R v Schelvis & Hildebrand[2016] QCA 294

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  After a ten day trial the appellants were found guilty by a jury of conspiring together and with others to import a commercial quantity of a border controlled drug, namely 3,4-Methylenedioxymethamphetamine (“MDMA”).  The appellant Schelvis was sentenced to 21 years imprisonment with a non-parole period of 14 years.  The appellant Hildebrand was sentenced to 14 years imprisonment with a non-parole period of nine years.

2. Hildebrand has appealed against his conviction and he has applied for leave to appeal against sentence. Schelvis has applied for leave to appeal against her sentence.

Hildebrand’s appeal against conviction

3. The ground of Hildebrand’s appeal against conviction is that the verdict is unreasonable and cannot be supported with regard to the evidence.  That ground

“…requires the Court to make an independent assessment of the sufficiency and quality of the evidence and to decide whether upon the whole of the evidence it was reasonably open to the Court to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged.  If the Court harbours a reasonable doubt about the appellant’s guilt, it will only be where the jury’s advantage of seeing and hearing the evidence can explain the jury’s different conclusion that the Court may decide that no miscarriage of justice has occurred; if, after “making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and set aside a verdict based upon that evidence.””^[1]

4. The offence charged against Hildebrand and Schelvis was created by s 11.5(1) of the Criminal Code (Cth).  Section 11.5(2) provides that:

“For the person to be guilty:

1. the person must have entered into an agreement with one or more other persons; and

2. the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

3. the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.”

5. The offence which it was alleged Hildebrand, Schelvis and others intended would be committed pursuant to their alleged agreement was importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code (Cth).

6. The Crown case against Hildebrand was based mainly upon police surveillance evidence and it also relied upon forensic and other evidence and some admissions made by Hildebrand. The following facts are not contentious in this appeal. On 21 January 2013, 104 kilograms of MDMA was shipped into Sydney from Spain in a pallet that contained olive oil bottles.  Most of the bottles contained olive oil but 54 of the bottles instead contained a pure liquid form of the drug.  The pallet was consigned to a company of which Schelvis was the sole director, secretary and shareholder.  Schelvis is Hildebrand’s half-sister.  She arranged with others to import the pallet into Sydney.  During many months leading up to and for some time after the arrival of the pallet Hildebrand communicated by mobile phone with a person known by various names (one of which, “Hertz”, I will use in these reasons) about matters relating to the importation of the pallet, Hildebrand communicated by mobile phone with and met David Queen (who will be identified in these reasons as “Queen”) for the purpose of making arrangements to receive and receiving cash, and Hildebrand also collected money from a Western Union transfer sent by Hertz.  Hildebrand acted in those ways at the request of Schelvis, he passed on the money he received to Schelvis knowing that she intended to use the money to pay expenses she incurred in relation to the importation, and he kept her informed of his communications with Hertz and Queen.

7. The real issue at trial concerned the fault element of intention to participate in the importation of a border controlled drug. If Hildebrand did so intend, the evidence in the Crown case was amply sufficient for the jury to conclude beyond reasonable doubt that Hildebrand had committed overt acts pursuant to an agreement he had made with Schelvis and others who, like him, intended that the offence of importing a commercial quantity of the border controlled drug be committed.  The Crown contended that an inference that Hildebrand intended that drugs should be imported should be drawn from the alleged fact that, when Hildebrand acted in the ways briefly summarised in the preceding paragraph, he did so knowing that Schelvis and others intended that a border controlled drug would be imported in the pallet with the olive oil.

8. Hildebrand and Schelvis each gave evidence in their own defence. Hildebrand gave evidence to the effect that he and Schelvis were very close and he was protective of her, he understood that she was seeking to re-establish an importation business she had previously run with a partner before their relationship broke down, he offered to help her set up that business again, he understood that she was hoping to import wine from Spain, and he had no knowledge of any importation of drugs. Hildebrand said that Schelvis told him that she might be borrowing money from people with whom she had not had any relationship: because of the kind of people she might have met in her work as an exotic dancer, a stripper, and an escort, Hildebrand assumed that the lenders might be loan sharks, bikies or anybody.^[2]  Hildebrand gave evidence that Schelvis explained that the money would be provided within Australia by a man known to her only as “Jack” (who was in fact Queen) who was involved in the sale of expensive watches.^[3]

9. Hildebrand argued that his conduct relied upon by the Crown was consistent with him merely assisting Schelvis with what he thought was a legitimate importation, including by protecting her from potentially unsavoury lenders of the money she needed to finance that importation, and that this was consistent with his familial affection for her. As the respondent argued, Hildebrand’s evidence that he sought to protect Schelvis from potentially unsavoury lenders was not reconcilable with some of the evidence Schelvis gave of her personal and financial relationship with Hertz. Schelvis gave evidence that Hertz gave her money in September and November (the cash given by Queen to Hildebrand, who passed it on to Schelvis) and by the Western Union transfer (which Hildebrand also passed on to her), and there was also a potential payment in January which did not go ahead.^[4]  She had a sexual relationship with Hertz, through that relationship he knew of her poor financial situation, and the money received by Hildebrand was a gift by Hertz to her; Schelvis referred to Hertz as her “sugar daddy”.^[5]  Hildebrand gave evidence that Schelvis never referred to Hertz as some form of “sugar daddy” and she described him as a business associate.^[6]  Schelvis denied that Hertz was a business partner.^[7]  She said that she did not believe that she had said anything to Hildebrand about the money being a loan rather than a gift from her sugar daddy.^[8]

10. As the respondent also argued, the jury might have regarded it as implausible that Hildebrand and Schelvis (who on their own evidence were very close to each other and communicated frequently) remained at cross-purposes over many months about the basis upon which the money was transferred from Hertz via Hildebrand to Schelvis. If the jury preferred Schelvis’s apparently credible evidence of her relationship with Hertz and that he gave her the money as a gift, that was of itself a sufficient basis for the jury to reject the explanation which Hildebrand gave for acting as an intermediary between Schelvis and the provider of finance for the importation.

11. It remained necessary for the jury to consider whether the evidence in the Crown case proved Hildebrand’s guilt beyond reasonable doubt. In my view, such a conclusion was reasonably open to the jury. The jury could readily find that the totality of the circumstances proved in evidence excluded any hypothesis other than that Hildebrand did know and intend that drugs be imported into Australia in the shipment which also included the olive oil.

Registration and use of a phone in a false name

12. Hildebrand gave evidence that in the middle of 2012 Schelvis gave him a mobile phone. She told him that she was trying to organise some money and needed him to keep an eye on the phone and to get people to call that phone or get in touch with her through that phone so that they could lend her money.^[9]  He asked her why she needed a new phone to do that and she said “it’s just best, because she didn’t know, or have a relationship with, the people that she might be lending the money from [sic], and that this…kept them at arm’s length, or created some anonymity…”.^[10]  Hildebrand had his own mobile phone at the time.  He said that Schelvis asked him to register a Sim card for the phone she gave him in a made up name.  He registered it in the made up name Marcia Streep.^[11]  In addition to Hildebrand’s evidence about protecting Schelvis from unsavoury lenders (which was inconsistent with some of Schelvis’ evidence of her relationship with Hertz and his gift of the money to her), his explanation for agreeing to do this was:

“Well, I wanted my sister to get up on her feet and get her business back up and running, and I also knew that her credit rating was probably not the best, and…I just didn’t want her to be stripping, and living that kind of lifestyle…”.^[12]

13. Telephone usage records showed that the phone was used (by Hildebrand, as he acknowledged in his evidence) in communications with Queen.  Hildebrand’s evidence did not explain how the use of his own mobile phone would have allowed the suggested moneylenders, who were in contact with Hildebrand only by phone, to identify him or Schelvis.  Hildebrand’s explanation for registering the phone in a false name also did not gel with his subsequent participation in the Western Union transfer.

14. Hildebrand gave evidence that, after Schelvis told him she was not able to get any more finance for her importation and he said he would not lend her money, she told him to throw the phone away in the ocean.^[13]  Hildebrand threw the mobile phone in the ocean within a couple of days after Schelvis asked him to do so.^[14]  He then sent a message to Schelvis, that “I took my little friend for a swim”.^[15]  This conduct reeks of knowing participation in a criminal enterprise.

15. As the respondent submitted, the jury could reasonably find that Hildebrand could not have thought that the phone was necessary for the purpose he described of securing anonymity from unsavoury lenders and instead that his conduct in registering the phone in a false name, using that phone in communications about the shipment, and subsequently disposing of it by throwing it in the ocean was explicable only as a stratagem to ensure that the communications could not be traced back to him by the authorities and used by them as evidence of his involvement in the conspiracy to import the drug.  That inference is supported also by the guarded language used by Hildebrand in his communications with Schelvis (as, for example, in his message quoted in the preceding paragraph of these reasons).

September 2012 meeting at Helensvale

16. Telephone records showed frequent contact between the Marcia Streep mobile service and Queen’s mobile service before a meeting at Helensvale in the afternoon of 2 September 2012.^[16]  In evidence-in-chief Hildebrand described the lead up to the meeting and the meeting itself.  He received a text message on the Marcia Streep mobile from a person he did not know asking when he would like to meet.  The meeting was organised to take place in Helensvale.  Hildebrand flew from Sydney to Brisbane and travelled by hire car from there to Helensvale.^[17]  He received a text message saying where the meeting would occur (at a café).^[18]  At that time Hildebrand did not know anything about the person he would be meeting.^[19]  Hildebrand sent a text as he arrived at the café and a man stood up and nodded to him to go outside; Hildebrand followed the man outside and said good day.  There were no introductions and no names were used.  The man simply said “[h]ere you go, mate” and handed Hildebrand a newspaper with an envelope concealed in it.^[20]  Hildebrand saw that the envelope seemed to contain a bundle of notes inside it.  Schelvis sent him a text message with the bank account into which he should deposit the money.  He made that deposit on the day after the meeting.^[21]

17. In cross-examination Hildebrand agreed that he had expressed a concern to Schelvis “about the style of things she may be involving herself in…with this kind of an exchange”,^[22] and he “just let her know that, you know, it was a strange way to do business, a strange way to get money” but he said that he guessed that “were [sic] the options that were left to her.”^[23]  The jury could conclude that Hildebrand knew that these clandestine arrangements for the collection of cash were inconsistent with the financing of an innocent importation.

18. In relation to this meeting and the subsequent meeting in November, Hildebrand referred to evidence that he booked flights, cars, and accommodation in his own name and that he attended two theme parks on the first trip. Hildebrand argued that this evidence suggested that he did not have knowledge that there was anything sinister about the importation which he was assisting Schelvis to arrange. On the other hand, as the respondent submitted, it was not to be expected that Hildebrand would have a driver’s licence or a credit name in a false name which would make it possible for him to organise flights, hire cars, and accommodation in a name other than his own.  The jury could regard the point as having little weight in light of the very unusual and covert way in which Hildebrand collected the cash from Queen.

November 2012 meeting

19. As Hildebrand knew,^[24] Schelvis was travelling in Europe in October 2012 with a view to returning on about 31 October.  Whilst she was in Ireland she telephoned Hildebrand.  She said that “our friends” had “said something about Friday”, and she asked him whether or not he had his phone on (presumably a reference to the Marcia Streep phone).  Hildebrand said that the phone had been on for the past two weeks but he had not heard anything.  Schelvis said that she had “just managed to have a little look last night”, that things had been delayed a little bit, and that their friends had said that if Hildebrand had to go to Queensland, “they are just going to put another 500 on top”.  Hildebrand asked Schelvis to tell them to do that “because…I don’t know if they are going to need to do that or not, but if they are, that would be great”, and Schelvis said that “they know”, that “everything is organised” and that she just wanted to let Hildebrand know that he will get a call probably next Friday.^[25]

20. As foreshadowed, Queen contacted Hildebrand by SMS on 30 October. They made arrangements to meet at the same café in the afternoon of 6 November.^[26]  On 31 October, when Schelvis had returned to Australia and was in Cairns, Schelvis rang Hildebrand.  He told her that he had heard from “our friends” and that he was going to go up and “get the stuff” at the “same place”.  Hildebrand said that he thought it was better that he do it because he did it last time; Schelvis responded that “that’s your job bro, I’m not going do your job”.  They discussed who was to put the money into Schelvis’ account, and Schelvis said that it “just has to go in, as soon as possible so I can make payments for everything”.^[27]  On 5 November Schelvis and Hildebrand had two conversations by telephone.  They again discussed who should put the money into the account.  Schelvis was thinking about coming down to the meeting so she could put the money in herself.  She told Hildebrand that, if he wanted, she could go with him and he could drop her “off at a servo or something for a bit”; he mentioned that she could “wait in a café or something like that”.^[28]

21. Hildebrand said in cross-examination that he noticed that the phone number by which he was contacted to organise this meeting was different from the number used on the previous occasion. He agreed that in a voicemail message to Schelvis he had referred to the people with whom he met as “our friends” and that the exchanges between him and them revealed in the police interceptions were in friendly terms.^[29]  Hildebrand subsequently agreed that he consistently referred to the providers of the cash as “our friends” and gave as his explanation that this was suggested by Schelvis.^[30]  He said that he volunteered to attend the second meeting because it might have been a different person and he was just being protective.^[31]  When Hildebrand was asked whether Schelvis could have gone to the meeting herself, since she was in the country at that time, Hildebrand said that he was not sure why she could not go.^[32]  Subsequently, he said he did not want Schelvis to take the risk of receiving the cash.^[33]  He acknowledged that Schelvis referred to it as his “job” to receive the cash but denied that it was his role and said that he was just trying to help out Schelvis.^[34]

22. The meeting on 6 November and the movements of Schelvis and Hildebrand were observed and photographed. Hildebrand acknowledged that the meeting took place in a way which was fairly similar to the previous meeting. Very little more passed than him being given an envelope which he put into his back pocket.^[35]  Schelvis waited at a coffee shop whilst Hildebrand received the envelope from Queen on a footpath near the coffee shop.  Hildebrand and Schelvis then went together to a bank nearby where $6,280 was deposited to the Sekhmet Services account.^[36]  Schelvis and Hildebrand flew home the same day.  Before that money was deposited the account balance was less than $150.  On the day following the deposit about $4,000 was transferred and used to pay the supplier of the olive oil.^[37]  Hildebrand’s explanation for not suggesting to Schelvis that, because she was going to Helensvale herself, there was no need for him to do so was that, although it would have saved him the trouble of flying up from Sydney and spending the day attending to the collection of the cash, and then flying back, “I also got to see my sister”.^[38]  He added that he “felt safer” and he did not want his sister exposed.^[39]  Schelvis’ explanation for why she flew down from Cairns for one day to wait nearby while Hildebrand collected the cash was that it was “mainly to make sure that it was happening” and she was “excited about the fact that [Hertz] was coming through…with the money”.^[40]

23. The jury could reject these unconvincing explanations and accept at face value both the evidence that Hildebrand and Schelvis repeatedly described the suppliers of the finance as their “friends” and the evidence that they referred to Hildebrand’s conduct in receiving the money from Queen as Hildebrand’s role. It would not have been at all unreasonable for the jury to regard the furtive way in which the finance for the importation was supplied to Schelvis by the secretive delivery of cash to Hildebrand as powerful confirmation that this was part of his role in the plan to import dangerous drugs.

Western Union payment

24. Schelvis telephoned Hildebrand on 20 November 2012. She expressed a concern about being short of about €700 which needed to be paid “before the stuff can leave Spain.” She asked Hildebrand to text Hertz informing him of that. Schelvis said that she did not think that Hildebrand had the money to pay the shortage. He replied that he was “stone flat mother-less-ly broke at the moment.”^[41]  (Hildebrand’s bank account statement reveals that he had less than $1,300 in that account.^[42])  Subsequently Hildebrand said that he was “happy to loan money when I’ve got it, but at the moment…”.^[43]  Schelvis said that she would send a text to Hildebrand for Hildebrand to send a text in the same terms to Hertz.^[44]

25. On 22 November 2012 Hildebrand phoned Schelvis. Schelvis said that she wanted to ask if it was appropriate for Hildebrand to SMS some details to Hertz about a Western Union transfer.  Hildebrand asked her what she thought about a Western Union transfer and Schelvis responded that she thought it was alright.  Hildebrand agreed.  Schelvis said that Hertz wanted to send “a little bit of something via WESTERN UNION”, which would be something like the equivalent of six or seven hundred euros.^[45]  Hildebrand said that he thought that it was “fairly safe”.^[46]

26. In cross-examination Hildebrand disagreed with the suggestion that the safety he had in mind when he described the use of Western Union as “fairly safe” was not whether Western Union would safely transfer the money but whether a transfer of this kind, which would create a record, would be safe for him to be involved in.^[47]  When it was put to Hildebrand that it would have been just as easy for Schelvis to go to a Western Union office, Hildebrand said that he was not sure where she was at that time.  He agreed that Western Union had agents everywhere but speculated that perhaps Schelvis was relying on the fact that he lived close to a major shopping centre.  (There was no reference in the conversations to Schelvis having any difficulty in using Western Union.)  Hildebrand agreed that the use of the Western Union transfer could not create any risk for Schelvis such as he had referred to when explaining why he participated in the face to face transfers with the unknown person at Helensvale.^[48]  Hildebrand sent a text back to Hertz with his details and subsequently sent a text to Schelvis telling her he had done so.^[49]

27. Again, the jury could reject Hildebrand’s unpersuasive explanations of this conduct. The jury could infer that the expressions of concern by Schelvis and Hildebrand about the safety of Western Union reflected there appreciation that, unlike the previous deliveries of cash, a Western Union transfer would result in the creation of a record of the transaction (as occurred^[50]).  Furthermore, because there was no obvious reason why Schelvis could not have arranged for a Western Union transfer with Hertz, the arrangement for Hildebrand to organise the Western Union transfer supplies further support for the Crown’s case that, as part of the attempt to prevent the authorities discovering the plan, it was Hildebrand’s role in the planned importation of the drug to receive the money required to pay importation expenses.

28. After Hildebrand sent a SMS message to a Dutch mobile number which read, “Hi mate, send to [Hildebrand’s name and address]”,^[51] Hildebrand received an SMS in the following terms:

“Hi, my friend [YK] from Almere NL paid the E750 for your Ebay watch via westernunion”.

The SMS also gave the Western Union receipt number, which was needed by Hildebrand to collect the money.^[52]  In cross-examination Hildebrand said that he did not know who YK was and he agreed that he had not ordered any Ebay watch.^[53]  His explanation was that, “I didn’t know if, perhaps, somebody owed [Hertz], or one of [Schelvis’] other business partners, money… I didn’t know if [YK] was a business partner of [Schelvis], or somebody else that was going to send her money…”.^[54]  This manifestly unlikely explanation could readily be rejected by the jury.

29. On 23 November 2012 Hildebrand telephoned Schelvis,^[55]  Hildebrand said that he had picked up the money and was about to put it into Schelvis’ account.  Hildebrand said that it was less than $1,000 so that “shouldn’t be too much of a drama, I’ll just deposit into [sic] your account.”  As the respondent submitted, the jury could consider that this reflected an ongoing concern about the identity of the depositor to the account which would not make sense if the transaction was innocent.

Breakdown of communications

30. The bill of lading for the shipment, ostensibly of wine and olive oil, is dated 6 December 2012.^[56]  On 19 December 2012 Schelvis sent an SMS to Hildebrand telling him to keep his phone on that week.^[57]  Queen attempted to contact Hildebrand on 22 December but dialled the wrong number in numerous attempts to do so.^[58]  Subsequently, on 6 January 2013, Hildebrand rang Schelvis and said that he had missed a phone call the day before last and had been sending a text every couple of hours saying that he was around and please to contact him.^[59]  That is reflected in a series of unanswered calls and messages from the Marcia Streep mobile to Queen.^[60]  On 5 January 2013 Queen was instructed by his father James Queen not to make contact but to “just throw number away”.^[61]  Queen left Australia on 7 January 2013.^[62]  Schelvis and Hildebrand met on 9 January.  Hildebrand said in evidence-in-chief that Schelvis told him that she was not going to be able to get any more finance and she asked him to lend her money to get the wine and olive oil released from the dock or the ports.  Although he was willing to help Schelvis with his efforts and to some extent financially, he was not prepared to take the risk of getting involved with her in business.  He also said that he did not have money to spare.^[63]

31. Hildebrand argued that the evidence that Schelvis twice requested Hildebrand to lend her relatively small amounts of money to assist her with the shipment (on the second occasion to retrieve the shipment from the docks) and Hildebrand refused to do so suggested that Hildebrand did not know that he had involved himself in the importation of the drug.  Hildebrand argued that if he had been knowingly involved in the importation of the large quantity of MDMA it would have been remarkable that he would not have lent her the money.  That argument is not persuasive.  Hildebrand’s own evidence was that he had very little money.  He did have credit cards upon which he could have drawn, but that would have created records which would have connected him with the importation.  Further, the evidence did not reveal the extent of the reward to be earned by Hildebrand upon a successful importation so that not much could be drawn from his refusal to advance the money required by Schelvis.  Hildebrand’s refusal to lend her the money was a matter for the jury to consider but it did not significantly detract from the circumstances relied upon by the Crown.

Method of communications

32. The methods by which Hertz, Hildebrand and Schelvis communicated about the importation may be illustrated by some examples. On the day of the second meeting between Queen and the appellant at Helensvale, 6 November 2012, a Dutch phone number used by Hertz sent SMS messages to Hildebrand stating, “You’ve got mail”.^[64]  He replied that he had tried checking mail but the account was not active.^[65]  He then received a message from the same number that, “It is the other one… amigo”.^[66]  (It appears the Amigo was an email account or possibly a Skype account.)  Hildebrand subsequently contacted Schelvis by telephone and told her that there was apparently a message “for us, or for me, at AMIGO” and he asked her whether she understood that; she said that she did and Hildebrand asked her to check the mail at Amigo immediately for him.^[67]  Six minutes later Schelvis rang Hildebrand and told him that there was nothing major on there and it was just a question whether someone had tried to contact Hildebrand.  Hildebrand replied that somebody had contacted him (a reference to the mobile contact by Queen making arrangements for Hildebrand to collect the cash for the importation expenses).^[68]  Hildebrand then replied to the Dutch number stating that he “had contact with our friends, all is good” and that he was on the way to the meeting; Hildebrand also asked, “[h]ow are you doing mate?”.^[69]  There were similar patterns of communications on 12 and 13 November,^[70] 17 December^[71] and 31 December.^[72]  On 15 November 2012 Hildebrand asked Schelvis whether he should be able to check Amigo.  She responded, “No”.  Hildebrand said that, “they keep on telling me, I need to”.  Schelvis replied, “No, … he just wants me to be able to have a message through you, that I should check.”^[73]

33. Schelvis had her own mobile phone but she did not have mobile telephone communications with Hertz (apart from what might be regarded as an urgent communication on 20 November 2012 when the supplier of olive oil in Spain would not hand over the goods to Hertz without authorisation from Schelvis).  Another peculiar example of communications about the shipment was that on one occasion Schelvis asked Hildebrand to send an SMS to Hertz on her behalf (see [23] of these reasons).

34. Hildebrand argued that the fact that Hildebrand was not given access to the Amigo account suggested that he did not have full knowledge of and was not a party to the conspiracy to import drugs. That argument does not take account of the fact that Hildebrand knew that he was not permitted to have access to the Amigo network. The pattern of communications was obviously abnormal for an innocent enterprise. The jury could reasonably conclude that the methods of communication were chosen to make it more difficult for police to discover evidence of the conspiracy to import drugs and that Hildebrand must have understood as much.

26 February 2013 communications

35. The respondent argued that communications on 26 February 2013 could be regarded by the jury as having been informed by Hildebrand’s awareness that the importation included illicit drugs.

36. Upon the Crown case, the conspiracy to import drugs had broken down by 9 January 2013, when Schelvis had told Hildebrand to throw away the Marcia Streep mobile phone. Also on 9 January, Schelvis telephoned her customs broker and said that she could not afford to make the payments required to clear the import. On 26 February Hildebrand rang Schelvis using his own phone.  Schelvis told Hildebrand that “they’re going to leave it there and it’s going to be destroyed apparently they’re not going to get it back.”  Hildebrand told Schelvis that she should “let them know”.  She responded that she did not know how to do that because they were not responding and that the only contact she had would be through Hildebrand.  Hildebrand said that he would send a text (which, in the context of previous communications, suggested that he would send a text message to Hertz).^[74]  About 20 minutes later Hildebrand sent a message to the Dutch mobile number: “Hello mate, how are you going?  Sis very urgently needs to get in contact with you, she needs to let you know some very important information!!  Thanks :)”.^[75]  Hildebrand informed Schelvis of that message in two message to Schelvis, in the second of which he included a copy of his message to the Dutch mobile number.^[76]

37. As the respondent argued, these messages suggested a concern shared by Hildebrand and Schelvis that Hertz should be urgently informed about the potential destruction of the imported product; the jury could regard this as an indication of a shared awareness of Hertz’s special interest in the shipment, as a party to the drug importation.  Hildebrand argued that it was remarkable that in the entirety of the period of about nine months (July 2012 until March 2013) that Schelvis and Hildebrand were under extensive Federal police surveillance there was no direct mention of drugs.  As the respondent pointed out, however, nor did they mention wine or olive oil as the product to be imported.

38. Hildebrand argued that his offer to assist and his assistance of Schelvis in this importation was consistent with the evidence that he and Schelvis gave that he had assisted her with the previously legitimate importation business run by her and then partner.  That evidence does not explain Hildebrand’s participation in the secretive delivery of finance, his registration and use of a mobile phone in a fake name, the method of and guarded language in communications about the shipment, or the other circumstances relied upon by the Crown.

Conviction appeal: conclusion

39. The circumstances proved in the Crown case made it reasonable for the jury to conclude that, notwithstanding the evidence in the defence case (which included evidence as to Hildebrand’s good character), the prosecution had proved beyond reasonable doubt that when Hildebrand engaged in the conduct discussed in these reasons he knew of and intended the importation of the drug. That was the real issue in the trial: see [6]-[7] of these reasons. I conclude that it was reasonably open to the jury to find upon the whole of the evidence that the Crown had excluded any hypothesis consistent with Hildebrand’s innocence of the offence charged against him.  The verdict was not unreasonable.  Indeed, in my view there was a strong circumstantial case against Hildebrand.

Sentence applications

40. As I mentioned at the beginning of these reasons, Schelvis was sentenced to 21 years imprisonment with a non-parole period of 14 years and Hildebrand was sentenced to 14 years imprisonment with a non-parole period of nine years.  Schelvis and Hildebrand were sentenced together with Queen, who pleaded guilty to the same offence.  It is necessary to refer to the sentence imposed upon Queen because Hildebrand argues that a discrepancy between his sentence and Queen’s sentence gives rise to Hildebrand having a justifiable sense of grievance.  Queen was sentenced to 17 years imprisonment with a non-parole period of 10 years.  In each case there was a declaration that the time spent in pre-sentence custody was deemed to be time already served under the sentence.

Circumstances of the offences

41. The sentencing judge made the following findings. Before July 2012, a syndicate of European-based persons settled on a plan to smuggle into Australia a large quantity of MDMA in liquid form. The members of that syndicate are unknown. The MDMA was concealed in the shipment from Spain. The syndicate may have included James Queen, David Queen’s father, as well as a Dutch man, Gerrit Bos (referred to in the previous section of these reasons as “Hertz”). They (and other person) were probably not involved in the upper echelons of the conspiracy. James Queen took and acted on instructions from someone higher in the organisation and Bos was too closely connected to Schelvis and Hildebrand to have been at a higher level than a mid-level organiser.  At the upper levels the conspiracy was marked by a considerable degree of sophistication and secrecy, and required considerable funding to source and obtain, or produce in Europe, such a vast quantity of liquid MDMA: a little over 104 kilograms in pure weight of liquid MDMA was concealed inside 54 bottles that once held olive oil.  That quantity of the drug was sufficient to produce 1.37 million ecstasy tablets with an estimated street value of between $34 million and $54 million.

42. The success of the conspiracy depended upon the recruitment of a person or persons in Australia who would be likely to attract the least amount of attention from authorities, as well as a person or persons to control communications and advance funding to the actual importer.  Schelvis was an ideal choice because she had an established connection with Spain, she had previously imported wine and olive oil from that country, she had no previous criminal convictions, and she was gullible.  She came into contact with Bos after 7 June 2012 and by no later than 11 July 2012 had agreed to participate in the conspiracy as the actual importer.  Initially she had insufficient funds to pay her Spanish supplier for the wine and olive oil that formed the legitimate part of the shipment.  Between 7 June and 11 July she was promised money to pay for those goods and other expenses associated with the importation.  That money was ultimately provided by Queen through Hildebrand to Schelvis.  Queen arrived in Australia with his partner on 1 July 2012 and resided in the Gold Coast, solely for the purpose of the importation.  He had earlier been provided with $30,000 and he was also given a considerable amount of money, which was said to be for expenses associated with his stay.  Queen used encrypted email to communicate with his father.  A code was also used to communicate other information necessary for the success of the importation.

43. The point of entry into Australia for the container intended to carry the liquid MDMA was Sydney. Hildebrand lived in Sydney. Schelvis was often away from Sydney in the course of her work. By 29 June 2012 Hildebrand had been recruited by Schelvis to participate in the conspiracy.  On 29 July 2012 Hildebrand registered a mobile phone in the false name Marcia Streep.  The number for that telephone was given to Schelvis who in turn gave it to Bos.  Ultimately that number found its way to James Queen in England, who provided it to Queen as the means to contact Hildebrand.  On 1 September 2012 Hildebrand travelled from Sydney to Brisbane, and from there to Helensvale, to meet Queen to receive money on behalf of Schelvis.  Queen gave $4,000 in cash to Hildebrand who, on instructions from Schelvis, deposited it into the bank account of Sekhmet Services on 3 September 2012.  On 24 September 2012 Schelvis travelled to Thailand and met Bos.  On 9 October 2012 Schelvis travelled to Spain and, with Bos, visited the premises of the wine exporter to discuss her shipment of wine.  She told the exporter that she wished to buy a pallet of olive oil from a supplier elsewhere in Spain and secured the wine exporter’s agreement to receive and store that pallet for subsequent incorporation in the shipment to be exported to Australia.  Whilst overseas Schelvis instructed Hildebrand to keep the Marcia Streep mobile switched on.  On 30 October 2012, Hildebrand received a text message on that telephone from Queen, which ultimately led to the second (6 November 2012) meeting between Queen and Hildebrand at Helensvale.  With Schelvis waiting nearby, Queen gave Hildebrand $6,280 in cash.  Hildebrand and Schelvis together deposited that money into the Sekhmet Services account.  On 8 November 2012 Schelvis used some of that money to pay for the shipment of olive oil.  On 23 November 2012 she transferred money to the wine exporter to pay for freight costs associated with the shipment.  On 19 November 2012, Bos, whilst at the premises of the olive oil supplier, contacted Hildebrand in relation to the release of the pallet of olive oil.  Hildebrand relayed a message to Schelvis.  That resulted in the release of the pallet to Bos.  Queen transported it to the premises of the wine exporter the next day.  Before he did so, the contents of 54 bottles of olive oil were replaced with liquid MDMA.  On 20 November 2012, the wine exporter advised Schelvis of a requirement for payment of a further sum of money before the container could be shipped.  Schelvis instructed Hildebrand to contact Bos to obtain additional funds.  That occurred and the funds were transferred via Western Union to Hildebrand on 23 November 2012.  Hildebrand paid that sum of $890 to the Sekhment Services account.  The container left Spain on 6 December 2012.

44. Schelvis needed a further sum of about $8,000 to pay costs associated with the import before the container could be released to her in Sydney. She instructed Hildebrand to keep his Marcia Streep mobile telephone on, which was an indication to him to expect contact from Queen about another money transfer. On 20 December 2012 Queen was instructed by his father to transfer £7,500.  Queen unsuccessfully attempted to contact Hildebrand, because he used the wrong number initially.  Hildebrand and Schelvis were in communication about why no contact had been made to arrange the transfer.  James Queen subsequently sent the correct number in code to Queen.  Queen sent a text message using that correct number and attempted to call it many times.  The number was not answered because Hildebrand had left the Marcia Streep at his home when he travelled to Newcastle to help a friend move house.  After the failed attempts to contact Hildebrand, James Queen was instructed to tell Queen not to answer calls by Hildebrand and to throw away his phone.  Thereafter Queen made no further attempt to contact Hildebrand. Hildebrand saw the record of missed calls on the Marcia Streep phone on 5 January 2012 and attempted to call Queen.  Those calls were not answered.  On 6 January 2013 Schelvis and Hildebrand discussed the absence of any contact.  By 8 January 2013 Schelvis had been told that no funds would be forthcoming and the importation would not proceed.  It is likely that this information was conveyed to her by Bos by an anonymous email communication.  Schelvis informed her freight forwarder that she could not afford to pay for the clearance of the container.  Subsequently Schelvis and Hildebrand discussed what, if anything, they should do.  They agreed to dispose of the Marcia Streep mobile phone.  Hildebrand threw it into the ocean.

45. As instructed, Queen left Australia on 7 January 2013. He met a co-conspirator in Germany and was told he could not return to Australia. Queen’s partner left Australia on 22 January 2013 and returned to England. The container arrived in Sydney on 21 January 2013.  In subsequent weeks, Schelvis was faced with a dilemma.  The chances of detection by authorities were high if she left the container on the wharf uncollected, since her name was all over the importation.  For that reason she attempted to raise enough money to liberate the container but was unsuccessful.  Schelvis also instructed Hildebrand to inform Bos about the potential destruction of the contents of a shipment if funds for its release were not forthcoming.  On 26 February 2013 Hildebrand complied with that instruction.  Schelvis also investigated with the freight forwarder and others, including the wine exporter, the possibility of returning the shipment to Spain, but that turned out not to be feasible.  Schelvis and Hildebrand were arrested in March 2013.  About a week later Queen was arrested in England, held in prison, and extradited to Australia.

46. The sentencing judge made the following findings about the individual involvement of each defendant in the conspiracy.

47. Schelvis was extensively involved in the conspiracy. She (by her company) was the actual importer and she dealt directly with Bos. She purchased the wine and olive oil, arranged for their importation, made payments as required to the suppliers, and arranged for clearance of the product on arrival (subject to her obtaining sufficient funds to do so). Schelvis co-ordinated the receipt of money through Hildebrand to obtain funds and arranged temporary storage for the container for what was expected to be two to three weeks after the container was released from the wharf. It was intended that she hand over the drugs to another person or persons involved in the conspiracy after she had stored them for two or three weeks.  Schelvis recruited Hildebrand to assist her, which did her no credit at all.  She was in regular communication with Bos through the use of an anonymous email service or messages conveyed by Hildebrand.  It was highly probable she provided all of the instructions on which Hildebrand acted.  She travelled overseas in September and October 2012 to facilitate the criminal enterprise and met persons, including Bos.  She arranged with the wine exporter to accept the olive oil and consolidate it (which she knew included the drugs) with the wine products for the shipment.

48. Queen was concerned in the management of communication with Hildebrand and the provision of funding through Hildebrand to Schelvis. He was in Australia from 1 July 2012 until 7 January 2013.  His role was of sufficient importance to justify him being in the country for that period.  Queen engaged regularly in coded and encrypted communications with his father to receive instructions and information, he arranged meetings with Hildebrand on two occasions to give him cash, and he attempted to contact Hildebrand between 22 December 2012 and 5 January 2013 to transfer a further sum of money for him to give to Schelvis.  He expected also to have a further role after the arrival of the container; he extended the lease of his premises on the Gold Coast for several months beyond the date when he departed in 2013.

49. Hildebrand’s role was more limited than the roles of Queen and Schelvis. He was to act as an intermediary between Queen and Schelvis and he was the receiver of funds on behalf of Schelvis that were necessary for the operation. He was involved from the end of July 2012 until at least January 2013. Hildebrand registered a mobile number in a false name to be used exclusively for communications with Queen. He received money on behalf of Schelvis on three separate occasions, two of which required him to travel from Sydney to Helensvale. He offered to travel again to Queensland to receive further cash from Queen to apply it to anticipated expenses after arrival of the container. When the conspiracy broke down, Hildebrand disposed of the mobile telephone he had registered in a false name. He discussed with Schelvis what to do in the aftermath and followed an instruction given to him by Schelvis to communicate to Bos that the shipment was in danger of being destroyed.

50. Each of Queen, Schelvis and Hildebrand knew that MDMA was contained in the shipment. It is unlikely that any of them knew the precise quantity. Queen was aware that the quantity of MDMA concealed in the container was large. Schelvis must have been aware that the quantity of MDMA was large; she was in direct contact with Bos, she made arrangements for the shipment, including travelling to Spain to do so, she was aware that the MDMA would be concealed within a shipping container, she was aware of the degree of sophistication of the communications, all expenses associated with the importation, apart from the final sum, were readily provided when requested, and she stood to gain financially from her participation.

51. Although Hildebrand was aware MDMA would be concealed in a shipping container, the sentencing judge was not persuaded that Hildebrand had any particular awareness of the vast quantity of MDMA that was concealed or that the quantity was large. It was more probable than not that he had a significantly lesser appreciation of the quantity than did Schelvis; the recorded communications between Hildebrand and Schelvis did not reflect a particularly heightened state of anxiety on his part about the fate of the shipment, he appeared not to have taken steps to attempt to obtain money to secure its release from the wharf, at times he did not follow instructions given to him by Schelvis, and on occasions he used his own mobile telephone to communicate with Bos. Those facts did not sit happily with Hildebrand knowing of the great jeopardy he was in if the MDMA was detected by authorities. On the other hand, Hildebrand purposely communicated with Queen and Bos mostly using a mobile telephone registered in a false name. Hildebrand must have known that the quantity of MDMA concealed in the container was substantial at least.

52. The sentencing judge found that Queen stood to profit the greatest amongst the three persons being sentenced. When the conspiracy broke down Queen remarked that he had “lost out on a fortune”. Otherwise the evidence supported a finding that Queen was to receive a sum, in addition to expenses, which was sufficient to buy a motor vehicle and put a deposit on a home in England for himself and his partner. Schelvis did not stand to gain as much from her participation in the conspiracy as did Queen. The sentencing judge nonetheless accepted a submission by the prosecutor that the profit or reward which each of the three persons being sentenced expected to receive because of their participation in the conspiracy was worth the assumption of the great risk each undertook. It was unlikely that Hildebrand stood to gain as much as Schelvis by way of reward. Hildebrand did expect to receive a sum of money which was worth the assumption of the risk he undertook, that sum was unlikely to have been as much as Schelvis was promised, and the sum Schelvis was promised was likely to have been less than the sum Queen expected to receive.

53. The sentencing judge took into account that the conspiracy was well advanced, with the liquid MDMA making its way from Spain to the port in Sydney, but because the conspiracy broke down the drug was not received and there was no further involvement in activities such as unloading or unpacking and distribution.

Personal circumstances

54. Queen pleaded guilty at his committal hearing. The Crown case against him was strong. Queen was 35 and 36 at the time of the offence and 38 years when sentenced. He was born in the United Kingdom and was in relationship at the time of the offence with a lady also from England.  He is also the father of a child, from a different relationship, now aged 17.  Since Queen’s arrest in England and his subsequent extradition to Australia he had been a model prisoner.  His imprisonment estranged him from his family in England and his partner.  He maintained contact with his partner by telephone.  Queen was contrite and had good prospects of rehabilitation.  The sentencing judge was persuaded by a psychological report that Queen was vulnerable to manipulation by his father and this occurred, leading to his recruitment in the conspiracy and his acting on instructions from his father throughout.  Once recruited, Queen was a fully committed participant and expressed a great deal of disappointment when the conspiracy broke down.

55. Schelvis was 32 at the time of the offence and 35 when sentenced. She became estranged from her former spouse in 2010. A son of that relationship was born in 2008. The father was a Chilean national and he returned to Chile, taking the child, when the relationship broke down.^[77]  Schelvis and Hildebrand made a number of admissions regarding factual matters that shortened the trial by two to three days.  The admissions ensured the trial could proceed notwithstanding that a witness of importance in the Crown case had been unavailable to attend Court on a day allocated for the trial.  Like Queen, Schelvis had made good use of her time in prison on remand, applying herself in a positive manner and attempting to assist other prisoners.

56. Hildebrand joined with Schelvis in making the admissions which shortened the trial. He was 37 at the time of the offence and 40 when sentenced. He is a single man with tertiary qualifications, amongst other achievements. Until his involvement in this conspiracy he was rightly regarded as a person of impeccable character. Given that he apparently had no particular need for additional money, his involvement in the conspiracy, was almost inexplicable. The sentencing judge accepted that Hildebrand had been too ashamed of his involvement in the conspiracy to assist in the gathering of material in mitigation on penalty.

57. Each of Schelvis, Queen and Hildebrand had no previous convictions and was found to have good prospects of rehabilitation.  Each of them was in different ways vulnerable to recruitment in the conspiracy.  The personal circumstances of Schelvis made her particularly vulnerable to recruitment.  Hildebrand was vulnerable to recruitment by Schelvis as occurred.

Schelvis: sentence application

58. I will discuss Schelvis’s application for leave to appeal against sentence under headings which set out the grounds of that application.

Ground 2.1 - the sentence is manifestly excessive in all the circumstances

59. Schelvis argued that the range proposed on her behalf at the sentence hearing (between 18 and 22 years with a non-parole period of between 50 and 55 per cent of the head sentence)^[78] was an appropriate starting point before taking into account hardship that would follow if Schelvis is removed from Australia after the pre-release period.  Schelvis referred to her role in the conspiracy being functional rather than managerial and that she was not alleged to be a high-level or mid-level organiser.  She argued that facts personal to her warranted a sentence towards the bottom of the range proposed on her behalf, particularly in relation to the pre-release period.  She accepted that her role was essential to the conspiracy but argued that her efforts whilst on remand indicated she had good prospects of rehabilitation.  Schelvis acknowledged that the objective seriousness of the offending warranted a significant head sentence but argued that greater allowance ought to be made for the limits upon her role and her personal circumstances in relation to the non-parole period.

60. The respondent acknowledged the sentencing judge’s finding that none of Queen, Hildebrand or Schelvis occupied a position in the conspiracy as high as a mid-level organiser and referred to the findings that Schelvis was nevertheless “extensively involved in this conspiracy”^[79] and that Schelvis was aware that a large quantity of MDMA was concealed in the shipping container.^[80]  The respondent submitted that Schelvis fell to be sentenced on the footing that she was deeply and actively involved in the conspiracy for a period in excess of six months, she was responsible for importing the shipment, clearing the goods, arranging storage upon arrival, and she would have had a role in the disposition of the drugs if the importation had succeeded, she recruited Hildebrand to assist and gave him instructions, and she communicated with Bos to receive money and instructions.  The respondent argued that the personal considerations to which Schelvis referred were accommodated in the sentence and taken into account in the sentencing judge’s remarks that Schelvis had applied herself positively while on remand, she attempted to assist other prisoners, and she had good prospects of rehabilitation.  The respondent also argued that the sentence imposed on Schelvis was well justified by comparison with past sentences used as a yardstick and the sentence reflected the objectively great seriousness of the offence and the need for a deterrent sentence.

61. The maximum penalty for this offence is life imprisonment and/or a fine of $825,000.^[81]  Section 16A(1) of the Crimes Act 1914 (Cth) required the sentencing judge to “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”.  Section 16A(2) sets out a range of considerations required to be taken into account, in addition to any other matters.  The difficulty of detecting offences of this kind and the great social consequences which may follow from the commission of such offences suggest that deterrence is to be given chief weight and that stern punishment is warranted in almost every case.^[82]  The prior good character of those who participate in offences of this kind has reduced significance, because organisers of the importation of drugs use such personal factors to their advantage in an attempt to avoid suspicion; undue weight cannot be given to the subjective circumstances of offenders such as to result in a sentence that is disproportionate to the objective seriousness of the criminality, and for “foreign offenders, the fact of their separation from their homeland and family is of very little relevance.”^[83]

62. In Ung,^[84]a sentence of 16 and a half years with a non-parole period of 11 years was found to be within the permissible range.  That offender was convicted of being knowingly concerned in the importation into Australia of not less than the commercial quantity of heroin.  The heroin was concealed in seven of 800 cardboard boxes of tinned pineapple which arrived from China.  There was 54.5 kg of pure heroin with a wholesale value of $14.5 million and a street value of $110 million.  The offender was sentenced on the basis that he was not a principal, his involvement was less than that of the co-offender Vo, his role was to facilitate the transfer of the heroin from the wharves to the premises where the heroin was unpacked and uplifted, and he played a significant role in the overall operation.  The sentencing judge also found that the appellant knew the approximate amount of heroin seized.  He had no previous convictions for drug offences, he showed no contrition or remorse, and his criminal record comprised convictions for traffic offences and dishonesty offences at the lower end of the scale.  The sentencing judge started with a head sentence of 25 years which he reduced to 16 and a half years (under s 16G of the Crimes Act 1914) because New South Wales did not have remissions.  That decision does not imply that a heavier sentence might not have been imposed.  Smart AJ, with whose reasons Ireland J agreed, observed that the sentence imposed was heavy but well within the permissible range.  Hulme J observed that, having regard to the quantity of heroin and its value, although that offender may not have been a principal in the importation, there was much to be said for the view that the sentence was below the appropriate range.  Such guidance as Ung supplies does not support a view that Schelvis’s head sentence of 21 years imprisonment is excessive.

63. In Vo,^[85] Ung’s co-offender failed in an appeal against a sentence of 22 years imprisonment with a non-parole period of 14 years.  Again, that sentence took into account the need to allow for the absence of remissions, so the notional starting sentence must have been much more severe.  The sentencing judge found that Vo had played a part in all aspects of the importation from an early time in the venture before the heroin left Hong Kong, she was involved in attempting to secure premises to which the goods originally were to be delivered, she secured the service of another person to clear the importation through customs and dealt with that person, she was involved in financial matters, included transferring money to the supplier of the drugs and others, she was present when the cartons containing the drugs were identified and removed, but she was unaware in which cartons the drugs were contained or how those cartons could be identified.  She was not a principal in the cartel which organised the large scale importation of heroin but she played a crucial role in attempting to bring the importation to a successful conclusion and she did so with the promise of significant financial gain to herself and another person with whom she was acting.  The respondent submitted, and I accept, that Vo’s contribution to the importation was comparable with the contribution made by Schelvis in this case, save that Vo took more steps because the importation succeeded, whereas anticipated steps to be taken by Schelvis did not occur because the conspiracy broke down before the drug was cleared for importation.  Vo suggests that the sentence imposed upon Schelvis is not excessive in any respect.

64. In Wang v R^[86] the New South Wales Court of Criminal Appeal dismissed an appeal against a sentence of 18 years imprisonment with a non-parole period of 11 years and six months, after a discount of 35 per cent for the guilty plea and assistance, of which 15 per cent related to future assistance, for an offence of attempting to possess an unlawfully imported commercial quantity of cocaine.  The starting point for the sentence before that discount was 27 years and eight months imprisonment.^[87]  The pure weight of the cocaine was about 201 kg.  The estimated value ranged between $32.5 and $45 million (wholesale) or $50 million and $112.5 million (street value).  That offender agreed to participate in the scheme when approached by her ex-husband, she knew it was a significant drug operation, she contacted one Ms Ma and promised to pay her $400,000 for her assistance, she communicated with one Mr Hu about the arrival of the drugs and organised delivery to that person’s apartment (speaking with him in code), she obtained mobile phones to be used in the enterprise, stored the drugs in her home, and engaged in other significant activities in relation to the offence; she was described as having agreed to undertake a substantial role in Australia.  That offender had a substantially more significant role than did Schelvis and the sentence imposed upon Schelvis is substantially less severe than the 27 years and eight months imprisonment adopted as the starting point in Wang.  Such guidance as this more serious case supplies indicates that the sentence imposed upon Schelvis is not too severe.

65. In C v The Queen,^[88] the offender was re-sentenced on appeal to imprisonment with a non-parole period of nine years and a balance of term of five years and three months.  The estimated pure weight of the cocaine in that case was no less than 145.5 kg.  The offender was to have received half of that total shipment.  The estimated wholesale value of his share was between $22.8 million and $25.8 million and the street value would have been very much greater.  The quantity was about 36 times the commercial quantity.  The offender came to Australia from the United States to assist in the importation and rented a property for six months to which the cocaine was to be delivered.  He played a significant role in the enterprise but was not a principal.  He also obtained a car for the delivery of the drugs, he helped another person unload the drugs and store the pallets, he was engaged in breaking open pavers in which the drugs originally had been stored and he moved some of the substituted material, he obtained instructions from two people in Mexico, he sent and received email messages in respect of the drugs on two different days, and his involvement in the delivery occurred over a considerable period of three months.  The offender was aged 31, had no prior convictions, there was evidence that he was remorseful, and he had reasonable prospects for rehabilitation.  The sentence imposed on appeal was fixed after applying a discount to the notional starting point of slightly less than 45 per cent for the offender’s early plea of guilty and his assistance to the authorities (including assistance which exposed the offender and his family to danger).  The incorporation of that discount indicates that the starting point exceeded 25 years imprisonment.  The notional head sentence which must have exceeded 25 years imprisonment in that case strongly suggests that the sentence imposed on Schelvis is not excessive in any respect.

66. In Cheung v R,^[89] it was held that concurrent sentences of 22 years and six months imprisonment with a non-parole period of 13 years were not in any way excessive for the offence of being knowingly concerned in the importation of 32.41 kg of pure heroin and a possession charge relating to that heroin (to which that offender pleaded guilty).  The offender was 32 years old and had no criminal record.  He assisted in loading the heroin onto a ship in China, he travelled to Western Australia to assist in unloading and distributing the drug in Australia, and he was described as being “a participant at the top of the range”.^[90]  The sentencing judge adopted as a starting point a head sentence of 28 years for each offence and discounted that head sentence by three years to 25 years to take into account the absence of any prior record, the offender’s otherwise good character, his plea of guilty to the possession charge, and other relevant matters.  The sentence imposed took into account a further credit of 30 months on account of time which that offender had spent in custody before being sentenced.  An equivalent allowance was made for Schelvis in the sentencing judge’s declaration that the time she had spent in pre-sentence custody was deemed to be time already served under the sentence.  Having regard to the greater objective seriousness of the offence in which Schelvis participated, the circumstance that her role was markedly less significant than the role of the offender in Cheung may be regarded as being appropriately reflected in the substantially more severe notional head sentence of 25 years in Cheung.  Such guidance as can be derived from Cheung again indicates that the sentence imposed upon Schelvis is not excessive in any respect.

67. In Sukkar v The Queen (No 2),^[91] an application to review a refusal of leave to appeal against sentence was refused.  That offender was sentenced to 21 years imprisonment with a non-parole period of 13 years for aiding in the importation of a commercial quantity of prohibited goods and attempting to possess a commercial quantity of the same prohibited import, namely 100.6 kg of cocaine with an average purity of 77.8 per cent.  At the first trial the jury were unable to agree upon a verdict.  The offender was convicted upon his plea of guilty entered on the second day of his retrial.  He was sentenced on the footing that he did not have a managerial or directorial role, he was not involved in purchasing the drug or arranging its importation, but he was more than a mere courier.  The offender must have known that a very substantial quantity of drug was being imported and he was closely connected with facilitating its importation and transportation within Australia.  He took a number of steps that were necessary for the success of the enterprise and he was only one of two or possibly three people who were trusted with knowledge of the location of the cocaine after it was imported.  He participated in numerous activities over a period of about a fortnight.  Although his was a junior role compared with that of a principal, it could not be described as a “limited role”.^[92]  He had a significant role in the lower end of the organisational hierarchy.  The offender was 23 at the time he committed the offences, he had a criminal record which was conceded to be irrelevant in the sentencing process, he had difficulties in his early life and abused drugs, he had abstained from drugs since his arrest and had demonstrated that there was some prospects for his rehabilitation.  Such limited guidance as may be obtained from the sentence in Sukkar again suggests that the sentence imposed upon Schelvis could not be regarded as excessive in any respect.

68. Those decisions, the reports of which were referred to the Court by the respondent, appear to me to supply more useful guidance in relation to the sentences imposed upon Schelvis and Hildebrand than any of the many other decisions in the schedule of sentences supplied to the sentencing judge. Schelvis did not submit that any other decision indicated that her sentence was manifestly excessive.

69. I would hold that the sentence imposed upon Schelvis was not excessive in any respect.

Ground 2.2 - the sentence imposed does not account for the effects of the applicant’s almost inevitable removal and exclusion from Australia upon being released on parole

70. Schelvis is a Dutch national who came to live in Australia as an infant in late 1980 or early 1981. When she was sentenced she held a permanent residence visa in Australia. (That evidence was adduced from Schelvis towards the beginning of her evidence-in-chief at her trial and it was not adverted to in her sentence hearing.) Schelvis argued that it is almost inevitable that she will be removed from Australia when she is released on parole and this will necessarily cause her hardship which the sentencing judge should have taken into account in formulating her sentence. She argued that it should be inferred that her almost inevitable removal from Australia will necessarily cause her hardship because she arrived in Australia as an infant and, by the time of her earliest possible release date in March 2027, she will have been in Australia for 46 years. It was submitted that this was a relevant and important mitigating factor. No similar submission was advanced before the sentencing judge.

71. For the proposition that hardship associated with removal from Australia following cancellation of a visa may be taken into account in mitigation of sentence Schelvis relied upon R v UE.^[93]  In that case, the Court adopted the Victorian Court of Appeal’s holding in  Guden v R^[94] that, if the risk of deportation following a sentence to a term of imprisonment greater than one year is capable of assessment by the sentencing court rather than being merely “a speculative possibility”,^[95] then it may be shown by evidence to be relevant to the sentence in two ways: first, it “may well mean that the burden of imprisonment will be greater for [the offender] than for someone who faces no such risk [of deportation]” and, secondly “in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. …”^[96]

72. Guden has been consistently followed in subsequent Victorian decisions: see, for example, Konamala v The Queen,^[97] Da Costa v The Queen,^[98] and Schneider v The Queen.^[99]  I note that in Western Australia it has been held that the prospect of deportation at the conclusion of an offender’s sentence is not of itself a relevant consideration in the exercise of the sentencing discretion: Dauphin v The Queen,^[100] Houghton v Western Australia,^[101] Cohen v Western Australia (No 2),^[102] Ponniah v The Queen,^[103] and Hickling v The State of Western Australia (in which Guden was discussed and not followed).^[104]  I also note that in New South Wales it has been held that the prospect of an offender being deported is generally to be disregarded in formulating the sentence: R v Latumetan and Murwanto,^[105] R v Van Hong Pham,^[106] R v Mirzaee,^[107] and Ali v R.^[108]  I do not propose to analyse those cases or to investigate the position in other jurisdictions.  No submission was made upon that topic.  The respondent joined with Schelvis in submitting that this Court should apply this aspect of the reasoning in Guden, including the requirement that the risk of removal from Australia be assessable rather than merely speculative before it may be taken into account by way of mitigation.^[109]  I proceed upon the footing that the applicable law is as set out in the preceding paragraph.

73. The argument for Schelvis was based upon amendments made to the Migration Act 1958 (Cth) after Guden, which, in the case of a person sentenced to a term of, or exceeding, 12 months imprisonment, substituted obligatory cancellation of a visa by the Minister accompanied by a right of the person to seek revocation of the cancellation, for the pre-existing discretionary power in the Minister to cancel a visa.  Section 501(3A) of the Migration Act now provides:

“The Minister must cancel a visa that has been granted to a person if:

1. the Minister is satisfied that the person does not pass the character test because of the operation of:

1. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

2. paragraph (6)(e) (sexually based offences involving a child); and

2. the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”

74. Pursuant to s 501(7), “a person has a substantial criminal record if…(c) the person has been sentenced to a term of imprisonment of 12 months or more…”.  Section 501CA(3) obliges the Minister, as soon as practicable after making a decision under s 501(3A) to cancel a visa, to give the person who held the visa a written notice that sets out the original decision and particulars of the relevant information, and invite that person to make representations to the Minister about revocation of the original decision.  Section 501CA(4) empowers the Minister to revoke the original decision if the person makes representations in accordance with the invitation and if the Minister is satisfied “…that the person passes the character test (as defined by s 501); or… that there is another reason why the original decision should be revoked.”  Section 501CA(5) provides that if the Minister revokes the original decision, “the original decision is taken not to have been made”.  Section 500(1)(ba) authorises applications to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.  If the visa cancellation is not revoked, the person will be liable to removal from Australia as a non-citizen.  Paragraph 34 of the Explanatory Memorandum for the Bill for the Act which introduced s 501(3A) in December 2014, the Migration Amendment (Character and General Visa Cancellation) Bill 2014, explains that the intent of the amendments was that a person who fails the character test and is released from criminal custody would remain in immigration detention whilst revocation was pursued.^[110]

75. Schelvis argued that because the Minister was obliged by s 501(3A) to cancel her residence visa the sentencing judge should have proceeded upon the basis that she was certain to be removed and permanently excluded from Australia. She argued that because it was merely speculative whether or not the Minister would revoke the decision to cancel the visa upon application by Schelvis under s 501C(4), the possibility of such revocation should be disregarded. The respondent argued that the provision in s 501(3A) requiring the Minister to cancel a visa in the stated circumstances should not be considered in isolation from the provisions in s 501CA for revocation of such a visa cancellation. In the respondent’s submission, for the purpose of sentencing the relevant consideration is the suggested hardship which may arise from removal from Australia rather than from the automatic but reviewable cancellation of the visa. The respondent argued that it was not possible to quantify the risk that such removal would occur.

76. The argument advanced by Schelvis was also advanced in R v UE^[111] but it was not adjudicated upon in that case.  That appeal was rejected on the different ground that there was no error in the sentencing judge’s approach of indicating to counsel that he was not in a position to determine that the offender’s deportation from Australia would be likely to result in hardship in the absence of evidence to that effect.^[112]  However, the argument was rejected by the Victorian Court of Appeal in Da Costa v The Queen.^[113]  The applicant in that case argued that there was a material difference, for the purposes of assessing the risk of deportation and its impact on the offender, between the position under the legislation applicable in Guden (where the offender was aware of a risk of deportation because of the Minister’s power to cancel the visa on character grounds) and the position following the amendments which introduced s 501(3A) and s 501CA (where the offender knows that the visa inevitably will be cancelled and must live with the uncertainty of not knowing whether an application for revocation of that decision will succeed).  The court (Maxwell P, Redlich and Priest JJA) accepted that there was a qualitative difference between the two sets of circumstances but held that, for the purposes of sentencing, no change of approach was required.  The assessment of a risk of deportation and its likely impact on a defender was necessarily imprecise and, at best, a matter of impression.  That assessment could not be so finely calibrated as to take into account the qualitative difference relied upon in that case.^[114]  Whilst the relevant discretion previously related to cancellation of the visa, the relevant discretion under the amended provisions related to revocation of the cancellation decision.^[115]  It was not necessary or appropriate to investigate whether the process under the new regime would be different; it should be assumed that an application for revocation would be supported by the same considerations which in the past would have supported a submission that no cancellation decision should be made.^[116]  After rejecting an argument that changes in Ministerial directions under s 499 of the Migration Act materially affected the applicant’s position to his disadvantage, their Honours observed that it was impossible to predict the effect of future changes in the direction and this was reinforced by the frequency with which the Migration Act was amended and new directions were issued.^[117]

77. That analysis is applicable in this case. Schelvis did not contest the proposition that, if her removal from Australia should be regarded as a disadvantage which was sufficiently significant to be taken into account in mitigation of her sentence, it should be assumed that she would apply for revocation of the cancellation of her visa under s 501(3A).^[118]  The suggested hardship is not the automatic Ministerial cancellation of her visa itself.  Rather, it is the risk that she will be removed from Australia.  That risk will materialise only if her apparently inevitable application for revocation of the cancellation of her visa is rejected.

78. Schelvis relied upon statements in Director of Public Prosecutions v Zhuang.^[119]  In addition to a statement that deportation cannot mitigate a sentence  if it is not feasible to sensibly quantify the level of the risk that the offender may be deported, Redlich, Priest and Beach JJA referred to the insertion in the Migration Act of s 501(3A) requiring the Minister to cancel the relevant visa and remarked that:

“Absent some further amendment to the Migration Act between now and the completion of the respondent’s sentence, the respondent can now expect, with some certainty, to be deported upon her release from custody.  That prospect presently being capable of quantification, it is now a mitigatory factor which, as the judge had already found, would increase the burden of her sentence.  Whether the approach explicated in the authorities of Guden and Peng^[120] will continue to apply in the light of the amendment to the Migration Act which renders deportation certain in the case of certain offences, is not a matter we need to consider.”

79. Their Honours did not refer to the provisions in s 501CA for revocation of a decision to cancel a visa under s 501(3A). If Zhang is thought to be inconsistent with Da Costa v The Queen, rather than merely being a decision on its own facts, it has been superseded by the later decision.

80. The respondent argued that it is to be expected that a responsible Minister or delegate charged with exercising the discretion under s 501CA(4) would take into account representations by Schelvis about the nature and seriousness of the offence committed, the good prospects of her rehabilitation as found by the sentencing judge, any evidence of continuing rehabilitation of Schelvis during incarceration, the length of her residence in Australia, the absence of any connections within the Netherlands (assuming that she has no such connections), any grant of parole and any reasons given for such a grant, and the fact that Parliament has exempted long term residents, such as the applicant, from the regime for deportation in Div 9 of the Migration Act.^[121]  The respondent submitted that, with the exception of the first of the factors in that list, all of the listed factors would weigh heavily in favour of revocation of the visa cancellation.  If so, whether or not Schelvis is removed from Australia at the end of the custodial part of her sentence may depend upon whether the Minister places more weight on the nature and seriousness of the offence she has committed or upon the cumulative effect of those factors favouring revocation.

81. The fact that Schelvis will not be eligible to be released on parole for very many years and the history of frequent amendments to the Migration Act make it unsafe to proceed on the footing that the current provisions will remain in force when any decision may be made about her visa.  If the relevant provisions remain in force, then, as I have indicated, my view is that the focus should be upon the prospect of Schelvis being removed from Australia as a result of the rejection of an application by her for revocation pursuant to s 501CA(4) of the Ministerial decision to cancel her visa required by s 501(3A).  If the decision about revocation is made by a delegate of the Minister, it will be reviewable on its merits under s 501(1)(b).  There is apparently no provision for merits review if the decision is made by the Minister.  It is purely speculative whether the decision will be made by the Minister or by a delegate.  Furthermore, s 501CA(4) does not specify any criteria for the exercise of the discretion by whoever makes the decision.  Further, it is impracticable now to assess many apparently significant factors (including the health and rehabilitation status of Schelvis at the time of the decision) which might be considered by the Minister or delegate.  The prospect that the decision under s 501CA(4), whether it be made by a Minister or a delegate, will be unfavourable to Schelvis is entirely speculative.

82. I would therefore hold that the sentencing judge did not err in not taking into account by way of mitigation of the sentence any hardship which Schelvis might suffer as a result of the prospect that she might be deported upon completion of the custodial component of her sentence.

83. For completeness I should add that, whilst it has been held that a sentence may be mitigated on account of imprisonment being more burdensome for a prisoner who apprehends that she or he might be deported after serving that imprisonment (see, for example, Schneider v The Queen, cited in [72] of these reasons), it was not submitted to the sentencing judge that any finding to that effect should be made and I am not persuaded that any such allowance would have a material impact upon the sentence imposed upon Schelvis.

Ground 2.3 - the learned sentencing judge erred by determining the non-parole period by reference to a “range” of non-parole periods

84. Ground 2.3 relied upon the following passage in the sentencing judge’s remarks:

“The defence, in submissions for each of Mr Queen, Mr Hildebrand and Ms Schelvis, referred to R v Nerbas [2014] QCA 259 as well as a number of other decisions.  Nerbas is a good example of a case that is affected by considerations of parity.  The Crown Prosecutor, however, referred to Nerbas for a different reason and that is for the observations of Justice Gotterson at [50] of his Honour’s judgment, as to the proportion of the non-parole period to head sentences imposed since the decision of the High Court in Hili v The Queen (2010) 242 CLR 520.  I proceed with those observations in mind.”^[122]

85. In Nerbas, Gotterson JA, with whose reasons Holmes JA (as the Chief Justice then was) and Philip McMurdo J (as Philip McMurdo JA then was) agreed, observed:

“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, 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, 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, the proportion was 74 per cent (non-parole period of 11 and a half years); in Nguyen and Phommalysack v R, 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, the proportion was 62 per cent (non-parole period of seven years nine months).

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.”^[123] (footnotes removed).

86. It was submitted for Schelvis that the sentencing judge’s quoted observations did not reflect the proper application of the principles in Bugmy v The Queen,^[124] Power v The Queen^[125] and Deakin v The Queen.^[126]  Reference was made to the consideration of those decisions in Hili v The Queen^[127] and to the submission by the prosecutor that in Nerbas Gotterson JA noted decisions post-Hili in which non-parole periods had ranged between 60 and 75 per cent, that after Hili the method of assessment of a non-parole period may have changed but the range of outcomes had not changed, and that the span of non-parole periods in matters of this kind could be seen from the conclusions drawn by Gotterson JA in paragraph [51] of Nerbas.^[128]  It was submitted that the sentencing judge appeared to have relied, improperly, upon a mathematical analysis of the sentencing trends with respect to non-parole periods which had been fixed both before and after Hili, including as summarised in paragraph [50] of Nerbas.  Schelvis contended that an appropriate non-parole period was between 50 and 55 per cent of the term of imprisonment imposed.

87. In Hili, the High Court endorsed a statement made by this Court in R v Ruha, Ruha & Harris; Ex parte Director of Public Prosecutions (Cth):^[129]

“because the relevant factors and the relative differences in the weight to be afforded to each factor in the different aspects of the overall sentencing process may differ according to infinitely variable circumstances, there can be no ‘mechanistic or formulaic’ approach which requires sentencing judges to ensure that the proportion which the pre-release period bears to the sentence of imprisonment must or must usually fall within a range which is substantially narrower than the whole period of the imprisonment, which is the range the statute expressly contemplates for recognizance release orders.  The proportions commonly encountered in the decided cases should themselves be the results of application of conventional sentencing principles to the particular circumstances of each case: the appellant's argument inverts that proper approach by requiring that the sentence in a particular case be substantially dictated by a pre-determined range unless there are unusual factors.”^[130] (Footnotes removed).

88. Their Honours concluded that, “there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance release order”, that it was wrong to say that there was a “norm” for a period of mandatory imprisonment under the Commonwealth legislation of between 60 and 66 per cent which would be affected by special circumstances applicable to a particular offender, and that the correct approach was for a sentencing judge to determine the length of a sentence to be served before a recognisance release order took effect by application of the principles identified by the High Court in Power, Deakin and Bugmy.^[131]

89. I am not persuaded that the sentencing judge adopted a mathematical analysis or otherwise departed from the approach required by the High Court in Hili.  The respondent pointed out that, before the prosecutor made the submission quoted for Schelvis, the sentencing judge observed that the adoption of a mathematical approach was wrong in principle, and that was accepted by the prosecutor.  After the prosecutor made the quoted submission, the prosecutor submitted that statements of the principles which should be applied by the sentencing judge in fixing the non-parole period were referred to in Hili, including reference to Bugmy and Power.  After the prosecutor submitted that he had drawn the sentencing judge’s attention to Nerbas just to make the point that non-parole periods of 60 per cent or more had been consistently applied after the decision in Hili, the sentencing judge observed that, “[t]hat might be the result that one gets to, but I still need to consider each of these three people individually and the factors personal to them… [a]nd the principles to which you’ve referred… in cases like Bugmy, for example…”.^[132]  The prosecutor subsequently accepted the statement by the sentencing judge that, “it would be wrong, I think, to start from a premise that, “Well, the non-parole period’s [is] between 60 and 75 per cent, so I have to fix it somewhere within that range.”^[133]

90. The sentencing judge’s statement in the sentencing remarks that his Honour proceeded with the observations made by Gotterson JA at [50] of Nerbas in mind indicates only that the sentencing judge bore in mind comparable sentencing decisions in which the proportion of a non-parole period to a head sentence was variously 63 per cent, 80 per cent, 79 per cent, 59 per cent, 74 per cent, 67 per cent, 75 per cent, and 62 per cent.  That is not an indication that the sentencing judge adopted a mathematical analysis as a starting point.  Such a conclusion would be wholly inconsistent with his Honour’s separate and detailed consideration of the personal circumstances and the circumstances of the offence committed by each of the three defendants.  Furthermore, the sentence judge was referred to and considered many comparable sentences.  It was entirely appropriate for the sentencing judge to take into account comparable sentences, including both the head sentence and the pre-release period, for such guidance they supplied in the particular circumstances of Schelvis’s offence and her personal circumstances.  I note also that an argument which was very similar to that made on behalf of Schelvis was rejected in R v Burling & Gill.^[134]

91. It was not submitted for Schelvis that the sentencing judge otherwise did not apply so much of the principles expressed in Bugmy, Power, and Deakin as were properly applicable in this case.

Ground 2.4 - the learned sentencing judge erred by treating the number of multiples of the commercial quantity threshold as a relevant consideration

92. Ground 2.4 is based upon statements by the sentencing judge near the commencement of the sentencing remarks that the quantity of the drug was a little over 104 kilograms in pure weight, that the commercial quantity prescribed by s 314.1 of the Criminal Code (Cth) is 500 grams or more, and that the quantity the subject of the conspiracy was therefore 208 times that statutory threshold.  The sentencing judge went on to observe that the importation was not successful, but, if it had been successful the quantity of MDMA was sufficient to produce 1.37 million ecstasy tablets with a street value estimated to be between $34 million and $54 million, that the liquid MDMA was concealed inside 54 bottles that once held olive oil, and that those bottles were in nine boxes loaded in a container as part of a shipment of wine and olive oil from Spain to Australia.  Counsel for Schelvis referred to submissions by the prosecutor in which reference was made to a schedule of sentences, which formed part of the prosecutor’s submissions, and entries in that schedule under the heading, “Multiples of Commercial Quantity”.  Reference was also made to oral submissions by the prosecutor which referred to the quantity of drug in this case being 208 times a commercial quantity and to the figures in the “Multiples of Commercial Quantity” column.

93. I do not accept either that the sentencing judge treated the precise number of multiples of the commercial quantity threshold as being of itself a relevant consideration or that any such course was urged upon the sentencing judge by the prosecutor. The prosecutor submitted, correctly, that the commercial quantity threshold varied from drug to drug, being 500 grams for MDMA, 1,500 grams for heroin, and 200 grams for cocaine. Because some of the comparable sentences in the schedule related to drugs other than MDMA, it was relevant for the sentencing judge to be informed about the relationship of the quantity of the drug involved in each comparable case and the commercial quantity threshold. The prosecutor did not submit that the precise figure was of any significance in this case. Rather, the prosecutor submitted that there was probably not much distinction to be drawn between differing multiples when the quantities in each case were “vast”.^[135]

94. The sentencing judge mentioned the multiple of 208 only at the commencement of the sentencing remarks and only as one of a number of matters which indicated the vast quantity of MDMA which was the subject of the conspiracy. The sentencing judge subsequently referred to the quantity of the drug as a relevant consideration, and the sentencing judge paid particular attention to what knowledge each of Schelvis, Queen and Hildebrand possessed about the quantity of MDMA.^[136]  There was no error in that approach.  The sentencing judge did not treat the quantity of the drug as “the controlling factor”^[137] in the assessment of the seriousness of the offence, but rather as a relevant consideration.  The sentencing judge quoted and applied the statement in Wong v The Queen^[138] that, “there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved”.  As the terms of that statement made clear, the amount of the drug is not an irrelevant consideration in an assessment of the objective seriousness of the offence.

95. Contrary to another submission made for Schelvis under this ground, the analysis undertaken by the sentencing judge did not amount to improper reliance on a statistical analysis of past sentences.^[139]  I cannot detect a basis for the submission in the sentencing remarks.  The sentencing judge carefully examined the personal circumstances of Schelvis and the circumstances of her offence, adopted the caution by the prosecutor that care was required before placing too heavy a reliance on other decisions, referred to a series of factors which influenced those other decisions, noted the “obvious limitations to any attempt to closely compare any of those decisions to this case” and commented that no such decision was “truly comparable.^[140]  Again, that was a permissible approach.

Hildebrand: sentence application

96. The ground of Hildebrand’s application for leave to appeal against sentence is that the sentence imposed was manifestly excessive in all of the circumstances. At the sentence hearing defence counsel submitted for a sentence between 14 and 15 years imprisonment with a non-parole period between seven and nine years imprisonment. The sentence imposed of 14 years imprisonment with a non-parole period of nine years fell within that range. Nevertheless, Hildebrand submitted that the Court should substitute a sentence of 13 years imprisonment with a non-parole period of seven years. This sentence was said to be required to reflect Hildebrand’s prospects of rehabilitation and the differences between Hildebrand and Queen.

97. In relation to the non-parole period, Hildebrand adopted the submissions made on behalf of Schelvis in support of ground 2.3 of her application, which I have not accepted. Hildebrand referred also to his lack of prior criminal history, that he had been allowed to remain in the community for about two and a half years before the start of the trial and had committed no offences, and that he was an educated and mature man who was vulnerable to the conspiracy because of his relationship with his sister. It was not submitted, and it could not be accepted, that the sentencing judge did not take those matters into account. Hildebrand also argued that his non-parole period should be set between 50 per cent or 55 per cent of the head sentence to reflect his significant prospects of rehabilitation. That submission provides no support for a conclusion that the sentencing judge’s discretion miscarried.

98. Hildebrand also submitted that the sentencing judge’s finding that he expected to receive financial reward of any significance was in error. This submission is not comprehended by a ground of appeal but I will consider it. Hildebrand argued that it was open to find that he was solely motivated by his benevolence and protectiveness towards Schelvis, rather than by any expectation of financial reward; the influence upon Hildebrand of Schelvis’s distress was a very potent motivation for him. He submitted that the sentencing judge could not have been satisfied to the high degree required that he had any expectation of financial reward and that the appropriate finding was instead that he had no expectation of a financial reward, or at least that any financial reward was negligible. I do not accept these submissions. To the extent that evidence given by Hildebrand and Schelvis arguably provided a motivation for Hildebrand to participate in the conspiracy with no expectation of financial reward, Hildebrand has not pointed to any error by the sentencing judge in not accepting that proposition and acting instead upon the objective evidence of Hildebrand’s conduct. The sentencing judge adverted to the high degree of satisfaction required by s 132C of the Evidence Act 1977 (Qld) and inferred from the nature and extent of Hildebrand’s role in the conspiracy that he must have expected to receive a reward which was worth his assumption of the great risk he took.  For reasons which I have mentioned, the sentencing judge concluded that Hildebrand did expect to receive a sum of money in payment for his participation which was worth the assumption of that risk, but that sum was unlikely to have been as much as Schelvis was promised and the sum which she was promised was likely to have been less than the sum which Queen expected to receive.  There was no error in those findings.

99. Hildebrand also argued that his sentence was out of parity with the sentence imposed upon Queen, such as to give rise to a justifiable sense of grievance and to enliven this Court’s power to adjust Hildebrand’s sentence. Again, I will consider this argument although it is not within the ground of the application for leave to appeal against sentence. The argument invoked what is known as the “parity principle”, a principle which is designed to ensure equality before law.  The parity principle generally requires that “like cases be treated alike” and that there be “differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law”.^[141]  Thus an appellate court may adjust a sentence which is otherwise unaffected by error if there is such a disparity between that sentence and the sentence imposed upon a co-offender as to give rise to a legitimate sense of grievance or the creation of an appearance that justice has not been done; interference in a sentence is not justified where the disparity between it and the sentence of a co-offender is explicable by differences in the circumstances of the offences or the personal circumstances of the offenders.^[142]

100. Hildebrand argued that the differences between the sentence imposed upon him and the more severe sentence imposed upon Queen did not adequately reflect the circumstances that, as the sentencing judge found, Queen’s involvement in the conspiracy was greater and comprehended further involvement after the arrival of the container, Queen knew that the amount of the drug was large whereas Hildebrand knew only that it was substantial, Queen stood to profit substantially and more than Schelvis and Hildebrand (he had observed that he had “lost out on a fortune” and anticipated sufficient profit to buy a car and put a deposit on a house in England) whereas Hildebrand expected some far lesser reward, and their prospects of rehabilitation were found to be the same.  Hildebrand acknowledged that Queen pleaded guilty but argued that the significance of this was reduced by the circumstances that there was a strong Crown case against him and Hildebrand made crucial admissions at the trial.

101. It was not submitted, and it could not be accepted, that the sentencing judge did not take into account all of the matters to which Hildebrand adverted. In setting out to ensure that the sentences were in parity with each other, it was for the sentencing judge in the first instance to fix upon the weight to be given to the competing considerations upon which Hildebrand relies in this argument.  The inevitable generality in the expression of the defendants’ degrees of criminality and the difficulties in comparing their personal circumstances made any assessment difficult and necessarily imprecise.  The advantage of the sentencing judge in this area must be taken into account.  In my view, there is no ground for finding such an error in the relationship between Hildebrand’s sentence and the sentence imposed upon Queen as to justify the Court in holding that Hildebrand has a justifiable sense of grievance.  Queen entered a timely plea and the sentencing judge could not be said to have erred in attributing far more weight to that factor than to the admissions made by Hildebrand at his trial.  I would reject the argument that considerations of parity justify interference with the sentence imposed upon Hildebrand.

102. Hildebrand did not argue that his sentence was manifestly excessive if, as I have concluded, the sentencing judge did not err in any of the respects for which he advocated. The sentencing decisions already discussed suggests that the sentence imposed upon him for this objectively serious offence was comfortably within the sentencing discretion. In my opinion the sentence is not manifestly excessive.

Proposed orders

103. I favour the following orders:

CA No 224 of 2015 (Schelvis)

The application for leave to appeal against sentence is refused.

CA No 247 of 2015 (Hildebrand)

1. The appeal is dismissed.

2. The application for leave to appeal against sentence is refused.

104. MORRISON JA:  I have read the reasons of Fraser JA and agree with those reasons and the orders his Honour proposes.

105. PETER LYONS J:  I have had the advantage of reading in draft the reasons for judgment of Fraser JA.  I agree with them and the orders proposed by his Honour.