mr Treffiletti, both as to his role and his subjective circumstances. 21. I was particularly invited by learned senior counsel for Mr Kostopoulos to have regard to the decision of Karan, a decision at first instance at the District Court of McLoughlin J, but subject to Crown appeal heard by the Court of Criminal Appeal on 11 March 2013. 22. With regard to the written submissions on behalf of Mr Smith, very helpful submissions indeed were made by Ms Moody, who skilfully represents her client's interests, in respect of the s 16A(2) matters. She correctly points out there are no other offences to be taken into account. There is no relevant 'victim' or loss or injury, particularly in light of the intervention of the AFP. She made submissions about the discount for the plea which I accept. It is submitted that Mr Smith has expressed contrition in his affidavit and through the psychologist. I accept that he has expressed it. There is remorse implicit in his plea, but remorse in contrition in this matter is discretely from any discount for the plea of guilty of not great moment in this case. This is considered by me to be the case when it is borne in mind that the prisoner provided no assistance to the authorities and of course has not given evidence in these proceedings. 23. It is noted that he is a relatively young man. But he has a history of convictions which do not entitle him to any leniency and of course he has the aggravation of committing offences whilst on parole. I am required, as is correctly pointed out, to have regard to the deterrent effect of any sentence upon him. I not the character antecedents and other matters relating to his physical and mental condition. I have already summarised them. It is submitted that he is psychologically vulnerable in custody and I accept that to be so to some extent. It is relevant in the manner that I have outlined to his circumstances of custody. 24. It is submitted on his behalf that, given his background, he has good prospects of rehabilitation and is motivated to change his lifestyle. I could not find on balance, that he has good prospects of rehabilitation. He may, but it will be a matter of time before anyone could form a concluded view about that matter. I am prepared to give him some credit in all the circumstances of the matter in the non-parole period to the promotion of his rehabilitation in the past and I believe that I have reflected upon relevant matters in the summary I have provided thus far. 25. It was conceded in the oral submissions that he must have been motivated by financial reward. It is accepted in the submissions of his learned counsel that the Crown's summary of his involvement in bare terms is an accurate one, although there is no acceptance of the description of his role and I have already dealt with that matter. It is submitted on behalf of Mr Smith that Karan is a relevant case. 26. With regard to Mr Treffiletti, I will not dwell on the very helpful written submissions of his counsel. He substantially summarises the facts as I have outlined them and as the Crown concedes, the objective seriousness of the offence is the subject of specific submission. In this case it is submitted that it is not inevitable that a custodial sentence must be imposed. The learned Crown Prosecutor in oral submissions, conceded matters relevant to the low level of objective seriousness of the prisoner's offending but one factor to be borne in mind of course, is that of course the offender has pleaded guilty to an offence that carries life imprisonment and it is in that context that consideration of community service order, whilst it might perform some benefit for the community, ultimately was not one that I could favourably make in this case. 27. With regard to the factors arising under s 16A(2) I have dealt with the various matters identified in the written submissions. I accept that he was co-operative with the authorities and truthful with them from the get go, so to speak. I believe that his experience has been a salutary one and the order that I foreshadowed will have a deterrent effect upon him and that he will be adequately punished. I have already dealt with his antecedents. I believe he has excellent prospects of rehabilitation and ultimately I have concluded as I have foreshadowed. 28. With regard to Mr Kostopoulos' learned senior counsel's submissions, there were no written submissions from him. That is not a criticism. But he gave very helpful oral submissions to the Court. Many of the matters that he addressed in his submissions I believe that I have already addressed in the remarks I have made thus far. Particularly, however, I pick up some aspects of the matter. 29. Whilst I accept in relation to the second consignment that Mr Smith played something of a supervisory role in relation to the prisoner and only that consignment, in assessing ultimately the appropriate sentence, by reference to the objective facts, as I have earlier pointed out, and as conceded by the particulars. 30. The involvement of Mr Kostopoulos in the first consignment, in the way in which I have described, ultimately means that in considering the comparison between Mr Smith and Mr Kostopoulos then the objective gravity of the criminality of Mr Kostopoulos must be greater given Mr Kostopoulos's involvement in that first consignment. 31. I appreciate, if one is to do a strict comparison between Mr Kostopoulos and Mr Smith, that Mr Kostopoulos is younger, in fact he was quite young, 19 years of age, about to turn twenty and did not have anywhere near as formidable a criminal history. He was not on parole. He had never been in gaol before. However, he committed the offence with which I am concerned whilst on bail, which I have already pointed out several times. The objective criminality with which he was concerned was greater, notwithstanding Mr Smith's role, vis-à-vis him in relation to the second consignment. It is to be pointed out in that regard that I cannot conclude that Mr Smith was the man who was to distribute the drugs. Certainly there is no evidence that he financed the importation, I cannot conclude that any financial reward that he was to receive was significantly greater than that of Mr Kostopoulos. Neither prisoner has helped me in that regard. 32. Ultimately, doing the best one can, one must balance up all the relevant factors to reach a final conclusion as to what the appropriate penalty may be. The truth of the matter is, if I could use a metaphor, the sentencing of an offender in any matter involves really, by comparison, filling up a flask or a container with water to reflect all the objective seriousness of the offence, and the relevant aggravating factors and then subtracting from that quantity those matters in mitigation, leaving one at the point where the final quantity of the penalty can be measured. 33. Ultimately I have concluded, in the context of parity principles outlined in cases such as Postiglione, Jimmy, Lowe and the like, that the final sentence to be imposed on Mr Kostopoulos must be greater than that imposed on Mr Smith. However the reflection of matters favourable to Mr Kostopoulos not available to Mr Smith will be largely seen in the non-parole period. 34. I have noted the submissions made by Mr Boulten about the way in which Mr Kostopoulos provided his own identification by his passport and thus sealed his fate on 6 September and also the fact that Mr Kostopoulos obviously was at various times acting on the directions of others. Whilst, as I said, he may have had a somewhat lesser role than Mr Smith in relation to the second consignment, the first consignment and his role in that of course is an important matter to bear in mind. 35. I have had regard to the Victorian decision of Justice Forrest from 2012 to which counsel referred in distinguishing between a young offender and older offenders. But what was said by his Honour of course has to be seen in the context of the facts of this case. The substantial, it must be fairly said, difference in involvement by reference to the two consignments. It was conceded that a term of imprisonment must be imposed. I have accepted, as it would appear from what has gone before, his prospects of rehabilitation are good, particularly in light of the evidence of his parents and that law abiding environment to which he can return on his release from custody. 36. The sentencing of offenders of course is not an exact science. Judges do not have the benefit, if I could use that word somewhat sarcastically, of a Code of Hammurabi to arrive at a mathematically correct decision. It is a matter of doing one's best on the material available in the context of the sentencing practices by which a court is bound to apply, and of course the legislative direction given by the Commonwealth Crimes Act and any related state legislation that follows from Commonwealth provisions. 37. In the case of Mr Kostopoulos ultimately I determine that the starting point for any sentence to be imposed upon him was seven years six months imprisonment but with a discount of 25%. The total sentence to be imposed upon him is five years nine months, to date, as I said, from 12 December, and the non-parole period will be three years. 38. In the case of Mr Smith the starting point of the sentence to be imposed upon him in relation to the offence to which he pleaded guilty was six years and six months. On my calculation a 25% discount leads to a sentence of four years and ten months imprisonment. But in his case, because of the partial accumulation of his sentence upon his balance of parole, I have adjusted his non-parole period to a period of two years and ten months. 39. In the case of Mr Treffiletti I cannot accede to the granting of a Community Service Order in the context of the measure of the criminality by reason of the maximum penalty. But having regard to his low level of involvement and moral culpability I have determined that a term of imprisonment should be wholly suspended. 40. Mr Kostopoulos could you stand up please? Thanks very much. In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment of five years nine months to date from 12 December 2012. Your sentence will expire, on my calculation, on 11 September 2018. In respect of that sentence I fix a non-parole period of three years imprisonment which will commence on 12 December 2012 and expire on 11 December 2015. You can take a seat, thanks very much. 41. Mr Smith would you mind standing up? Thank you very much. I do apologise to you. I said your head sentence would be four years and eight months but it is four years and ten months, but you are not disadvantaged by reference to a non-parole period, it was an error on my part of reading. In relation to the offence to which you pleaded guilty you are sentenced to a term of imprisonment of four years and ten months to date from 12 June 2013 and expire on 11 April 2018. In respect of that sentence I fix a non-parole period of two years and ten months to date from 12 June 2013. That will expire on 11 April 2016. You can take a seat, thanks very much. I will explain the sentences in a moment. 42. Mr Treffiletti do you mind standing up? Thanks very much. In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of fifteen months imprisonment. I direct that you be released forthwith upon you entering a recognisance pursuant to s 20 (1)(b) yourself in the sum of five hundred dollars without surety to be of good behaviour for a period of two years from this date and to appear to receive sentence if called upon to do so at any time in respect of any breach in the said period. 43. A further condition of the recognisance is that you are not to change your residence without notifying the court and the Director of Public Prosecutions. I do not propose to direct that you be supervised by the Probation and Parole Service because there seems to be no purpose in that, there is no reparation for you to pay. You can take a seat, thanks very much. 44. Mr Kostopoulos and Mr Smith in relation to the sentences I have imposed upon you you will not be automatically released to parole. The Parole Authority will determine if you are release. I think Mr Smith you are aware of the way in which parole operates, to some extent at least. It will be within the discretion of the Parole Authority. But if you are of good behaviour and you make progress during your time in custody one might expect that your release to parole might be favourably considered by the parole authority, either on the date that I have fixed, or close to that date. 45. As for you Mr Treffiletti if you fail to be of good behaviour during the period of time that you are on the bond that I have ordered an application can be made to the court for the bond to be revoked. And if the bond is revoked I would be required to consider sentencing you to a term of imprisonment in one form or another. If you are sentenced to a term of full-time custody I would be required to fix a non-parole period in your case. 46. Now Madam Crown, any technical matters or slips of the tongue? 47. CHOI: Yes your Honour. With respect in relation to Mr Kostopoulos. 48. HIS HONOUR: Yes? 49. CHOI: Your Honour stated that the starting point was seven years and six months and if your Honour was to apply a 25% discount in relation to that figure the head sentence should be five years and seven and a half months. 50. HIS HONOUR: Seven and a half months is it? Well I'm going to give my calculator a good beating when I go back outside. Righto, well I apologise for that. 51. BOULTEN: I reached the same conclusion without a calculator too your Honour. 52. HIS HONOUR: You probably went to a better school than I did Mr Boulten so I don't doubt that you're right. What I'll do Madam Crown, Mr Boulten, I will round it down to seven months. The Court of Criminal Appeal doesn't look favourably upon Judges fixing sentences in years, months and days. 53. CHOI: Yes your Honour. 54. HIS HONOUR: So I'll round it down to five years and seven months-- 55. CHOI: Which means that the balance of the term would expire on 11 July 2018. 56. HIS HONOUR: 11 July 2018, that's right, yes, my apologies, yes thank you. In light of that error in relation to that head sentence Madam Crown and Mr Boulten I thus feel obliged to, and that's an error on my part, or maybe my writing has deteriorated to the point where I've misread what I wrote. I'm prepared to make an adjustment to the non-parole period by a period of one month to fix an effective non-parole period of two years eleven months. That non-parole period thus will expire on 11 November 2015. 57. BOULTEN: Thank you your Honour. 58. HIS HONOUR: I'm embarrassed that I've made the error in the head sentence but in light of that and trying to keep the same rough relationship with a non-parole period of a head sentence I'm obliged to make that adjustment in your client's favour. Yes, thank you. 59. Well I will start with you Mr Boulten, in order of seniority if you don't mind, any matters that you wanted to raise of a technical nature? Slips of the tongue I'll fix up in due course when I revise the judgment? 60. BOULTEN: No your Honour. 61. HIS HONOUR: None. What about you Mr Nicholls? 62. NICHOLLS: No your Honour. 63. HIS HONOUR: Thank you. Ms Moody? 64. MOODY: No your Honour. 65. HIS HONOUR: Right, thank you. Yes gentlemen you're excused. Now Mr Treffiletti you can leave the dock of course, thanks very much. You will need to go up to level 4 and I will permit your solicitor to take you up there to enter into the recognisance. Thanks very much. 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. Decision last updated: 26 October 2015