Under s235(2)(c)(i) of the Customs Act 1901 (Cth), the higher penalty range for commercial quantities of narcotic goods is attracted by proof of the objective facts (nature and quantity of the substance) and does not require proof that the defendant knew the quantity was a commercial quantity. The reasoning in He Kaw Teh v The Queen requiring proof of mens rea for the elements of the offence under s233B does not extend to the criteria for determining the penalty range under s235. Where co-offenders are sentenced in different jurisdictions, an appellate court re-sentencing is not bound to reduce sentences to achieve parity with sentences imposed by a court in another jurisdiction, particularly where those sentences are themselves the subject of prosecution appeals.
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