R v Nerbas[2014] QCA 259

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Gotterson JA and the orders he proposes.

[2] GOTTERSON JA:  In 2008, the appellant, Kelsey James Nerbas, with two others, Handlen and Paddison, was charged with four offences involving the importation and possession of drugs under Division 307 of the Criminal Code 1995 (Cth) (“the Code”).  In summary, the alleged offending involved the importation from Vancouver to Brisbane of cocaine, ecstasy and methamphetamine hidden in the cathode ray tubes of computer monitors and the possession and attempted possession of those drugs.

[3] The indictment (“the original indictment”) charged all three conjointly with two counts of importing contrary to ss 307.1 and 311.1 of the Code and one count of attempted possession contrary to ss 307.5 and 311.1 of the Code.  Handlen and the appellant were separately charged with identical counts of possession contrary to ss 307.5 and 311.1 of the Code.

[4] The three accused were committed for trial in August 2007.  The trial commenced in November 2008.  On the ninth day, the appellant changed his plea to guilty on all charges.  Upon administration of the allocutus, his sentence hearing was adjourned whilst the trial against the others continued.

[5] Handlen and Paddison were found guilty on all counts.  They were duly sentenced on 5 June 2009; Handlen to life imprisonment with a non-parole period of 22 years, and Paddison to 22 years’ imprisonment with a non-parole period of 14 and a half years.[1]  Their appeals against conviction were dismissed by this Court which also refused their applications for leave to appeal against sentence;[2] however, the convictions were quashed, the sentences set aside and a new trial ordered on a subsequent appeal to the High Court of Australia.[3]

[6] The High Court confirmed, as the Court of Appeal had held, that the trial had been conducted on the mistaken assumption that guilt of the importation offences could be established by proof that Handlen and Paddison were, with the appellant, parties to a joint criminal enterprise in common law concepts to import the drugs into Australia.  Their Honours observed that pursuant to s 2.1 of the Code, the statement of principles of criminal responsibility in Chapter 2 thereof are exhaustive.  Relevantly, they noted that under s 11.2(1) of the Code, proof of a substantive Commonwealth offence might be established by proof that an accused aided, abetted, counselled or procured the commission of the offence.[4]

[7] On 18 March 2011, and while the High Court appeal was on foot, a judge of the trial division refused an application by the appellant, who was then yet to be sentenced, for leave to withdraw his pleas of guilty.[5]  An appeal from that decision to this Court succeeded and on 19 August 2011, the appellant was given leave to withdraw the pleas.[6]

[8] Judgment was given in the High Court appeal on 8 December 2011.  A new indictment framed to take account of the High Court decision, was then presented against all three accused on 24 February 2012.  Allowing for two subsequent minor amendments, neither of which is significant for present purposes, the 11 counts on the indictment were as follows:

“

”[7]

(These counts charged the accused with the same offences with which they had been charged under the original indictment, except that each accused was now charged separately for offences with which they had been charged conjointly in the first indictment.  For the six separate importation counts, a reference to s 11.2(1) was added in the margin.  There was also a change of date for the earliest offence counts.)

[9] Each of the three accused applied for a permanent stay of proceedings on the new indictment on the ground that it was an abuse of process.  Their applications were heard at a pre-trial hearing in April 2012.  They were refused on 30 April 2012.[8]  Further pre-trial hearings were thereafter held on a number of days during 2012 and 2013.  During this period a nolle prosequi was entered in respect of the original indictment on 26 October 2012.  The trial was set to commence on 11 November 2013.

[10] At the commencement of the trial on that date, the appellant was separately arraigned on Count 5 (possession between 29 May and 14 June 2006) and Count 11 (attempted possession between 8 and 20 September 2006) to which he pleaded guilty.  He was convicted on both counts and the allocutus administered.[9]  The Crown prosecutor then handed up a nolle prosequi in respect of Count 4 (importation between 6 April and 29 May 2006) and Count 10 (importing between 7 July and 8 September 2006), being the other two counts on the new indictment which concerned him.[10]

[11] A sentence hearing for the appellant and Paddison who had subsequently pleaded guilty to Count 8 (importing between 7 July and 8 September 2006) and Count 9 (attempted possession between 8 and 20 September 2006) and been convicted after a short trial on Count 3 (importing between 6 April and 29 May 2006), was held on 31 January 2014.  They were both sentenced on 5 February 2014.  The appellant was sentenced to 15 years’ imprisonment for each offence to which he had pleaded guilty, the sentences to be served concurrently.  A non-parole period of 10 years’ imprisonment was fixed.  A declaration was made that 2,646 days spent in pre-sentence custody between 20 September 2006 and 21 February 2007 and 13 April 2007 and 5 February 2014 be deemed time already served under each sentence.

[12] The appellant was represented by the same experienced criminal trial counsel at the stay application, the pre-trial hearings, the plea of guilty and the sentence hearing.

[13] Three further matters warrant mention.  Paddison was sentenced in February 2014 to 19 years’ imprisonment with a non-parole period of 12 and a half years for each offence, to be served concurrently.  The next matter is that in April 2014, Handlen was convicted at trial on Count 6 (importing between 7 July and 8 September 2006) and Count 7 (attempted possession between 8 and 20 September 2006), but acquitted of Count 1 (importing between 6 April and 29 May 2006) and Count 2 (possession between 29 May and 14 June 2006).  He was sentenced on 10 April 2014 to concurrent sentences of 27 years’ imprisonment with a non-parole period of 18 years in respect of each offence.[11]

[14] The third matter is that in April 2007, a co-offender, Reed, pleaded guilty to two importing offences, one committed in mid-May 2006 and the other in September 2006.  These were the importations to which Counts 1, 3 and 4 on the one hand and Counts 6, 8 and 10 on the other were referenced.  He was sentenced to 12 years’ imprisonment with a non-parole period of eight years for each offence to be served concurrently.  This was a reduced sentence pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) and s 21E of the Crimes Act 1914 (Cth).  The learned sentencing judge noted that he would otherwise have imposed a concurrent sentence of 24 years’ imprisonment with a non-parole period of 16 years in respect of each offence.[12]

[15] On 25 February 2014 the appellant filed a Form 26 in this Court by which he appeals against his convictions and seeks leave to appeal against the sentences.[13]  He filed an Outline of Submissions dated 22 June 2014 and a Supplementary Outline of Submissions dated 11 July 2014.  The appellant was not legally assisted at any stage in the appeal process.  He was not legally represented at the hearing of the appeal and the application on 22 July 2014. Notwithstanding, his oral submissions competently presented the arguments which he wished to advance on both the appeal and the application.

Appeal against conviction

[16] Section 671(1) of the Criminal Code (Qld)[14] required the appellant to give notice of appeal against conviction within one month of conviction, that is, within one month of 11 November 2013.  Although he has not formally sought it, the appellant requires an extension of time pursuant to s 671(3) of the Criminal Code (Qld) to appeal against his conviction.  He has provided no evidence as to why he did not appeal in a timely way; however, it may readily be surmised that, perhaps understandably, he deferred filing a notice of appeal until he had been sentenced.  It is, therefore, appropriate to give consideration to the viability of an appeal.

[17] The appellant does not attribute his conviction to any wrong decision on any question of law by the learned trial judge before whom he pleaded guilty and was convicted.  He does not contend that he was not guilty of the offences of which he was convicted or that his pleas were not freely entered.  In these circumstances and having regard to the provisions of s 668E of the Criminal Code (Qld), the appellant’s appeal needs to be viewed as contending that his conviction was tainted by a miscarriage of justice.  He faces the formidable hurdle that the circumstances in which a person of full age and apparently sound mind who has freely chosen to plead guilty might establish a miscarriage of justice resulting from a plea of guilty must be “very rare indeed.”[15]

[18] The stated ground of appeal is that the presentation of the new indictment was “an abuse of process in which the continuance of the prosecution has been unjustifiably vexatious and oppressive and/or which resulted in a conviction being sought on an invalid basis”.  In written submissions, the appellant characterised the presentation of the new indictment as a “procedural error” which resulted in an abuse of process.  Three strands to this ground of appeal can be discerned from the written submissions.  One is a complaint of procedural error.  The others are of delay and of loss of a significant chance of acquittal at the first trial.  The first of these strands was not raised before the primary judge who heard the permanent stay application in April 2012.  The others were raised.  His Honour rejected them both.

[19] With respect to procedural error, the appellant in his Supplementary Outline stresses that the essence of his complaint is that a new indictment was presented six years after his arrest.  The fact that the indictment was “new”, he says, meant that “there may be some legal consequences because of this that the law is unclear on”.  The submission does not elaborate what those consequences might be.

[20] In my view, the appellant has not demonstrated procedural error.  The indictment presented on 24 February 2012 was not new in the sense that it commenced proceedings afresh.  It is more properly characterised as an indictment which incorporated amendments to the original indictment in order to conform with the decision of the High Court.  The accused were not charged with different or additional offences.  To the extent that the amendments adopted a different basis for criminal liability, they were limited to the importation offences.  They did not concern the offences to which the appellant subsequently pleaded guilty.

[21] The amendments made were within the scope of permissible amendments to indictments contemplated by s 572(1) of the Criminal Code (Qld).  Further, in view of this characteristic, the provisions of s 590 thereof did not preclude the presentation of the new amended indictment in February 2012, notwithstanding that the accused had been committed for trial in August 2007.[16]  The amendments did not give rise to a miscarriage of justice.

[22] As to the decision to refuse the permanent stay, two grounds had been advanced before the learned primary judge why a permanent stay should be granted.  One concerned delay.  The other was of oppression arising from a continuation of proceedings on the new indictment.  Oppression was proposed upon the following thesis:  had there been a trial according to law on the original indictment, a no case submission would have been available at the close of the prosecution case; it would have succeeded; and a directed verdict of acquittal or a nolle prosequi on each count would have ensued.

[23] His Honour held that the delay was not so exceptional as to compel an inference or presumption of prejudice and had not caused a loss of evidence, the absence of which gave rise to unfairness, prejudice or oppression of such a kind as would preclude a fair trial.[17]  The appellant has not contended that his Honour erred in so holding.

[24] With regard to oppression by a continuation of the proceedings, his Honour noted that the argument was of doubtful relevance to the appellant in light of his guilty pleas.  For the sake of debate, he was prepared to consider it as if the appellant had not pleaded.[18]  He noted that the argument applied only to the importation offences, and not to the possession or attempted possession offences.[19]  His Honour found fault with the thesis underlying this argument.  Had the no case submission been made, it would have been open to allow an amendment to the particulars to allege a correct basis of criminal liability on the importation offences and to proceed with the trial.  Or, if that procedure would have occasioned prejudice, it would have been open to declare a mistrial and order a retrial of a case properly particularised according to law.[20]  The appellant has not identified any error in his Honour’s reasoning for rejecting the argument.

[25] For these reasons, I consider that the appellant has failed to demonstrate a viable ground of appeal against conviction.  It follows that an extension of time to appeal against conviction must be refused.

Sentence application

[26] Mr Nerbas, to whom it is convenient to continue to refer as the appellant, was 27 years old at the time of offending and 34 years old at the time of sentence.  He is a Canadian national but was resident in Australia under a permanent residency visa at the time when he offended.  He had been involved in establishing a legitimate business.

[27] The appellant’s sentence hearing proceeded upon a Statement of Facts.[21]  In the sentencing remarks, the learned sentencing judge accepted, as the prosecution had summarised from the Statement of Facts, that broadly speaking, the appellant’s role had the following two aspects:

“… One was to maintain the infrastructure used in Australia for importations, that is, the importing entity Reliable Computer Conversions Proprietary Limited (RCC), and the warehouse at Geebung.  You were a director of RCC and a signatory to the warehouse lease.  You attended on a reimbursement basis to payment of the security deposit on the lease on 23 May 2006 from your own funds, monthly rent on the warehouse thereafter and monthly rental on the Kennards Storage area.  Money was sent by Paddison to your account for your costs associated with the lease, and $25,000, being a share of money received by you and Reed from another person, was, in part, reimbursement of accrued expenses.  To your knowledge, from mid-May 2006, the company and the warehouse were for the purpose of effecting drug importations.

Secondly, you were available to provide extra labour for extraction and transport of drugs in Australia as and when called upon.  You were substantially involved in unloading the pallets of monitors from the first shipment at the warehouse and later extracting the drugs and transporting them to the city on the day of transfer to the distributors.  In August, you and Reed shifted 16 monitors from the warehouse to Kennards Storage on Handlen’s instruction.  In September, you followed the progress of the clearance and delivery of the second container to the warehouse.  You went with Reed to hire a transport vehicle on the afternoon of 20 September in preparation for the extraction of drugs and you were available to assist in that process.”[22]

[28] Her Honour took this role into account.  She described the nature of the appellant’s offending as follows:

“… You were a willing participant from the time that you were brought into the scheme by Handlen.  There was no pressure or coercion required to secure your assistance.  I accept that your motivation must have been profit and to profit substantially and, in fact, you negotiated a substantial remuneration from Handlen.  The scale of criminality of the importations was, to your knowledge, enormous, although you were not aware of the exact quantities being imported.  As with Paddison, your preparedness to be involved in repeat offending over a period of months is an aggravating factor.  You were prepared to continue with further offending beyond the September importation.  The prosecution submitted that, viewed in total, your activities over the timeframe of your involvement between May and September 2006 were considerable.  The prosecution, however, acknowledged that your activities were not so critical to the venture as the roles of others.”[23]

[29] The appellant does not challenge the accuracy of these descriptions of his role and the nature of his offending.  The learned sentencing judge emphasised that the appellant was to be sentenced solely on the basis that he did the acts particularised in Counts 5 and 11, and not on the basis of involvement in other uncharged offences.[24]

[30] Significantly, her Honour accepted that the appellant’s involvement in the two offences was less than that of Reed, and Paddison.[25]  She regarded his pleas of guilty, which were negotiated over a period of months from about June 2013, as being a matter to be taken into account in his favour.[26]

[31] A report prepared by Dr Ronald Frey,[27] a psychiatrist, was taken into account as were a number of references favourable to the appellant.  Her Honour also took into account the circumstance that during the lengthy period he had been on remand, the appellant had been unable to undertake courses that were available to sentenced prisoners; that he was a model prisoner and had assisted other prisoners in a number of ways; that he had led a blameless life without any convictions prior to the offending; and that his prospects of rehabilitation were good.[28]

[32] For obvious reasons, the submissions at sentence also dealt with the issue of parity as between the co-offenders.  The learned sentencing judge addressed this issue as it concerned the appellant in the following way in the sentencing remarks:

“As with Paddison, the prosecution argued that the ratio of non-parole period to head sentence should reflect that imposed on Reed, in a situation where overall proportionality between co-offenders is indicated. As to the issue of proportionality, I have referred to questions of parity in sentencing Paddison.  As I stated in those sentencing remarks, Paddison’s overall criminality should be considered to be greater than yours.

The prosecution argued that, making allowance for matters of mitigation and issues of parity, a sentence of 15 years with a non-parole period of 10 years would be appropriate.  But for parity considerations, the Crown submitted that the cases referred to by the Court of Appeal in R v Handlen indicated that a sentence rather in excess of that figure would also be warranted. In that regard, reliance was placed on R v Kevenaar (2004) 148 A Crim R 155.

Your counsel accepted that an appropriate head sentence was one of 15 years imprisonment, but submitted that a non-parole period should be imposed in the region of 50 per cent of the head sentence.  In arguing against the prosecution’s contention that the same ratio as imposed on Reed was unwarranted, your counsel submitted that Reed was sentenced for much more serious conduct.  It was also said that because of the section 21E discount, drawing a parity was difficult.  But of course, for parity purposes, the point of reference is the notional sentence imposed on Reed.  In addition, your counsel advanced an argument, based on the decision in Hili, similar to that argued for by Paddison’s counsel.  I note the remarks I made concerning that argument when dealing with the sentence imposed on Paddison and do not repeat them.  In addition, it was argued on your behalf as significant that Reed was sentenced for more charges than you, and that Paddison fell to be sentenced on more charges as well.  It was submitted that because of your lesser involvement, your plea to the two charges, your lack of criminal history and your prospects of rehabilitation, that a non-parole period of 50 per cent was appropriate.  It was also submitted in support of that argument that there was a range of Queensland sentences which supported the 50 per cent discount; however, I note those sentences referred to largely overlooked the developments since R v Ruha [2011] Qd R 456.

I consider that an appropriate approach, here, is one which involves imposing concurrent sentences, rather than differentiating between offences.

Mr Nerbas, would you stand.  Taking into account the submissions made, the need for reasonable consistency in sentencing and parity issues, I consider that, in respect of each offence, a concurrent sentence of 15 years with a non-parole period of 10 years is appropriate to reflect the need for a strong deterrent sentence, as well as accommodating matters in your favour.”[29]

Appeal grounds against sentence

[33] The following grounds of appeal against sentence on which the appellant relies are set out in the Form 26:

2.The Learned Judge erred by using a flawed sentencing scale and/or wrong principle resulting in the applicant not receiving equal justice, but instead was imposed with an unwarranted excessive and/or disproportionately high minimum non-parole sentence; and/or;

3.The Learned Judge erred in finding the sentence imposed on the applicant’s co-offenders original sentences, Reed in 2007 and Paddison in 2009, were not affected by error as to the ‘norm’ for non-parole periods; and/or,

4.The Learned Judge failed to adequately discount and/or to give any reduction entitlements on the applicant’s minimum non-parole term on the basis of his early guilty plea; commendable jail reports; completed rehabilitation; assistance in the cooperation of the administration of justice and him being a victim of a flawed and unprecedented lengthy and problematic prosecution.[30]

[34] All of these grounds concern the period of the sentence that the appellant must serve before he becomes eligible for parole.  At the sentence hearing, counsel for the appellant had accepted that the appropriate head sentence was 15 years.[31]  There is no challenge to that sentence.[32]  There is no complaint that her Honour proceeded upon a misapprehension as to, or overlooked relevant aspects of, the appellant’s involvement in the offending in that regard.

[35] Grounds 2 and 4 are to some extent interrelated.  Ground 3 is focused on a separate matter and it is convenient to deal with it first.

[36] Ground 3: At the sentence hearing in 2014, Paddison’s counsel argued that a sentence less than the sentence which had been imposed on his client in 2009 (19 years with a non-parole period of 12 and a half years) and later upheld by this Court, ought to be imposed on him on account of a number of factors.  One of them was that the structuring of Paddison’s 2009 sentence had been approached on the basis that a norm or standard, namely, that the non-parole period in a sentence was to be between 60 and 66 per cent of the head sentence, was to be applied.  The same norm was said to have been applied earlier in fixing Reed’s sentence in 2007.  The point made by counsel was that such a norm or standard had been deprecated in by the decision of the High Court of Australia in R v Hili.[33]

[37] In Hili,[34] the High Court approved the rejection by this Court in R v Ruha[35] of any mechanistic or formulaic approach which ensured that the proportion which the pre-release period to be served bore to the duration of the head sentence would fall within a specified range, in the field of sentencing for Commonwealth offences.  It was wrong, the High Court held, to begin from a normative starting point and then enquire whether “special circumstances” justified a departure from it.[36]

[38] The argument advanced by counsel for the appellant was a little different.  It did not seek to impugn the earlier sentences as based upon a norm.  Instead, it focused upon a submission by the Crown that the appellant’s sentence should be 15 years’ imprisonment with a 10 year non-parole period.  That submission was wrong, it was argued for the appellant, because it sought to perpetuate the discredited norm.[37]

[39] Her Honour did review the sentencing remarks in respect of Reed (2007) and Paddison (2009).  She observed in the course of her sentencing remarks concerning Paddison (2014) that her review did not indicate that a “norm” or “formulaic discount” had been applied in disregard of the individual facts of each case.[38]

[40] The appellant has not identified any aspect of these earlier sentencing remarks which he claims demonstrates error in her Honour’s observation.  Moreover, had any error been shown, it would have had particular relevance for the comparative argument pursued on behalf of Paddison which raised the earlier sentences.  As explained, the appellant’s approach was to criticize the sentence sought by the Crown against him in 2014.  Her Honour’s discussion of Hili and Ruha, her review of the earlier sentences and her observation to which I have referred, reveal that she was well aware that there was no norm to be applied.  Tellingly, her Honour said:

“It would clearly be an impermissible approach to apply a norm or formulaic discount.  In determining the non-parole period to be imposed, what must be considered is the length of time that justice requires you to serve, having regard to all the circumstances of your case.”[39]

[41] I do not accept that the circumstance that the non-parole period imposed accorded with the Crown’s submission gives rise to an inference that her Honour adopted the submission upon an erroneous footing that it reflected a “norm” that was to be applied.  This ground of appeal is without merit.

[42] Ground 2: At the sentence hearing, the appellant’s counsel submitted that the appropriate non-parole period was 50 per cent of the head sentence.[40]  By this ground and Ground 4, the appellant contends that the non-parole period of 10 years imposed is manifestly excessive and that it should be substituted by a non-parole period of between seven and a half years and nine years.[41]

[43] There are several themes to the appellant’s argument.  One is that a period of 10 years is manifestly excessive having regard to the criminality of the appellant’s offending.  Another is that the adoption of a non-parole period representing two-thirds of the head sentence for parity with Reed (two-thirds) and Paddison (approximately two-thirds) resulted in a manifestly excessive non-parole period.

[44] With respect to the first theme, the appellant makes the point that the criminality of his offending was less than that of his co-offenders.  The point is a valid one.  It was acknowledged by the learned sentencing judge.[42]  Significantly, it was reflected in the adoption of a head sentence for the appellant that was substantially less than that imposed on any of his co-offenders.  As is shown by the passages from the sentencing remarks to which I have referred, her Honour made a detailed analysis of the respective roles of Reed, Paddison and the appellant.  The analysis informed her assessment of an appropriate head sentence for the appellant as did his pleas of guilty.  Also his head sentence is very substantially less than “the vicinity of 25 years’ imprisonment”, which the learned sentencing judge observed after a consideration of a number of sentences, was the head sentence that could result for “active assistance in loading and unloading drugs of the quantity in question”.[43]

[45] Given that the head sentence accommodates for the lesser criminality of the appellant’s offending, and that he accepts that it does, the scope for challenge to the non-parole period as failing to accommodate for his lesser criminality, is necessarily limited.  The appellant has sought to mount such a challenge particularly by reference to two recent cases in which a non-parole period of less than two-thirds of the head sentence was adopted.

[46] In R v Valea, Calvo and Sanchez Barrocal,[44] sentencing occurred on 25 November 2013 upon entry of a plea of guilty to importing by Valea and pleas of guilty to possession by Calvo and Sanchez Barrocal of approximately 159 kilograms of cocaine in a pure state.  The offences were committed in connection with a single importation by a yacht.  Valea was sentenced to 25 years’ imprisonment with a non-parole period of 13 years; Calvo to 18 years with a non-parole period of 10 years; and Sanchez Barracol to 17 years with a non-parole of nine years.  The non-parole periods in these sentences ranged between 52 per cent and 56 per cent of the head sentences.

[47] In R v Serna,[45] sentencing occurred on 30 June 2014 on a plea of guilty to a single importation by catamaran of about 283 kilograms of cocaine in a pure state.  The offender was sentenced to 25 years’ imprisonment with a non-parole period of 15 years.  Thus, the non-parole period was 60 per cent of the head sentence.

[48] Taken on their own, these two cases could be viewed as indicators of a recent trend towards proportionately shorter non-parole periods.  However, reference to other contemporary cases do not support such a view.

[49] It will be recalled that in 2010, this Court refused Paddison leave to appeal against the sentence that had been imposed on him of 22 years’ imprisonment with a non-parole period of 14 and a half years, the latter being 66 per cent of the former.  It did so after a review of sentences for drug offences involving comparable quantities and kinds of drugs to which the primary judge had referred at sentence.  Those sentencing authorities, it was observed by this Court, indicated that the sentence imposed was not disproportionate.[46]

[50] Other sentences which post date the decision in Hili, indicate that a proportion of non-parole period to head sentence between 60 per cent and 75 per cent is common for offences concerning imported drugs comparable in quantity and kind to the present.  In C v R,[47] the proportion was 63 per cent (non-parole period of nine years) after allowance for both cooperation and a plea.  In R v Pak Lau, Yiu Yim, Samuel Yung,[48] the proportions were 80 per cent, 79 per cent and 59 per cent respectively (non-parole periods of 16 years, 15 years and six and a half years respectively) with moderation in the case of Yung on account of his age of 20 years.  In Thi Kim Phung Nguyen v R,[49] the proportion was 74 per cent (non-parole period of 11 and a half years); in Nguyen and Phommalysack v R,[50] the proportions were 67 per cent and 75 per cent respectively (non-parole periods of eight years and nine years respectively); and in Arenilla-Cepeda v R,[51] the proportion was 62 per cent (non-parole period of seven years nine months).

[51] It is true, as the two cases to which the appellant has referred illustrate, that there had been instances where a proportion less than 60 per cent has been adopted.  However, when they are considered with the other cases, it can be seen that the proportions of non-parole period to head sentence have fallen within a broad span.  It can also be seen that the proportion adopted in the appellant’s case falls well within that span.

[52] I pause here to note that a submission repeated by the appellant is that it is unfair that he should have to serve a longer non-parole period than Sanchez Barrocal (nine years).  That sentence did not of course, set a standard for the appellant’s sentence.  There are relevant differences with the appellant’s case.  In that case, there was one importation and one possession conviction and there was a timely guilty plea.

[53] With respect to the second theme, the approach adopted by the learned sentencing judge of imposing different head sentences to reflect different levels of criminality between the co-offenders but the same proportion for the non-parole period had precedent in the decision of this Court in R v Burling & Gill[52] which also post-dated Hili.  In that case, to which her Honour was referred, the applicants were convicted of importing a commercial quantity of ecstasy.  Burling’s head sentence was fixed at 12 years’ imprisonment and Gill’s at nine years in order to reflect a difference in degree of involvement in the offending.  The non-parole period in each case was of the order of 60 per cent of the head sentence.  For parity, the proportion in each case accorded with the proportion reflected in the sentencing of a co-offender of theirs who had cooperated under s 21E.  No error in sentencing was discerned.

[54] Given that the reflection of the appellant’s relative criminality in his head sentence was an appropriate one, there was no reason to differentiate again between him and his co-offenders via the non-parole period proportion in order to cater once again for relative criminality.  I accept the respondent’s submission that the applicant had no greater claim to mitigation or to a lower proportion for the non-parole period than Reed or Paddison, and that the sentencing consideration of deterrence applied no less to him than to the others.

[55] For these reasons, I am unpersuaded that the learned sentencing judge erred in approach to fixing the appellant’s non-parole period or that that approach yielded a non-parole period that is manifestly excessive.  This ground of appeal is not made out.

[56] Ground 4: The appellant submits that the circumstances personal to him listed in the ground of appeal were not adequately taken into account in his sentence.  He argues that they warranted a shorter period than 10 years for the non-parole period.  The submission does not withstand scrutiny.

[57] The appellant’s guilty pleas, his prior good character, his good prospects of rehabilitation, his model behaviour in prison and the inaccessibility for him of training courses were all specifically noted by the learned sentencing judge.  They were expressly taken into account by her.

[58] As well, comparison with the circumstances of the co-offenders does not indicate good reason for more favourable treatment for the appellant in terms of a lower proportion of head sentence to be served.  He shared with both Paddison and Handlen a lengthy time on remand.  The appellant contributed substantially to the duration of the remand period by his persistence in resurrecting pleas of not guilty to offences of which he plainly was guilty.  He also shared with them, as Canadian nationals, liability to deportation.  As a result, they are precluded from progressing to a lower form of prison security classification.  Hence they must serve their sentences in a maximum security prison.

[59] The co-offenders, too, had their own particular personal circumstances to be taken into account.  For example, Paddison had good prospects of rehabilitation.  Unlike the appellant, he had made a “belated statement of remorse”.[53]  Reed had pleaded guilty much earlier.  He had potential for rehabilitation, a vulnerable personality, and experienced an eating disorder.

[60] To my mind, the appellant has not established error in sentencing by a failure to take into account adequately the factors to which this ground of appeal is referenced.  It also fails. 

Disposition: As none of the appellant’s grounds of appeal against sentence has succeeded, leave to appeal against sentence must be refused.

Orders

[61] I would propose the following orders:

1.Extension of time to appeal against conviction refused.

2.Leave to appeal against sentence refused.

[62] PHILIP McMURDO J:  I agree with Gotterson JA.