Adams v The Queen [2008] HCA 15 23 April 2008 M121/2007
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation
L C Carter with C B Boyce for the appellant (instructed by Leanne Warren & Associates)
W J Abraham QC with R R Davis for the respondent (instructed by Director of Public Prosecutions (Cth))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Adams v The Queen
Criminal law – Sentencing – Federal offences – Appellant convicted of possessing a "commercial quantity" of the narcotic MDMA (ecstasy) – Customs Act1901 (Cth) fixed the commercial quantities of certain narcotics and imposed maximum penalties that did not distinguish between the narcotics – Whether appellant should have been sentenced on the basis that MDMA was less harmful than heroin.
Practice and procedure – Appellant did not demonstrate factual assertion that MDMA was less harmful than heroin – Whether controversy "moot" or "academic".
Words and phrases – "commercial quantity", "moot", "trafficable quantity".
GLEESON CJ, HAYNE, CRENNAN AND KIEFEL JJ. Following a trial by jury in the County Court of Victoria, the appellant was convicted of possessing, on 9 January 2004, prohibited imports contrary to s 233B of the Customs Act 1901 (Cth) ("the Customs Act"). The prohibited imports in question were 19.927 kilograms of a mixture that contained 8.916 kilograms of MDMA, commonly known as ecstasy. The appellant, a United States citizen temporarily in Australia, had been charged following the interception by the authorities of containers shipped to Australia from overseas.
The Customs Act adopted (and the Criminal Code (Cth) as amended since the relevant time adopts) a quantity-based penalty regime, fixing "trafficable" and "commercial" quantities of certain drugs, distinguishing between those drugs in setting such trafficable and commercial quantities, but otherwise making no distinction between them in terms of maximum penalties. Under s 235 of the Customs Act, offences involving a trafficable quantity of narcotic goods carry a maximum penalty of imprisonment for 25 years and/or a fine not exceeding $500,000, and offences involving a commercial quantity of such goods carry a maximum penalty of imprisonment for life and/or a fine not exceeding $750,000[1]. For example, the trafficable quantity of cocaine was 2 grams; that of heroin was 2 grams; that of MDMA was 0.5 grams. The commercial quantity of cocaine was 2 kilograms; that of heroin was 1.5 kilograms; that of MDMA was 0.5 kilograms.
[1]The amounts are as set out in the respondent's written submissions. The legislation is expressed in terms of penalty units, the value of which changes from time to time.
This legislative approach, which recognises the financial rewards available from dealing in illicit drugs, thus differentiates between various narcotic substances in designating the trafficable and commercial quantities, but applies the same penalty…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Adams v The Queen [2008] HCA 15
Case
[2008] HCA 15
Decision Date
CaseChat Overview and Summary
The appellant, Adams, was convicted of possessing a commercial quantity of MDMA (ecstasy) contrary to federal law. The dispute concerned the appropriate sentencing for this offence, specifically whether the appellant should have been sentenced on the basis that MDMA is less harmful than heroin, given that the relevant legislation, the *Customs Act 1901* (Cth), fixed commercial quantities and maximum penalties without distinguishing between different narcotics. The High Court of Australia was required to determine this appeal.
The central legal issue before the High Court was whether the sentencing of the appellant should have taken into account a perceived difference in harm between MDMA and heroin, notwithstanding the statutory framework. This involved considering whether the appellant had discharged the onus of demonstrating a factual assertion that MDMA was less harmful than heroin, and if not, whether the question of differential harm was a moot or academic point in the context of the appeal.
The Court reasoned that the appellant had failed to demonstrate the factual assertion that MDMA was less harmful than heroin. Consequently, the question of whether the sentencing should have proceeded on that basis was rendered moot or academic. The statutory scheme prescribed penalties based on the quantity of the prohibited substance, and without evidence establishing a differential harm that the legislation contemplated or permitted to be considered in sentencing, the appellant could not succeed on this ground.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ, HAYNE, CRENNAN AND KIEFEL JJ
HEYDON J
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Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, HAYNE, CRENNAN AND KIEFEL JJ,
HEYDON J