Pereira v The Queen; Gibson v The Queen

[1992] HCATrans 215

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SlS of 1992

B e t w e e n -

MANUEL FRANCESCO PEREIRA

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S117 of 1991

B e t w e e n -

WARWICK WILLIAM GIBSON

Applicant

and

THE QUEEN

Respondent

Applications for special leave

Pereira 1 4/8/92

to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 AUGUST 1992, AT 10.05 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:  Your Honours, I appear with my learned

friend, MR S.J. ODGERS, for the applicant Pereira.

(instructed by Watsons)

MR G.R. JAMES, QC:  May it please the Court, in the matter

of Gibson, I appear with my learned friend, MR T.A.

GAME. (instructed by J.J. Cullen & associates)

MR M.S. WEINBERG, QC:  If the Court pleases, in both matters

I appear, together with my learned friend, MR T.L.

BUDDIN, on behalf of the respondent. (instructed

by the Commonwealth Director of Public

Prosecutions)

MR HIDDEN:  Your Honours, if it suits the convenience of the

Court, as the applications raise substantially

similar questions, might the Court be prepared to

hear the argument in Gibson's matter first?

MASON CJ: Yes, that will be acceptable, Mr Hidden.

Mr James.

MR JAMES:	May it please the Court, might I, at the outset, indicate that this is not a sentencing appeal to
this Court but it raises at bottom, in our
submission, a number of fundamental questions:
firstly, the role of consistency in sentencing
throughout Australia in the light of the federal
jurisdiction; the respect to be accorded by the
courts exercising federal criminal jurisdiction to the decisions of other courts within that
jurisdiction; to the proper interpretation of
section 235 of the Customs Act and the schedules to the Customs Act in so far as they prescribe sentences in respect of various offences relating to narcotic goods, which sentences include sentences as severe as life imprisonment; the rlerivation of sentencing policies or guidelines and
their expression by Courts of Criminal Appeal so as
to lay down what amount to rules for sentencing and
for the conduct of Crown appeals; and even more
importantly, perhaps, the proper interpretation of
Part 1B of the Commonwealth Crimes Act as it
applies throughout Australia in an apparent attempt
to achieve some consistency - and I am using the
word "consistency" quite carefully in order to discriminate between uniformity or mathematical ratios or parity, but to obtain a consistency of sentencing throughout the nation.
MASON CJ:	You make it sound like an earth-shattering case,

Mr James, but what are the precise questions?

MR JAMES:	The precise question arises in this way, Your Honour. The New South Wales Court of Criminal
Appeal, in the decision in Chase, in their judgment

Pereira 2 4/8/92

included what amounts to a remark or observation by

Mr Justice Lee on the comparable harmfulness of

cocaine and heroin. No source is given for the
observation, yet it becomes elevated, through a

line of cases including Ferrer-Essis, to the

proposition that each is to be treated as though
they are equally harmful at the top range of the
drugs to which the Customs Act (Narcotic Offences)

provisions apply.

No reasoning is attached to indicate that this is a matter of observed fact, judicial notice. No

reasoning is attached to indicate any
interpretation of the Customs Act. That Act would
accord with what the Federal Court had said in Tait

and Bartley, dealing with the early cases of

Jackson and Piercey - Jackson in South Australia,

Piercey in Victoria.

What had happened in the present case had been

that the trial judge had attempted to deal with two
questions, substantially, the first being an

attempt to look at the harmfulness of the drug on a

comparable basis in relation to, firstly, South

Australian decisions where there had been an

inquiry as to fact to look at that general and

broad social question as to whether the two drugs

were equally harmful as affecting culpability; and

secondly, an attempt to achieve consistency in

sentencing notwithstanding that by dint of the

prosecutorial discretion in charging there had been

amongst persons involved in the one major

transaction discrimination by way of different

charges in different venues and of offences the

subject of different jurisdictions.

There does exist a system in Australia as far

as drugs are concerned where both section 233B and

235 of the Customs Act relating to the importation

and possession of narcotic goods runs parallel to

various pieces of State legislation which proscribe

the possession and dealing in of what in fact are

the same drugs.

In the upshot, His Honour came to try to deal

with the accused in the present case in the light
that the various accused had been dealt with for

different roles in the one transaction and that

there did appear, because of the splitting, as it

were, of that transaction, that different systems,

including the South Australian and New South Wales

systems, different law - South Australian and New

South Wales sentencing law, federal law, and New

South Wales State law - were applied, and in that

context he attempted to achieve a position not of

equivalence, not as a mathematical equation as his

decision was categorized by in the Court of

Pereira 3 4/8/92

Criminal Appeal on the Crown appeal, but to achieve

a result which was consistent in the light of the

factual material before him.

He sought that consistency in the light of the decision of this Court in Lowe and in the light of

Part lB of the Crimes Act.	Now, Part lB, as
Your Honours - - -

DEANE J:	What was the factual information before the trial
judge as to the relative seriousness of trafficking
in cocaine and heroin?
MR JAMES:	Your Honour, there was limited information except

the South Australian decisions which themselves had

relied on an inquiry into fact, in particular

Webb-Meyer which had been followed by Shafik.	Now,
we do not quarrel with the proposition that the
trial judges, seeing as they do, the daily

procession before them, can take judicial notice to
a very great extent of the relative harm caused by
various kinds of criminal activity or various
substances. In fact, the New South Wales Court

of -

DEANE J:  How would we - if you were granted leave, would

you proposing to -

MR JAMES:  No, Your Honour. We would not be seeking that

this Court decide a question of relative harm in that sense. What we are concerned about in this

case is that New South Wales has adopted a

particular process which we say is in error.

MASON CJ:  But how would you persuade us that New South

Wales was wrong?

MR JAMES:  Your Honour, firstly on the basis that there is

an inconsistency between New South Wales in the one

court that has sought to examine the factual

question; secondly, that by the process that New

South Wales has adopted they have fallen into error

and the result, should we succeed in the appeal,

would be to remit the matter to the New South Wales

Court of Criminal Appeal to do it properly.

McHUGH J: That assumes they have done it wrongly?

MR JAMES: That is the process, not the result necessarily.

One cannot tell whether the result is right or

wrong except that, on South Australian cases, it is

wrong.

DEANE J:	But you said you do not dispute that they can take
judicial notice.

Pereira 4 4/8/92

MR JAMES:  No, Your Honour, I said trial judges, judges at

first instance, seeing the matter before them in

the everyday procession of cases.

DEANE J: But that is true of Court of Criminal Appeal

judges.

MR JAMES:  To a much less limited extent in New South Wales,

Your Honour. The New South Wales Court of Criminal

Appeal judges - - -

DEANE J:  I would have thought Justices Carruthers and

Loveday would have both had extensive criminal

experience.

MR JAMES:  Mr Justice Loveday, when he sat in the District

Court of New South Wales, yes, Your Honour;

Mr Justice Carruthers would be dealing on occasion with the customs offences of importing, but the judges of the supreme court do not sit in a

jurisdiction which would permit them, in the normal

run of cases, except when they are sitting on
appeal, to come across those very matters to which
the culpability of the drug is said to relate, that

is the causing of the harm to the community.

DEANE J: But even sitting on appeal, they go through a vast

number of cases, one would think.

MR JAMES:  Yes, Your Honour, but perhaps it is rather like

the other problem, the prevalence of this offence.

They see one side only of the exercise and that of

necessity would lead to the judicial mind being

persuaded, by that side only coming forward.

DEANE J: But what I was querying, and I do not want to

delay you unduly, is that it seems to me to be a

very strange proposition that a trial judge can
take judicial notice of a fact, but that the Court

of Criminal Appeal judges cannot take their own

judicial notice of that fact or that the trial

judge, in their view, was wrong.

MR JAMES:  Your Honour, I accept, when one is discussing the

doctrine of judicial notice, that it is open to the

trial judges and open to judges of the Court of

Appeal, if that is the right doctrine. I am not

too sure, though, that what occurs in this present
line of cases is a matter of judicial notice of a

factual proposition because then we would be

weighing, as the respondent's summary of argument

and our argument in the application book suggest,

judicial notice versus fact-finding. Indeed, what

more seems to be applicable here, although that

bears a role in it, is the adoption of a mode of

interpretation of section 235 and the schedules of

the Customs Act which permits a court to lay down a

Pereira 4/8/92

factual proposition or a rule of policy or a

presumption which will thereby found a tariff of

cases, at least in that State, inconsistent with a
line of cases and a tariff elsewhere, concerning

the interpretation of that very federal statute.

McHUGH J: There might be a greater social problem in one

State than in another.

MR JAMES:  There may be, and if there had been one could

have understood the observation in Chase and in

Ferrer-Essis; one could have understood that it was an application of that sort of trial judge's

experience that Your Honour Mr Justice Deane has

referred to, such as Sydney is a port of entry,

Hobart is not, and therefore there might be a valid

basis for discriminating on the basis of local

conditions. But no such thing was suggested in on the basis that cocaine is as bad as heroin; both are up the top.

I am not quarrelling with the proposition it

may be; I am saying that the judicial process that

has been embarked on to produce that conclusion,

and that line of cases which, based on that

conclusion, have raised again the tariff in New

South Wales, after Poyner's case, has been a process which, firstly, is, in our submission,

unless it can be justified by reasoning of some

sort, seems to be an inappropriate process of, in

effect, interpreting section 235 and the Customs

schedule.

Now, it is not as if the problem was entirely

novel. Indeed, Your Honour Mr Justice Deane was

confronted with the problem in one aspect in Tait

and Bartley where, in the history of the Customs

Act, what had occurred had been that heroin and

cannabis were originally subject to the same

penalty provisions. Thereafter the legislature

raised the penalty for heroin and the argument in

the Crown appeal to the Federal Court in Tait and

Bartley was that they had thereby, as it were,

dragged up the maximum for cannabis in, that the

maximum penalty in the section, in the penalty
provisions left to deal with cannabis, had had the
worst class of case taken out and inserted with a
higher maximum.

In that case, the Federal Court examined the varying interpretations that had been given to 235

and how that might permit a discrimination in

respect of the varying substances. Indeed,

Your Honours would have the schedule to the Customs

Act and, without taking Your Honours specifically

to it, it deals with a diverse range of substances

Pereira 6 4/8/92

ranging from codeine through to diamorphine and it

deals by way of discrimination in terms of
quantities, traffickable or commercial, when fixing

the parameters under section 235.

Beyond that the legislature has left it to the

courts, in accordance with well-known principles,

to seek to define the factual elements involved in

a crime in relation to their culpability so as to

be able to produce an appropriate sentence. In

that regard, in our submission, it is to fetter the

sentencing discretion by a fixed rule of policy to

lay down the proposition that any one substance

must be, for the purposes of decisions of trial

judges in any particular jurisdiction the same as,

or equally culpable, with another.

McHUGH J:  But you can make the same criticism about the

South Australian position; they have laid down a

rule that one is not as bad as another.

MR JAMES:  Your Honour, there is a difference between laying

down a rule saying we have made a factual inquiry

and one is not necessarily as bad as the other, and

laying down a rule without any factual inquiry in
the teeth of already existing line of authority in

the same jurisdiction.

McHUGH J:  I must say, I bristle at the term "authority". I

would not regard these cases as authorities - cases

on the - they are just factual matter.

MR JAMES:	With respect, I accept what Your Honour says about authority but really, rather than them
being - the ideal position would be that it would not be factual unless there had to be a challenge.
Indeed, Jackson - noted in Tait and Bartley - deals
with the proposition that you start with the exercise that they are all on the one schedule and
subject to the same range of penalties, and the
onus falls upon those who would show that one drug
is more culpable than the other to produce material
to justify it. Those who would seek to show that one is less harmful should produce material to
justify that.

Now, that was noted but not expressly

followed, in explicit terms at least, in Tait and

Bartley. There is a difference. It may be that

both lines seeking to lay down guidelines have in

fact produced, in the administration of this very

important federal statute, an inconsistency, a

clash, by hardening those guidelines into fixed

rules and in doing so - - -

McHUGH J: But the legislature must be quite happy to have

these variations from State to State, otherwise

Pereira 7 4/8/92

they would make all these appeals go to the Full

Federal Court. In fact, I do not understand,

myself, why the Full Federal Court does not hear

appeals on all criminal matters concerning federal

offences.

MR JAMES:	To which one could only say, personally one might thoroughly agree, but this Court did look at the
valid basis for constitutional discrimination in
sentencing regimes in Leeth and since then the
Commonwealth Government - since the provisions
noted in Leeth - has noted, in Part 1B, or has
created in Part 1B, a system plainly designed to
ensure a greater consistency of the administration of the principles appropriate to sentencing set out in section 16 of the Crimes Act and, indeed, even
to the point of serving the sentence set out in
sections 16G and 19G, I think, in that provision.
Part 1B is designed to ensure a degree of
consistency of approach by courts in sentencing for
Commonwealth offences. It may have been a much
better idea to have created one Federal Criminal
Court for Australia and, indeed, many practitioners
in all States of Australia have been heard to
applaud that, but we have not got it.

MASON CJ: Yes, well, this is all beside the point,

Mr James.

DEANE J:  Why did the South Australian court say that

cocaine is not as bad as heroin in terms of illegal

importation?

MR JAMES:	They embarked on, Your Honour, an inquiry as to fact, and heard some evidence as to that at first
instance.
DEANE J: But what was it about?	Was it that different

people import cocaine to	those that import heroin
or that cocaine does not	do as much damage or is
not addictive or - - -

MR JAMES: Well, two matters. It seems firstly to be that

cocaine was categorized as a drug of dependence

rather than a drug of addiction; secondly, that at

least in the Australian experience, those persons

using cocaine do not appear to be persons that

embark on such extensive crimes as those with

heroin.

MASON CJ: South Australian experience or the Australian

experience?

MR JAMES:  The evidence was in very general and, indeed,

quite vague terms, Your Honour.

Pereira 4/8/92

McHUGH J: Well, we know as a matter of social history that

in the 1920s the razor gangs and criminals in

Sydney always hit themselves with cocaine. That

was the drug.

MR JAMES:  I am not sure, Your Honour, that one does know

that nowadays, except as a matter of history.	We
also know - - -

McHUGH J:	I am talking about a matter of history, of what one reads about the 1920s.
MR JAMES:	We also know judicially and historically that

opium did contribute to substantial crime, but of a
very limited class, historically, in the 1930s.

Modern-day heroin is a very different kettle of

fish. What may be the appropriate course, in fact,

is something we are not asking this Court to

undertake an inquiry into, but we are saying this
is not a question that is simply limited to cocaine

versus heroin; there are very many drugs referred

to in that list and arguments as to the less

harmful nature of cannabis or the less harmful
nature of various drugs named MDA or MOMA, are

proceeding under this legislation throughout

Australia.

DEANE J:  You are taking it out of this ball park. I mean,

when you have somebody illegally importing a

kilogram of pure cocaine, my instinctive reaction

to the suggestion that you say to him, "Well, it

would have been a lot worse if you'd been entrusted
with the heroin", is really that it is not very

convincing.

MR JAMES:  Could I put· this to Your Honour's instinctive

reaction: if it were five kilograms, if it were

heroin, if it were accompanied by armed guards, if

lt was a Columbian drug cartel leader, all manner

of considerations might apply. I am not simply

seeking in this case to distinguish, on the basis

of cocaine versus heroin. Cocaine and heroin throw

up the problem so well because of Your Honour's

instinctive reaction. That instinctive reaction

may be right, it may not be, but without some

process whereby the courts can effectively

determine such matters which have apparently been

entrusted to them by the legislature producing the

schedule in that form, there does not exist

consistency throughout the Commonwealth in

sentencing for such matters.

Indeed, perhaps I should show Your Honours the

remark which was the progenitor of this in Chase

and Your Honours can see how it came forward with

what appears to be a straightforward and simple

observation by Mr Justice Lee on which there has

Pereira 4/8/92

been built the line of cases. Might I hand up to

Your Honours copies of the unreported cases which were on our list of authorities.

MASON CJ:  Mr James, I think I should ask you to restrain

your enthusiasm for authorities. This is a special

leave application. Now, by all means refer us to the remark that was made in Chase that you say is

the progenitor of this line of thinking, but there

is no occasion to inundate us with authorities.

MR JAMES:  I am certainly not seeking to do that,

Your Honour.

McHUGH J: There used to be a rule in the civil cases that

if you had not got special leave in 10 minutes your

argument was pretty poor.

MASON CJ:  We are trying to unify the practice in civil and

criminal cases, Mr James.

MR JAMES:  I am an advocate for consistency and perhaps the

civil cases should be looked at, Your Honour.

Your Honours, we find the remark in Chase, and

indeed perhaps the shorter course would simply be

for me to read it because it is short, and it

appears in that case, at page 20, after a fairly

lengthy discussion of the points individual to that
case, and a discussion about whether the sentence

was excessive. It appears at the conclusion of

this paragraph:

The matter has to be faced upon the basis

that firstly - and it was plainly in his
Honour's mind - the appellant was a person

whose participation was something considerably beyond that of a courier if he was not in fact

the principal in the actual transaction

involving the importation itself. He it was

who recruited the accomplices Fanning and

Ainsworth and that places him in a position

which is wholly different from those who

merely participate as couriers. The amount of

the drug being imported was considerable,

almost a kilo. Cocaine, it can be said is,

from the point of view of the danger to the

youth of the country, of the same magnitude as

heroin.

In all the circumstances it seems to me

that the case is not one -

et cetera. Now, that was the initial observation

from which this line and a tariff has been

produced, in the later cases of Ferrer-Essis and so

forth.

Pereira 10 4/8/92

Your Honours, we have on our list of

authorities, and we would urge, that one of the

appropriate ways in which this matter might have

been dealt with was the way in which this Court

looked at the special leave application in Kloss

and, Your Honours, in Kloss, which is a very short

judgment given on a special leave application, the

Court looked at the interpretation of 235 of the

Customs Act in the light of variable or potentially

variable culpable drugs. Kloss is to be found in

(1983) 47 ALR 692 and, in the judgment of

Chief Justice Gibbs, with whom Your Honour

Mr Justice Mason, Mr Justice Murphy,

Mr Justice Wilson and Mr Justice Dawson agreed,

appears at paragraph 2 this statement:

I would, for myself, endorse the statement

made in the Full Court which approved some

remarks of White Jin R v Vivian where that

learned judge said: "In the absence of

evidence to the contrary hashish (cannabis

resin) must stand at the lowest point in the

spectrum of offences covered by the high

maximum .... Having said that, it cannot be

denied that hashish does fall within that

spectrum of high maximum penalties."

It is our submission that Abbrederis, Martin

and Jackson, all on our list of authorities,

support the proposition that, within the federal

jurisdiction, respect at least, if not binding

authority, should be accorded to the decisions of

courts sitting on the same matters and interpreting

the same statutes. In our submission, it is New

South Wales that is out of step with South

Australia and Victoria and that the approach in

Tait and Bartley and in Jackson and in Kloss which

requires, in our submission, some clean

particularization for the benefit of trial judges

and Courts of Criminal Appeal, should be examined

to ascertain the true interpretation of the statute

to achieve the consistency that Part lB seeks to

accord.

Other than the matters that are raised in our

written outline of argument, I have nothing

further.

MASON CJ: Thank you, Mr James. Mr Hidden.

MR HIDDEN:  Thank you, Your Honour. As Your Honours will

see in the application in Pereira, substantially
the same point is raised. We adopt the submissions
of Mr James, Your Honours, without addition, except

perhaps for this: on this question of judicial

notice, as my learned friend, Mr James, said, of

course in many respects courts of first instance

Pereira 11 4/8/92

determine the seriousness of an offence by long

experience and it can certainly be said now that
long experience over many years of the criminal courts in New South Wales and elsewhere is that heroin is a drug which causes great social harm,

and one hardly needs evidence to that effect any

more. But, Your Honours, the bald assertion

emanating in Chase that cocaine, it can be said,

is, from the point of view of the danger to the

youth of the country, of the same magnitude as

heroin, just cannot be justified, with respect, and

in our submission, leave the experience, if the

Court of Criminal Appeal - - -

McHUGH J: Well, you make that assertion but I do not know

whether it can or not.

MR HIDDEN:  Your Honours, I can only say if that has been

the experience of the Court of Criminal Appeal,

Your Honours, it has not been so for the rest of

us. The anecdotal evidence, if anything,

Your Honours, is that as far as Australia is concerned that is not the case and cocaine is

nothing like the social evil that heroin is. But
the whole point is, Your Honours, it is largely
speculation and a proposition as significant as

that, placing as it does cocaine in a hierarchy of

drugs, just cannot be made as speculatively and as

anecdotally as it appears to have been. The matter

must be based either on long experience - - -

McHUGH J: But do other courts specifically refer to this

remark, in terms?

MR HIDDEN: Other courts of the Commonwealth?

McHUGH J:  No, other courts in New South Wales. Do they

refer to what Mr Justice Lee said?

,

MR HIDDEN: Yes, Your Honour. It was repeated by the Court

of Criminal Appeal in Ferrer-Essis, and those

decisions now guide the attitude of sentencing

courts in New South Wales, unless this Court has

something to say about it. Basically,

Your Honours, it is very much a question about the

fact-finding process of sentencing courts. In our

submission, the one thing one can say, as a matter of judicial notice, is that courts in this country do not have sufficient experience of the effects of
cocaine to make a bald assertion like that and, in

the absence of evidence, it is just unjustified.

Your Honours, in Ferrer-Essis, at page 12 of the judgment of Mr Justice Hunt, the proposition of

Mr Justice Lee is quoted. They are the only

matters we wish to add, Your Honours.

Pereira	12	4/8/92
MASON CJ:	Thank you, Mr Hidden.	What do you say about

this, Mr Weinberg?

MR WEINBERG:	Your Honour, we say something different in relation to each of the two applications,
marginally different.  We say in relation to
Mr James's submission that this is not a sentencing
appeal, that if it looks like a duck, walks like a
duck and quacks like a duck, it is a duck. This is
a sentencing appeal.

We say secondly that the exercise upon which

our friends have embarked, in effect, is a

misleading exercise - not intentionally misleading

but misleading in this sense that when one is

dealing with a large quantity of cocaine, in one
case a kilogram and in the other case six kilograms

of cocaine, the nature of the substance is a matter

that assumes minimal significance. That is not

just an instinct that Your Honour Mr Justice Deane

came forward with, it is in fact a principle that

has been laid down, indeed in Leeth's case - not by

this Court, but Leeth's case - in the Queensland

Court of Criminal Appeal where the court expressly

said that when you get into the realms of large

commercial traffickable quantities, matters of that

kind, the nature of the substance assumes, as I

have said, minimal significance.

Perhaps I could just read the one line from

Leeth where that point is made good. Leeth is

reported at (1989) 42 A CrimR 128. At page 130 of

the judgment, the Court of Criminal Appeal,

Mr Justice Connolly, with whom the other members of

the court agreed, said this:

Thirdly, where the offences involve a

sophisticated importation of very large

quantities, the argument that hashish or

cannabis resin is less harmful than heroin is

of minimal significance.

Now, that case dealt with about 1.3 tonnes of	hashish. It was an importation case. Gibson
involves possession; Pereira involves importation. We say the principle is applicable across the
board. If you were dealing with large quantities
of drugs, the nature of the drug reduces in
significance.
If that be the case, in our submission, then the observations that have been made in Gibson's
case by the Court of Criminal Appeal really assume
very little significance in the actual decision of
the court to increase the sentence. In fact, they
are really passing observations, if one analyses them properly, because they are put into the

Pereira 13 4/8/92

judgment to deal with the proposition that the

sentence imposed upon Navarro in South Australia

was one that was, as it were, too light - the Crown

contending that that sentence was too light - and

therefore parity principles ought to occupy less

weight.

So it was a passing reference, in our

submission, and not really of significance to the

judgment of the Court of Criminal Appeal in New

South Wales, which was that the sentence was

manifestly inadequate, and that makes Gibson not an

appropriate vehicle for considering the correctness
of those observations.

If anything, Pereira is a less appropriate vehicle because the point was never raised at all

in Pereira in terms. It was never raised before

the trial judge and never raised before the Court

of Criminal Appeal. There is not a single word in

the judgment of either the trial judge or the Court

of Criminal Appeal about cocaine being as dangerous

as heroin. What the applicant Pereira seeks to do

is to draw the inference that that must have been a

factor in the court's mind when it resentenced

Pereira, because it had handed down judgment in

Gibson earlier that morning and referred to Gibson

as being relevant to the tariff for Pereira. That

is two steps removed, in our submission, from being

an appropriate vehicle for the grant of special

leave.

We submit, Your Honours, that the starting

point for determining the seriousness of the drugs
in question must be Parliament itself, and

Parliament, in the Sixth Schedule, has decreed that

the maximum penalty for Commonwealth offences

involving heroin and cocaine is exactly the same.

Commercial quantities in the case of heroin is 1.5

kilograms, in the case of cocaine 2 kilograms, a

slightly different quantity, the maximum is life.

Gibson's case, two grams are traffickable for both	In the case of traffickable quantities, which is
heroin and cocaine, no distinction drawn at all,
the maximum penalty is 25 years imprisonment. That
has got to be the starting point for any judge, in our submission, that Parliament has equated the
drugs in terms of the penalty that is available for
a breach of those particular provisions.
Indeed, there is authority, which I will not take the Court to at this time, but there is
authority for the proposition that when one is
dealing with schedules of this kind, one is dealing
for example with commercial quantities involving
people like Pereira, Parliament has, as it were,
started the process, has set its stamp upon any

Pereira 14 4/8/92

judicial notice that has to be taken. The starting

point is the legislation. If one is to depart from

the prima facie position that Parliament has taken

that there is no distinction to be drawn by way of
the nature of the drug itself then, in our

submission, plainly the onus must rest upon the

party who says, "I want to establish the

proposition that cocaine is less serious".

How is that said to have been done in this

case? It is said to have been done because some

expert was called in South Australia in 1982 and,

at that time, ventured the general opinion that

cocaine was less dangerous than heroin. We know

nothing of the quality or capacity of that

particular expert. There is a judgment reported

only in the Law Society Judgment Scheme, which

describes him as Dr Fuller, which describes him as

an expert, and says that that is what he said in

that case.

In the later case of Shafik in South

Australia, 1988, the court accepted that as being the position in South Australia, based upon the

earlier evidence which had been given in that case

but, curiously, Shafik is the case that

demonstrates the very point that we wish to make

about this matter, and that is that in Shafik the

court itself said, at page 143 of the judgment,

that:

The courts in this State -

that is South Australia

have have little occasion to be concerned with

offences involving cocaine and this appeal was brought to enable the Court of Criminal Appeal

to establish an appropriate standard of

punishment.

And then it went on to recite what Dr Fuller had

said six or seven years ago. The courts in South

Australia have very little experience with cocaine,

and the courts in South Australia have said, based

on that old opinion, that that is the view that

should be taken of cocaine.
The courts in New South Wales have, in our submission, vastly more experience of dealing with

cocaine. One can see that simply from the number

of reported judgments in the Court of Criminal

Appeal that deal with cocaine. There have been a large volume of them. Indeed, 11 cocaine cases were cited to the Court of Criminal Appeal in this

case, 11 cases involving nine judgments of the

Court of Criminal Appeal and two judgments at first

Pereira 15 4/8/92

instance, for tariff purposes, in the written

submissions handed to the court, in this case, and

they are all recent cases in New South Wales. Prevalence, in our submission, is obviously a

factor which a court is entitled to take into

account in determining how a Commonwealth offence

ought to be dealt with in a particular State. This

Court has said so, we say, in terms, in Leech's
case. Mr Justice Brennan did so expressly in the
unreported judgment at page 16, and the majority
members of the Court, the other three members of
the Court said so, we say, by implication at
page 10 of the unreported judgment in Leeth, that
prevalence, local conditions, are matters that can

lead to a variation of Commonwealth sentencing, and

this Court was well entitled to conclude that

cocaine is a prevalent problem, a more prevalent

problem in Sydney than it would be in South

Australia where it was said by the court it is

virtually unknown.

DEANE J:  On what basis did the Victorian court go along

with the South Australian approach?

MR WEINBERG:	It did originally, Your Honour, only on the basis that Mr Justice. Southwell, a very experienced
judge in that State, had said, for his own part, he
said in Ryan's case, he would not treat cocaine as
being as bad as heroin, but that decision has been overruled, Your Honour, subsequently, in a later
case of Thomas and Doig, which we have copies of, where a later Court of Criminal Appeal said
Mr Justice Southwell was not to be taken as having
intended to lay down a rule of that kind and there
was no rule of that kind and that, absent evidence
to the contrary, there was no reason to distinguish
between cocaine and heroin. The case of Thomas and
Doig which we - - -
MASON CJ:	Have you got that decision there?

MR WEINBERG:  Yes, Your Honour, we do. It is pages 9 to 13

in Reg v Thomas, Seed and Doig, and we hand that to
the Court.	So even the assertion that Victoria is

with South Australia, in our submission, is not

correct and, in fact, Western Australia also, in

our submission, goes along with the approach

adopted in New South Wales and Victoria. We have a

case of Robertson where cocaine is equated with

heroin and LSD.	It is pages 9 to 13 in the
unreported judgment.	I will take Your Honours to

the exact passage before I go on to Robertson, but

what we are saying is that if anyone is out of step

it is very much South Australia and not New South

Wales.

Pereira 16 4/8/92

Your Honours will see, at the bottom of

page 10, reference made to:

The expression of opinion of Southwell, J

in R v Ryan -

and the court said that that was:

an expression of present opinion on a matter

of fact by one member of the Court whose

considerable experience sitting as a trial

Judge and a member of the Court of Criminal

Appeal no doubt led him to that conclusion.

The court then cited a very different view from a

different judge, the judge who had sentenced in

this case, and at the bottom of page 12,

Your Honours, the second last paragraph, the Court

will see that this was stated by the court

comprising Mr Justice Crockett - who had been a

member of the court in Ryan's case, interestingly

enough, and ought to have known whether he was

agreeing or not agreeing with

Mr Justice Southwell's proposition - said at the

bottom of page 12:

The offences of trafficking in the drugs

of dependence of heroin and cocaine are very
serious offences and both deserve severe

punishment. It is not appropriate for this Court in the absence of expert testimony to seek to categorise such offences further.

So again, we say that the position in Victoria at

present, based upon the starting point which is

that the legislature draws no distinction, based

upon such judicial notice as has been taken of

these matters, is that cocaine is not

distinguishable from heroin. If somebody wishes to

prove that that is not so, the onus, in our

submission, rests upon the person who would seek to

draw that distinction and, as Your Honour

Mr Justice McHugh rightly pointed out, these cases

really do involve, in our submission, mixed

questions of fact and law but they are more on the

fact side. than the law side. They involve findings

of fact. They certainly do not involve any
question of construction of section 233 or 235 of

the Customs Act, in our submission. Cases such as

Abbrederis which talk about the desirability of

construing legislation in a uniform or consistent

matter of assessing the gravity of an offence, and

manner have very little bearing, in our submission,

upon the precise question that is addressed here.

one does that in ways that do not involve questions

of construction. In one State the crime of rape

Pereira 17 4/8/92

might be regarded as a more serious crime amongst

the Court of Criminal Appeal than in another State

because there have been a spate of particularly

vicious rapes over a period of time which require

more serious deterrent penalties to be imposed.

That does not mean that there is a difference of

construction, in our respectful submission.

If I could just cite the case of Robertson.

That is reported at - - -

MASON CJ: That decision is almost two years old apparently.

MR WEINBERG:  The unreported decision?

MASON CJ: In Thomas, yes.

MR WEINBERG:  Yes, Your Honour, it has not been reported.

MASON CJ: That is perhaps surprising.

MR WEINBERG:	Your Honour, it is not surprising in light of the fact that it is just accepted learning that one
does not draw these sorts of distinctions,
particularly when one is dealing with large
quantities of. drugs; one never draws them in those
cases.  What is the difference in sentencing if
somebody has imported $10 million worth of cocaine
or $10 million worth of heroin through a sophisticated and elaborate importation process?

At the lower end of the scale, if one is

dealing in a gram or two grams of the substance, it

might very well be appropriate to draw

distinctions, but neither of these cases falls into

that category. These are both cases dealing with very large quantities of cocaine; six kilograms,

three times the commercial quantity, and one

kilogram, vastly in excess of the trafficable

quantity of two grams.

Just to complete the exercise, Your Honour,

Robertson's case, the Court of Criminal Appeal of

Western Australia, if we could hand the Court copies of that. There is an observation by the

court in dealing with the effects of a new drug

called Ecstasy. Perhaps I should have said this:

the two South Australian cases do not involve any

Commonwealth statute anyway.

That is of importance, in our submission.

Both the South Australian cases dealt with the

State legislation; they did not deal with the

Customs Act. Neither person: Webb-Meyer nor
Shafik was dealt with for a Commonwealth offence.

They are purely State offences.

Pereira 18 4/8/92

Robertson: that case contains an observation

by the Court of Criminal Appeal in Western

Australia at page 230 about the effects of the

drug, our learned friend, Mr James, spoke of, MDMA,

which is known as Ecstasy, where the court, having

heard expert evidence - this being a new drug about

which the court had no knowledge - they were of the

opinion, half-way down the page:

that MDMA (Ecstasy) should be treated as in
the middle range of drugs which attract the

maximum sentence of 25 years imprisonment,

being more serious than cannabis resin

derivatives, but less serious than LSD,

cocaine or heroin.

Now, if one can make anything of that, it

seems to be that cocaine and heroin are broadly

equated as being in the upper range of drugs in

Western Australia. So, again, we submit that if

anyone is out of step it is South Australia and it

may be that the answer to the South Australian

problem will be an updated version of expert

evidence; that new evidence might produce a

different result.

Again, it may be that if somebody cares to

call some evidence in one of these cases in New

South Wales, the problem may be thrown up and

properly thrown up, but not in a case of this kind,

in our respectful submission, particularly having

regard to what was said in Leeth by the Queensland

Court of Criminal Appeal.

We would finally want to say, Your Honours,

that both sentences in this case, Pereira and

Gibson, the increase rendered by the Court of
~riminal Appeal put them fairly and squarely within

the range of cocaine sentences for New South Wales.

They were far too light initially. They are now

within the general range of New South Wales cocaine

sentences and, we submit, there has been no

miscarriage of justice whatever. There is nothing

wrong with the sentences that were imposed by the

Court of Criminal Appeal in either Pereira or

Gibson.

Indeed, the very case that our friends might seek some comfort from, Shafik, in South Australia

where cocaine is said to be less serious than

heroin, if one compares the sentence in that case,

it was a sentence increased to nine years with a

minimum of six which has to be corrected in

South Australia because there are remissions. That

comes to a genuine six years with a minimum of

four. If one compares that for 400-odd grams of cocaine, which was less than half the quantity of

Pereira 19 4/8/92

Mr Gibson in this case - Mr Gibson has ended up

with only a little more than what Mr Shafik ended

up with, although he had over twice the quantity -

and Mr Pereira has got 12 times or 15 times the

quantity that Shafik has, and he has ended up with

only twice the sentence.

So, even if the South Australian court is

taking the view that cocaine is less serious than heroin, an examination of the sentences that they are imposing in those cases does not indicate any inconsistency at all between the treatment of

people in South Australia for cocaine offences and

the treatment of persons in New South Wales.

In an ideal world, it is not an altogether

wonderful thing to have assertions simply made by

appellate courts and, in an ideal world, it would

be better, perhaps, if facts were established, and
one can accept that. But the fact is that trial

judges and appellate courts are always involved,

particularly in the sentencing process, in making

these kinds of judgments about the gravity of

offences, assessments - they call in aid their

general experience; they call in aid their

knowledge of life, their reading - even newspapers,

even television - and they are perfectly entitled

to do so, in our respectful submission.

Those are the matters that we would advance in

opposition to each application, if the Court

pleases. We have a stronger objection to Pereira

than we do to Gibson, if I can put it that way,

because the point was never even addressed in

Pereira. In Pereira it just is not a live issue at

all and we really do not see how it is put that
all, but we also oppose special leave in Gibson.

this could possibly generate special leave for

MASON CJ: Yes, Mr James?

MR JAMES: Very quickly, Your Honours, in reply. This was a

Crown appeal.	The trial judge had embarked on his
inquiry.	The Court of Criminal Appeal held that he

was in error in that he sought to discriminate

between cocaine and heroin by adopting a rule, not

based on any inquiry, into evidence as is

apparently to be suggested is the appropriate way

to do so in Victoria and, indeed, in South

Australia.

In so far as that is concerned, it is New

South Wales that is out of step by adopting a fixed

policy. There is nothing to suggest in the

judgments that in New South Wales it would be open

to call evidence before a trial judge to seek to

Pereira 20 4/8/92

define differing culpability. Indeed, New South

Wales has simply laid down that policy by the Court

of Criminal Appeal.

It is also said that he was in error in

attempting to achieve consistency and that

consistency between those involved in the same

major transaction. In our submission, the cases my

learned friend has cited, when added to Jackson,

Tait and Bartley and so forth, do disclose the

proposition that one can decide on culpability on

the basis of appropriate judicial notice or

appropriate evidence to enable one to lay down

policies to be followed as a matter of convenience,

but it does not disclose any support for the

proposition that New South Wales is, as it were, in

step with the others, and South Australia out of

step. Indeed, the very material he discloses

suggests that the course adopted by New South Wales

in the very line of cases he asserts that establish

a tariff within which this sentence fits is in

error in that it is that very line of cases that we

are seeking to attack based on this very

proposition.

In effect, in our submission, to suggest there

is no miscarriage because the sentence is in line

with the sentences that have been passed in these cases in New South Wales, is to mistake the ambit of the attack.

Unless I can assist the Court further -

perhaps I should say that in Veen, on our list of

authorities, in the judgments of Mr Justice Wilson

and Justice Gaudron, there is some reference to a

evidence do not bind the Crown on a Crown appeal.	proposition that the rules relating to fresh reasoning basis or authority for those conclusions.
It appears that what has happened in the present appeal is that on a Crown appeal, without calling evidence below and without calling evidence before
the Court of Criminal Appeal, the Crown has
obtained the advantage of either a factual or
judicial notice or policy or presumption finding in
its favour and thus has found the trial judge at
first instance to be in error.

Now, that is why we categorize this case as a

process case.	We are not asking this Court to
embark on a fact-finding exercise.	We are asking

this Court to examine the processes whereby a Court

of Criminal Appeal determines matters of policy for

the guidance of the inferior courts within the

federal jurisdiction throughout Australia.

MASON CJ:  Mr Hidden?

Pereira 21 4/8/92

MR HIDDEN: If the Court pleases. Just three matters,

Your Honours. It was submitted by my learned

friend that this point was not argued in Pereira's

appeal. Your Honours, I am instructed that it was

and, indeed, it appears from paragraph 5 of the

summary of argument at page 8 of the application

book that the matter was argued. However, it

apparently did not receive any comment from the

Court of Criminal Appeal in its judgment.

It was argued the same day as Gibson,

Your Honours and, of course, the matter was fully

canvassed. I am informed, Your Honours, by both

juniors that a similar arrangement was made there

as was made here. Gibson was argued first, and the

point fully argued, and then Pereira followed.

Your Honours, the Western Australian case of

Robertson to which my learned friend has referred

Your Honours, as I read it, does no more than seek

to place Ecstasy in some place in the hierarchy.

Nothing in the dicta referred to by my learned

friend suggests any attempt by that court to place

LSD, cocaine and heroin within themselves in some

kind of hierarchy.

Your Honours, my learned friend submits that

for the purpose of importation and given the

statutory maximum, and the fact that no distinction

is made in the maximum between cocaine and other

drugs such as heroin, leads to the conclusion that

what drug it is that is imported in a large

quantity has little or no bearing on a sentence.

Your Honours, that simply cannot be the law. It is

proper for the Court to have regard to the social

evils created by the drug imported.

Your Honours, I am reminded - and, of course,

I do not have the case with me - somewhat of the

decision of this Court in Ibbs v Reg, which was
dealing with - I think from South Australia - a

statutory definition of the term "sexual

intercourse" which embraced a wide variety of

activity and prescribed a single maximum sentence

for sexual intercourse without consent. The Court

made the point, of course, that what type of sexual

activity was in fact involved in had a very great

bearing on how culpable the behaviour was and what
punishment would be imposed. And the fact that the

section created a statutory definition of "sexual

intercourse" embracing a wide variety of behaviour
prescribed one maximum penalty for it did not
relieve the Court of determining the gravity of the

conduct on the particular occasion, within that

broad statutory definition.

Pereira 22 4/8/92

They are the only matters, if the Court

pleases.

MASON CJ:  Thank you, Mr Hidden. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 11.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.07 AM:

MASON CJ: The principal point argued in support of these

applications is that the Court of Criminal Appeal

erred in failing to follow South Australian

decisions and some comments of Mr Justice Southwell

in the Victorian Court of Criminal Appeal. Those

decisions and the comments of Mr Justice Southwell

were to the effect that cocaine is to be treated as

a less serious drug than heroin. The applicant's

submission is that the Court of Criminal Appeal was

wrong in refusing to follow that view in preference

to its earlier decision in Reg v Ferrer-Essis,

(1991) 55 A Crim R 231, at least without making a

factual inquiry into the question.

The short answer to this submission is that

there is no material before this Court in this case

which could provide a foundation for concluding
that the Court of Criminal Appeal adopted an

erroneous approach to the question, that approach,

evidently being based upon judicial experience, if

not judicial notice. Neither case before the Court

is a suitable vehicle for the determination of the

point sought to be raised.

It is relevant to note that the Court of

Criminal Appeal in Victoria has recently said in

Reg v Thomas & Ors (unreported, 26 October 1990):

The offences of trafficking in the drugs of

dependence of heroin and cocaine are very

serious offences and both deserve severe

punishment. It is not appropriate for this Court in the absence of expert testimony to seek to categorize such offences further.

In the application in Gibson, the applicant

seeks to raise a further question concerning

disparity in sentencing, that point being partly related to the point already dealt with. We are

Pereira 23 4/8/92

not persuaded that the Court of Criminal Appeal

erred in dealing with this question.

The applications for special leave to appeal

are therefore refused.

AT 11.09 AM THE MATTERS WERE ADJOURNED SINE DIE

Pereira 24 4/8/92