R v Paul Harold Gibson and John Larence Bagalini No. 4277 Judgment No. SCCRM 93/249 Number of Pages 8 Criminal Law and Procedure (1993) 69 a Crim R 300 (1993) 61 Sasr 151

[1993] SASC 4277

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - two accused pleading guilty to offences of importing and possessing cocaine contrary to Customs Act 1901s 233B(1)(c) - discussion as to practice of courts to differentiate between drugs according to their dangerous properties - calling of evidence for this purpose - R v Pearce
(1980) 91 LSJS 443; Kloss v R (1984) 47 ALR 692; R v Beresford (1972) 2 SASR
446 and R v Tideman (1976) 14 SASR 130 at 134 referred to.
Evidence led as to effects of cocaine. R v Shafik (1988) 148 LSJS 18; R v Webb-Myer (1982) 101 LSJS 290; R v Ferrer-Esis (1991) 55 A Crim R 231; R v Laurentiu and Becheru 63 A Crim R 411; R v Thomas, Seed and Doig (unreported CCA Victoria 26 October 1990); Pereira v R (1992) 66 ALJR 791 and R v Martinez
(1984) 6 Cr App R (S) 364 referred to.

HRNG ADELAIDE, 17 November 1993 #DATE 17:11:1993
Counsel for appellant:             Mr D J Chapman
Solicitors for appellant:         Director of Public
   Prosecutions (Cwlth)
Counsel for accused Gibson:        Mr Z Zayler
Solicitors for accused Gibson:     Melasecca Zayler
Counsel for accused Bagalini:     Mr D Stokes
Solicitors for accused Bagalini: Stokes and Stokes

ORDER
For the purposes of sentencing under the Customs Act cocaine offences should not be viewed less seriously than heroin offences.

JUDGE1 DUGGAN J The two accused have pleaded guilty to breaches of s.233(B)(1)(c) of the Customs Act, 1901. The accused Bagalini has admitted that he imported 3,804 grams of the drug cocaine into Australia and the accused Gibson has admitted being in possession of the same parcel of cocaine. In the course of submissions on penalty the Director of Public Prosecutions contended that, when sentencing offenders under the Customs Act, the courts should view cocaine as a drug which is no less serious in its nature and detrimental effects than heroin. Expert evidence on this issue was called by both the prosecution and the defence. I now set out the conclusions which I have reached on the evidence so that these reasons can be incorporated into my sentencing remarks. 2. The sixth and eighth schedules of the Customs Act, prescribe the "trafficable" and "commercial" quantities for various narcotic substances. These designations determine sentencing categories. The trafficable quantity for both heroin and cocaine is two grams. The commercial quantity for heroin is 1.5 kilograms whereas that for cocaine is two kilograms. The provisions of the Act, therefore, do not draw any significant distinction between the two drugs for sentencing purposes. The only narcotic substance which is specifically distinguished from other narcotic substances in the sentencing provisions in the body of the Act is cannabis. 3. However, where different types of drugs are encompassed within the same category for sentencing purposes it has been the practice of the courts, whilst acknowledging that the legislature has provided high maximum penalties for a broad spectrum of drugs, to differentiate between the various drugs according to their dangerous properties. (R v Pearce (1980) 91 LSJS 443; Kloss v R (1984) 47 ALR 692.) When drug prosecutions were less common it was found necessary to call evidence as to the nature and effects of particular drugs for sentencing purposes (R v Beresford (1972) 2 SASR 446.) In due course, as the courts became informed on the topic, judicial notice could be taken of facts relating to drugs which had become well known. (R v Tideman
(1976) 14 SASR 130 at 134.) However the way has always been left open for a party to tender further evidence on the effects of a particular drug (ibid p.135). 4. Evidence of the effects of cocaine was given in R v Webb-Meyer (1982) 101 LSJS 290. On an appeal against sentence in that case the learned Chief Justice summarised the effect of the evidence led before the learned sentencing judge as follows:
    "There was expert evidence as to the nature of the drugs
    involved, namely palfium and cocaine. The effect of that
    evidence is that neither drug produces in the user a physical
    dependency but both drugs are capable of producing psychological
    dependency and, moreover, if used, may produce other harmful
    effects. I think it must be accepted that the two drugs,
    palfium and cocaine, are not by any means the most serious of
    the drugs which are covered by the particular statutory
    provision regulating this sentence. The maximum sentence
    provided by law is 25 years' imprisonment or a fine of $100,000
    or both. In my view the submission made by counsel for the
    appellant that the drugs cocaine and palfium are considerably
    less serious than some other drugs covered by that provision,
    and in particular heroin, ought to be accepted. Nevertheless it
    must be borne in mind that these drugs are covered by a
    statutory provision which provides that very severe maximum
    sentence, and it is clear that the legislature expects the
    courts to exercise the powers provided by that statutory
    provision with a view to eliminating, so far as it is possible
to do by judicial sentences, their use in the community." 5. In the subsequent case of R v Shafik (1988) 148 LSJS 18 the Court of Criminal Appeal referred to the evidence which had been given in R v Webb-Meyer. The Chief Justice said:
    "The Courts in this State have had 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. Cocaine is obviously
    potentially a more harmful drug than cannabis and cannabis
    resin, which attract lower penalties under the Act. It is,
    however, on the evidence of Dr Fuller, a far less serious drug
    than heroin and morphine." 6. The evidence in Webb-Meyer's case was given by a medical officer from the South Australian Health Commission who had been involved with various drug treatment programmes. He was familiar with the general properties of cocaine but it is important to bear in mind that the brief evidence which he gave on the effects of cocaine was based on a view which, although considered correct until the early 1980s, has now been brought into question by recognised experts. In the present case I take the view that I am not bound by the attitude taken thus far to the categorisation of cocaine as a drug which is to be regarded as less serious for sentencing purposes than heroin. This was a view on a matter of fact, not law, and was based on the then available evidence. I am satisfied on the evidence which has been led before me that the harmful effects of this drug were not fully appreciated at the time of Webb-Meyer's case. Experts in the field now recognise that there were early misconceptions concerning cocaine use and this change in attitude is reflected in some of the more recent authorities in Australia and the United Kingdom. Before considering these authorities I will deal with the evidence which was led before me. 7. The prosecution called Dr Mugford who has a Bachelor of Science degree and is a Doctor of Philosophy having majored in sociology. For many years he has done extensive research into drug use and is the author of a number of publications dealing with drugs. He was responsible for a major project funded by the National Campaign against Drug Abuse which was designed to examine patterns of recreational drug abuse. An investigation into cocaine use in Australia formed an important part of this inquiry. I have no hesitation in accepting the propositions advanced by Dr Mugford in his evidence which was not challenged by the defence. 8. Dr Mugford explained that cocaine occurs naturally in the coca bush and is extracted by a variety of chemical processes. It is normally prepared as a white crystalline powder called cocaine hydrochloride. It acts as a stimulant on the central nervous system, whereas heroin is a depressant. Cocaine ingestion gives rise to intense feelings of pleasure which are replaced in due course by feelings of exhaustion and depression. 9. Dr Mugford said that the biochemical effect of heroin is more benign than that of cocaine which disrupts an existing brain cycle. It was his view that the long-term effects of cocaine are more serious than the long-term effects of heroin in that cocaine is more disruptive of body chemistry. He said that although cocaine is not physically addictive as in the case of heroin, there is nevertheless a possibility of psychological addiction in the light of its capacity to produce very pleasurable effects. There is the potential, therefore, for users to form an acute cocaine habit. 10. The witness explained that the drug "crack" was merely a form of cocaine which enabled the drug to be smoked so that the delivery of it into the body was made more effective. Cocaine could be converted into "crack" quite easily. According to Dr Mugford the price of cocaine, particularly in Australia, was quite high and it was probably more profitable to sell than heroin. It is a drug used extensively in America and in that country the need to acquire funds to purchase the drug had led to widespread crime. Dr Mugford gave evidence that cocaine consumption had increased substantially in western countries in the last decade and the true nature of its harmful effects and consequences had become known only in more recent times. 11. Counsel for the accused Gibson called Mr Lamberti to give expert evidence. Mr Lamberti is a criminologist and psychologist who has worked extensively in the field of drug rehabilitation in Australia and America. He is the executive director of the Odyssey House Drug Rehabilitation Programme in Victoria and is a member of various associations concerned with the treatment of persons with drug problems. I accept his evidence based as it is on extensive practical experience, part of it concerned with cocaine use in the community. 12. Mr Lamberti agreed with the views expressed by Dr Mugford which I have set out above. In particular he endorsed Dr Mugford's view that experts had only fully appreciated the widespread social effects of cocaine in the past ten years. However Mr Lamberti stressed that many people in the community retain the view that cocaine is a socially acceptable status drug with few harmful effects. 13. In the light of the evidence of both witnesses I can see no justification for making any distinction for sentencing purposes under this Act between cocaine and a drug such as heroin. Of course categorisation of drugs according to their detrimental effects does not admit of precision, but the uncontradicted evidence of the long-term deleterious effects of cocaine and the potential which its use has for increasing criminal activity justifies placing it on a level with the most dangerous drugs. It is true that its effects are not as well known in the community as heroin, nor is its use as widespread. However the increase in the use of illicit drugs of all descriptions over the last 20 years suggests that there is a ready market for cocaine and a serious view should be taken of offences concerned with its distribution and, in particular for present purposes, its importation into this country. 14. As I have said the growing recognition of the dangerous effects of cocaine is reflected in recent decisions of courts elsewhere. In R v Ferrer-Esis (1991) 55 A Crim R 231 the appellant appealed against conviction and sentence on a charge of possessing cocaine which had been imported into Australia contrary to s.233(B)(1)(c) of the Customs Act. Hunt J, in delivering the judgment of the New South Wales Court of Criminal Appeal said (p.236):
    "For some time it was thought that the penalties
    appropriate to offences involving cocaine should be less than
    those involving heroin, but that view has now been firmly
    rejected in a number of cases. For example, in Chase
    (unreported, Court of Criminal Appeal, NSW, Lee CJ at CL, Allen
    and Badgery-Parker JJ, No 60487 of 1989, 19 October 1990) at p
    20, Lee CJ at CL (with whom the other members of this Court
    agreed) said: '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.' I respectfully endorse that statement,
    and I agree that it is a wrong approach to say that lower
    sentences should be imposed for offences involving cocaine than
    for those involving heroin." (See also R v Laurentiu and Becheru
63 A Crim R 411.) 15. In the above cases the courts appear to have taken judicial notice of the nature and effects of cocaine as well as taking into account the absence of any significant distinction between cocaine and heroin in both State and Federal legislation. These considerations were discussed in R v Thomas, Seed and Doig (unreported decision of the Court of Criminal Appeal (Victoria) 26 October 1990) where McDonald J, in delivering the judgment of the court said:
    "It was argued on behalf of the applicants by their
    respective counsel that the sentencing Judge had regarded the
    pernicious effects and criminality of trafficking in cocaine to
    be equivalent to that of heroin and that was a mistake as it was
    accepted as a fact that heroin was more harmful to society than
    cocaine. Miss Leider, who appeared on behalf of the applicant
    Thomas, submitted that the expression of view of the sentencing
    Judge was contrary to the view expressed by this Court on a
    previous occasion. In R v Ryan (unreported: 24 February 1988)
    Southwell J when sitting as a member of the Court of Criminal
    Appeal which had before it appeals from sentences imposed for
    trafficking in a drug of dependence, namely cocaine, said: 'The
    offences obviously are very serious, but speaking for my own
    part, I would not believe that cocaine trade offers as great a
    threat to society and to the victims of it as does the heroin
    trade'. It appears from the judgements in that case that
    Crockett J agreed with Southwell J that the applications of the
    appellants for leave to appeal against sentence should be
    allowed. He stated further, 'I do so agree substantially for
    the same reasons which have just been given by Southwell J'.
    JH. Phillips J the third member of the Court said - 'I also
    agree and concur in the Orders proposed'. It was submitted that
    by that judgment this Court has put its 'stamp' of approval on
    the proposition that cocaine does not offer as great a threat to
    society as does the heroin trade and that by doing so this Court
    has provided guidance to sentencing Judges and Magistrates. The
    expression of opinion of Southwell J in R v Ryan and to the
    extent that it was agreed to by the other members of the Court
    is not a statement of legal principle which as such would be
    binding on other Courts of this State. It is 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. ... Although the amount of heroin required to
    attract the higher sentence for trafficking in a quantity of
    that drug of dependence, by being not less than a commercial
    quantity of that drug, is for heroin 25 percent less than that
    for cocaine, trafficking in the drug of dependence cannabis
    needs to be of far greater quantity than either of those two
    other drugs of dependence in order that the trafficker may
    attract the imposition of a higher sentence. It is to be noted
    that in the case of heroin and cocaine the prima facie
    evidentiary fact of trafficking pursuant to s73 of the Act is
    established by possessing the same quantity of heroin and
    cocaine, whereas to establish that prima facie evidentiary fact
    in respect of cannabis, possession of 125 percent more in weight
    of that drug of dependence would need to be established.
    Although it may be said that these provisions demonstrate that
    the legislature distinguishes between trafficking in cocaine and
    heroin, they also demonstrate that there is a marked distinction
    to be drawn between those two drugs of dependence as classes of
    drugs of dependence and cannabis. 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." 16. The differing approaches apparent from this discussion were referred to by the High Court when refusing special leave to appeal in Pereira v The Queen; Gibson v The Queen (1992) 66 ALJR 791. In a joint judgment their honours said:
    "The principal point argued in support of these
    applications is that the Court of Criminal Appeal (NSW) erred in
    failing to follow South Australian decisions and some comments
    of Southwell J in the Victorian Court of Criminal Appeal. Those
    decisions and the comments of Southwell J 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 R v Ferrer-Esis (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 R v Thomas (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 categorise such offences
    further.'" 17. Finally, the views of the experts which I have been discussing are reflected in the remarks of Lord Lane CJ when delivering the judgment of the court in R v Martinez (1984) 6 Cr App R (S) 364; Current Sentencing Practice Vol 1 B11-22003.) After noting that the relevant legislation drew no distinction between the various types of Class A drugs which include heroin and cocaine, his lordship said that it was wrong to treat cocaine dealers more leniently than those who dealt with other Class A drugs. He continued:
    "This case concerns, as already indicated, the importation
    of cocaine hydrochloride. The illicit importation and abuse of
    this drug is on the increase. It is time to draw attention to
    the increasing abuse of cocaine and the dangers of its abuse and
    to dispel the myth which seems to obtain in some quarters that
    cocaine is merely some sort of social aid and is not addictive.
    Cocaine is a powerful stimulant contained in the leaf of the
    coca plant which grows in abundance chiefly in the Andean
    regions of South America where climatic conditions are
    favourable to it. Cocaine has apparently, over the years,
    retained an appeal to the wealthy, the influential and the
    intellectual. It is that type of user who has been responsible
    for perpetuating the false elitism which accompanies its use.
    Unhappily the abuse of cocaine has not been confined to that
    particular section of society. With the increased availability
    of the drug, all section of the community now have access to it
    and are in danger of being tainted by its compelling addictive

    qualities. International organisations have estimated the
    productive capacity of the Andean growing area as in the region
    of 150,000 metric tonnes. About 15 per cent of that total
    quantity is consumed by the natives of that part of the world
    themselves, who chew the leaves, 5 per cent is used for
    pharmaceutical purposes and the balance of 80 per cent of the
    total production is left to find its way to the illicit markets
    of the world. Up to date the United States of America has been
    the main market for the drug. We are told, and there is no
    reason to disbelieve it, that of the 4 to 5 million Americans
    who it is said regularly now use cocaine, no less than 200,000
    are now profoundly dependent on the drug. It is possible, and
    it can only be a possibility, that due to the saturation of
    America by the drug, the traffickers are now looking to expand
    to other markets and it is accepted that Canada and Europe are
    likely to be the target for their activity. Unhappily this
    prediction has already started to be justified. These are the
    figures: in 1972, 23 kilogrammes of cocaine were seized in
    Europe. By 1983 the figure was no less than 952 kilogrammes.
    The present surplus of the coca leaf in South America and the
    huge profits which traffickers can make between the purchase
    price in the Andes and the selling price in European countries
    will inevitably encourage further trafficking into Europe which
    will doubtless stimulate interest and demand by additional
    experimenters and users. With these profits to be made, further
    professional criminal involvement in the trade is inevitable
    with all that means. The number of seizures of cocaine in the
    United Kingdom rose from 400 in 1982 to 700 in 1983. The actual
    amounts seized were 100 kilogrammes which is no less than five
    times the amount seized in 1982 and more than twice the previous
    peak of 40 kilogrammes in 1980. The United Kingdom is still
    very much in its infancy so far as cocaine abuse is concerned.
    However the increased quantities seized tend to suggest that an
    upward spiral has begun. Anything which these Courts can do to
    prevent that spiralling will be done." 18. I have reached the conclusion that, for the purposes of sentencing under the Customs Act, cocaine should not be placed on a level lower in the spectrum than drugs such as heroin. However I accept the submission that the general community may not, as yet, be fully aware of the dangers inherent in cocaine use and that this is a factor which is of some relevance to sentencing at the present time. I propose to comment on this aspect in the course of my sentencing remarks.