R v Poon

[2003] NSWCCA 42

Reported Decision: (2003) 56 NSWLR 284
138 A Crim R 204

New South Wales

Court of Criminal Appeal

CITATION:	R v NAI POON [2003] NSWCCA 42
HEARING DATE(S):	6 December 2002
JUDGMENT DATE:	5 March 2003
JUDGMENT OF:	Ipp JA at 1; Hulme J at 21; Bell J at 56
DECISION:	Appeal dismissed
PARTIES :	Regina Al Nai Wan NAI POON
FILE NUMBER(S):	CCA 60110/02
COUNSEL:	Crown: M Bracks Appellant: A Francis
SOLICITORS:	Crown: SE O'Connor Appellant: DJ Humphreys

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	99/11/0550
LOWER COURT JUDICIAL OFFICER :	Kirkham DCJ

- 20 -

60110/02

IPP JA
HULME J
BELL J

Wednesday 5 March 2003

R v AL Nai Wan Nai POON

Judgment

1 IPP JA: I agree with the reasons and conclusions of Hulme J and would make the following additional comments in regard to the first ground of appeal, namely, that Kirkham DCJ erred in finding that “MDMA is equivalent to cocaine”.

2 There have been a number of instances in this Court where judges have said that mid-range drugs such as MDMA are less serious for sentencing purposes than hard drugs such as cocaine and heroin. Typical of these is R v Durant [2002] NSWCCA 295 where it was accepted that MDMA is not as bad in its effect as heroin and this could give rise to a discount in the sentence that should be imposed.

3 This approach ignores the principle that the seriousness of an offence must be judged by reference to the relevant statute creating the offence, particularly the maximum penalty, but also any other provisions that may be relevant. As Hulme J has demonstrated, the provisions of the Customs Act are such that it is ”impossible, consistently with ordinary principles of construction, for the Courts to say simply that heroin or cocaine are worse, or dealing in them more heinous, than dealing in MDMA”.

4 The view expressed by Hulme J is consistent with the following remarks of Wood CJ at CL (with whom Sully and Simpson JJ agreed) in R v Bimahendali (1999) 109 A Crim R 355 at 362:

“Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ”.

5 Reference was made to R v Bimahendali in R v Harvey [2000] 113 A Crim R 434 where Sperling J (with whom Fitgerald JA and Whealy J agreed) said at 436-7:

“A distinction has been recognised by the courts, for sentencing purposes, between high-range drugs such as heroin and cocaine and mid-range drugs such as amphetamines: see R v Bimahendali (1999) 109 A Crim R 355 at 362 and the cases cited there. The result is that penalties are expected to be somewhat less for offences involving mid-range drugs than for offences involving high-range drugs: R v Bimahendali at 363. I very much doubt that this is a correct approach in view of the detailed way in which the Parliament has promulgated a regime of maximum penalties for such offences, involving specified quantities in relation to each drug, with some variations, but otherwise making no distinction between the drugs specified. The Parliament may have made all the distinctions intended to be recognised between particular drugs or classes of drug. No distinction between high and mid-range drugs is made as such in the legislation. But the distinction is now so entrenched that a departure from that approach should not, in my view, be entertained now without the benefit of full argument, preferably by way of a guideline judgment to complement Wong and Leung (1999) 48 NSWLR 340. A full argument on the point was not heard in the present proceedings”.

6 It is to be noted that his Honour thereby, in effect, reiterated the view expressed by Wood CJ at CL in R v Bimahendali that, fundamentally, the “best guide” for sentencing was the legislation that created the offence and laid down the maximum penalties applicable.

7 I would add that, in the light of Wong v R (2001) 207 CLR 584 (and the relevant statute being a law of the Commonwealth parliament), the suggestion in R v Harvey concerning a guideline judgment is no longer apposite. Moreover, in the present case, the question whether there was any equivalence for sentencing purposes between heroin and cocaine, on the one hand, and mid-range drugs, such as ecstasy, on the other, was squarely raised and argued. The strictures on examining the issue, referred to in R v Harvey, do not apply in the present case.

8 The Court of Appeal of Victoria, following R v Bimahendali, has also stressed the importance of the applicable legislation in assessing the relative seriousness of offences involving MDMA. In R v Casey [2002] VSCA 117 Winneke P said:

“The comments which the Court has made about drug importation in recent years, in my view, apply as much to methylamphetamine as they do to heroin, notwithstanding that it is sometimes thought that amphetamines are ‘recreational drugs’ of less intensity and addictive power than, for example, heroin and cocaine. His Honour was correct to point out that methylamphetamine, however one classifies it, is a mood altering drug and is capable of creating anti-social behaviour and damage to the youth of our community in similar proportion to the so-called ‘hard drugs’. I agree with the comments of Wood CJ in the case of R v Bimahendali to the effect that it is non-productive in sentencing offenders to speak of graduations of seriousness depending upon the substance involved. Courts should always take their cue from the legislature and the penalties prescribed by statute rather than import into the sentencing discretion individual views as to the perniciousness of the substance. In that direction will ultimately lie inconsistency of sentences. Similar comments were made by this Court in the case of R v Carey [1998] 4 VR 13 at 18.

See also the remarks of Winneke P in R v Mandala [1999] VSCA 159.

9 The views expressed in R v Bimahendali were taken a step further by Heydon JA, with whom Wood CJ at CL and Carruthers AJ agreed, in R v Efendi (2001) 125 A Crim R 487 at 493. In that case Heydon JA said:

“It is certainly common to describe ecstasy as a mid-range drug. But it does not follow that the importation of ecstasy is less serious than the importation of cocaine. The proposition that the importation of ecstasy is less serious than the importation of cocaine is inconsistent with R v Schaal (unreported, Supreme Court of New South Wales, Wood J, 8 September 1989) a case frequently referred to without disapproval by this Court”.

And, further:

“Cocaine is a drug which can cause very great damage to its users. It seems that even in 1989 that was perceived to be the case for ecstasy also. Since 1989 nothing has happened to change that perception.
The proposition that ecstasy importation is less serious than cocaine importation, at least in the eyes of the Commonwealth Parliament, is also inconsistent with the fact that the maximum penalty of life imprisonment for importing commercial quantities is the same as the maximum penalty for importing commercial quantities of cocaine (and heroin).”

10 Some have expressed the view that evidence is required before a court can regard the consumption of mid-range drugs such as MDMA as being as harmful to the community as drugs such as heroin and cocaine. See R v Spillane [1999] NSWCCA 280 where Hidden J, with whom Newman and Simpson JJ agreed, said:

“[I]t was not open to his Honour to characterise ecstasy as more dangerous than a middle range drug on the basis of anecdotal evidence and media reportage, and in the absence of the evidence of appropriately qualified experts”.

See also the remarks of Tadgell JA in R v Mandala .

11 Many courts, however, notwithstanding an absence of evidence on the issue, have relied on the experience of judges (gathered while presiding over trials and appeals and in reading the facts of reported cases) in emphasising the seriousness of crimes involving mid-range drugs. In this Court the remarks of Heydon JA in R v Efendi fall into this category; see also R v Leung [2002] NSWSC 858 where Wood CJ at CL noted that “the importation of ecstasy as a mid-range drug … is regarded very seriously”.

12 In Victoria, in R v Carey [1998] 4 VR 13, Winneke P (with whom Batt and Kenny JJA agreed) observed that in that State the offence of importing ecstasy had not been as prevalent as the offence of importing heroin. His Honour referred to R vBowers (1997) 97 A Crim R 461 and Reisener (unreported, Supreme Court of Western Australia, 11 August 1995), where suggestions had been made that the level of criminality involved in the offence of importing ecstasy should be regarded as less than that involved in the importation of heroin, and observed:

“Such a view appears to stem from the proposition that ecstasy is a ‘recreational drug’ which does not possess the same properties of addiction as heroin and, hence, the same capacity for destruction of the health of the young members of our community. However, it does seem to me that courts should be cautious not to permit this argument to intrude too largely into their sentencing processes. Although ecstasy has been a newcomer onto the scene of proscribed imports, Parliament has seen fit to place it upon the same rung of the ladder as heroin and other morphine based substances. Furthermore, in recent times, specific events have occurred in New South Wales and Queensland which have demonstrated just how harmful the substance can be to the health of the young members of the community even when taken in small quantities. As Hunt CJ at CL pointed out in Bowers’ case at 10, much has happened and much has been discovered since Wood J first made his comments about the substance in 1989 [in Schaal ], and his Honour expressed the view that the time has come for the authorities to take a closer look at ecstasy to see whether ‘its status in the relative seriousness of the various drugs’ should be adjusted. I entirely agree”.

See also R v Zehavi [1998] VSCA 81 and R v Casey .

13 In Western Australia, in R v Darwell (1997) 94 A Crim R 35, Malcolm CJ said at 40:

“In my opinion, having regard to the increasing prevalence of the use of MDMA or ecstasy, which is one of the drugs in the amphetamines group, and taking into account the increasing prevalence of the use of amphetamines generally, including methylamphetamine, the courts have tended to firm up the sentences for the sale or supply of such drugs or their possession with intent to sell or supply ….
It is important to note that methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If not equated to heroin and cocaine, it is close enough to those drugs to be regarded as in the same category: Calder (unreported, District Court, WA, Hammond CJDC, 7 September 1995); Bellissimo (1996) 84 A Crim R 465; Krakouer (1996) 16 WAR 1 at 33-35 …; and Calder (unreported, Supreme Court, WA No 960534, 11 September 1996 per Malcolm CJ).
In Bellissimo , in a passage cited in my judgment in Calder , (with which Franklyn and Owen JJ agreed) Anderson J said:
‘The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused widespread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent’.
While this case is concerned with MDMA or ecstasy and not methylamphetamine, what Anderson J said has application to amphetamines generally and ecstasy in particular. In my opinion, it may now be appropriate to reconsider the classification of MDMA or ecstasy in the light of additional evidence regarding its deleterious effect. In the meantime, there is every justification for ‘firming up’ on the sentences to be imposed beyond the sentence which was imposed in the present case.”

Darwell was followed by Heryadi v The Queen (1998) 19 WAR 383 and Roberts v The Queen [1999] WASCA 273 in which the sentiments expressed in Bellissimo and Darwell were reiterated.

14 In Ruvinovski v The Queen (2000) 116 A Crim R 131 Anderson J (with whom Kennedy ACJ and Ipp J agreed) said at 144:

“Speaking for myself, in the four years or so that have passed since Bellissimo , I have had no reason to change what I said. Trafficking in amphetamine continues to be rife, continues to involve young, even very young, members of the community and continues to be destructive of families and to have tragic consequences for individuals. There remains a high level of community concern about it and rightly so.”

15 The approach in other States is of particular relevance as courts throughout Australia should adopt a common approach to the sentencing of offenders against laws of the Commonwealth; Medina v R (1990) 108 FLR 288 at 292 (per Malcolm CJ).

16 It is plain from these authorities that in recent times there has been a recognition by courts in most parts of the country that the use of mid-range drugs causes great harm to the community and there is a need for sentences that have an effect of general deterrence. I would follow that approach.

17 Furthermore, following R v Efendi, I agree with Hulme J that a primary factor in determining the appropriate sentence will be the relevant statutory regime, and the sentencing tribunal will have due regard to the maximum penalty prescribed for the particular drug in question.

18 With respect to those who have expressed different views, I do not think that a person who commits a mid-range drug offence is entitled to a discount in comparison with the sentence that would be imposed for a similar offence, relating to heroin or cocaine, merely on the ground that a mid-range drug is a less harmful substance.

19 Where the maximum penalty for an offence involving one drug is the same as that for an offence involving another, it may be said in a very general sense that there is an equivalence between the two offences. But that will not be a particularly helpful observation as the quantities of the drugs involved will almost certainly differ, and the criminality to be attributed to the conduct involving a particular quantity of one drug will almost certainly differ from that involving a like quantity of the other drug. Accordingly, it will usually be futile to compare sentences imposed for one offence with another. In any event, I agree with Ormiston JA who observed in R v Spokes [1999] VSCA 210 that comparative exercises in sentencing are almost invariably misconceived, except when true issues of parity or lack of parity as between co-offenders require them to be conducted. The reason for this is, as his Honour said:

“The circumstances of each offence vary and, more importantly, the relevant personal circumstances, as defined by the courts, of the offenders vary so markedly that to compare one case with another throws up more questions than it answers”.

20 In conclusion, I do not think that Kirkham DCJ’s remark that “MDMA is equivalent to cocaine” was anything more than a passing observation carrying little significance. I come to this view as I consider, for the reasons expressed by Hulme J, that the sentence imposed was within his Honour’s discretion. In any event, in the very general sense that I have explained, the remark in question is correct.

21 HULME J: On 16 December 1999 the Applicant was sentenced by Judge Kirkham on one count of importing into Australia a trafficable quantity of narcotic goods namely 3-4 methylenedioxymethamphetamine otherwise known as “MDMA” or “ecstasy”. The quantity involved consisted of about 5,800 tablets with gross and net weights of 1458.6 and 339.2 grams respectively. The estimated street value was said to be in the order of $116,000-$408,000, depending on where in the range of $20 to $70 the 5,800 tablets were sold. The sentence imposed was one of 7 years imprisonment commencing on 8 August 1999 such term including a non-parole period of 4 years.

22 The Applicant arrived at Sydney airport on 8 August 1999 from Kuala Lumpur. He was searched at the airport and the drugs were found contained in elastic material around his waist. His Honour was not prepared to find that the Applicant was a principal in the importation. There was evidence that there had been persons enquiring for the Applicant at the hotel where, but for his arrest, he would have been staying but in an interview with the police the Applicant himself said that he had intended selling the tablets. Not everything the Applicant said in his interview was believable.

23 So far as the Applicant’s subjective circumstances are concerned, his Honour found that the Applicant had a good work record and noted that English was not the Applicant’s native language. It is not clear but I think his Honour accepted that the Applicant was contrite and remorseful. In an ERISP the Applicant had said that prior to his involvement in the importation, his savings had run out. He pleaded guilty at an early stage albeit in circumstances where the Crown case was very strong.

24 Thus, with the possible exception that the Applicant may have been going to sell some or all of the drug himself, there was nothing to distinguish the case from the typical one of a courier caught at the airport.

25 Schedule VI of the Customs Act 1901 (Cwth) indicates that the minimum trafficable quantity of ecstasy is 0.5 gram and the minimum commercial quantity 0.5 kilograms. So far as is presently relevant the maximum penalty for importation of not less than a trafficable quantity is imprisonment for a period not exceeding 25 years and a fine of $500,000. At the time the Applicant was sentenced regard was required to be had to the terms of Section 16G of the Crimes Act. By reason of the fact that remissions are not available in New South Wales prisons, an adjustment downwards in the sentence otherwise thought appropriate was required. No fixed formula existed for that adjustment although commonly a one-third reduction had been made – R v Bourel (unreported NSWCCA 11 December 1998). If one adopts a figure of about one-third, the effective maximum sentence involving not less than a trafficable quantity became something of the order of 16½ to 17 years. The Applicant’s head sentence was little more than 40% of this and his non-parole period a little less than one-quarter of this. The quantity of drugs was about two-thirds of the maximum trafficable quantity.

26 Two grounds of appeal were taken in written submissions filed on behalf of the Applicant. It was submitted firstly, that his Honour “erred in finding that MDMA is equivalent to cocaine” and, secondly, that an analysis of similar cases demonstrates the sentence is outside the appropriate range. In oral argument it was also submitted that his Honour had erred in the way he had taken account of the decision of this Court in R v Wong and Leung (1999) 48 NSWLR 340.

27 What his Honour said which inspired the first and third of these grounds was:-

“In R v Wong and Leung , a guideline decision of the Court of Criminal Appeal handed down 16 December 1999, promulgated a number of classifications intended to be applied to couriers and persons low in the hierarchy of the importing organisations relating to cocaine and heroin. …
Finally, it is appropriate that in the application of the sentencing guidelines, this being a Commonwealth matter, I should apply those principles on the basis of the purity level of MDMA rather than the gross weight level, that is, 339.2 grams, sets the quantitative importation measurement to low level trafficable quantity. I have also treated MDMA as approximately equivalent to cocaine.”

28 Immediately after his Honour had sentenced the Applicant, the following exchange occurred between his Honour and counsel for the Applicant:-

HIS HONOUR: That covers the lot of the matters that have to be covered under that terrible Act of yours Mr Hassell?
HASSELL: Yes your Honour, the only possible complication is, I don’t know whether your Honour wants to consider this now. There’s some authority to the effect that MDMA is distinguishable from cocaine, in that it’s regarded as a mid range drug rather than cocaine and heroin seem to be the worst class, MDMA then follows. (sic)
HIS HONOUR: Well cocaine and heroin are distinguished by the authority, it’s at the lower end of that scale in any event.
HASSELL: Yes. I’m sorry I just thought your Honour said at one stage that you were treating the substance in this matter as equivalent to cocaine.
HIS HONOUR: More like cocaine than heroin.

29 In light of the disapproval by the High Court – see Wong v R (2001) 207 CLR 584 – of the decision in R v Wong and Leung, his Honour’s apparent reliance on it constitutes legal error.

30 On the other hand his Honour’s reference to 339.2 grams being a “low level trafficable quantity” was also an error. That was an expression used in the formulation of the guidelines in R v Wong and Leung, judgment in which, coincidently, was given on the same day on which the Applicant was sentenced and it may be that this contributed to the error. But be that as it may, in the case of ecstasy the top of the trafficable range is 500 grams, and the passage quoted, which presumably found reflection in the sentence imposed, was unduly favourable to the Applicant.

31 His Honour’s statement that he had treated MDMA as approximately equivalent to cocaine is contrary to many statements in the authorities to the effect that heroin and cocaine stand at one end of the spectrum of illegal drugs, cannabis at the other end and amphetamines including 3-4 methylenedioxymethamphetamine and others are in the middle. Furthermore in R v Spillane [1999] NSWCCA CCA 280 Hidden J, with whom Newman and Simpson JJ concurred, said that it had not been open to the sentencing judge to characterise ecstasy as more dangerous than a middle range drug in the absence of appropriately qualified expert evidence and, partly on that account, allowed the appeal.

32 In R v Harvey [2000] NSWCCA 253 Sperling J, with whom Whealy J agreed, doubted that the distinction for sentencing purposes between heroin and cocaine on the one hand and mid-range drugs such as amphetamines on the other was, given the terms of the legislation, justified. However his Honour thought the distinction too well entrenched to be overruled except after full argument, perhaps in a guideline judgment.

33 In this connection, it may not be inappropriate to consider also remarks made, with the concurrence of Malcolm CJ and Kennedy J, by Ipp JA in Heryadi v R (1998) 19 WAR 383 at 390:-

“Any question of deterrence involves an assessment of the seriousness of the drugs the subject of the applicant’s offences. In Robertson v The Queen (1989) 44 A Crim R 224 this Court proceeded on the basis that MDMA or Ecstasy should be treated as in the middle range of drugs which attract a maximum sentence of 25 years’ imprisonment, being more serious than cannabis resin derivates, but less serious than LSD, cocaine or heroin (per Malcolm CJ at 230). In Darwell v The Queen (1997) 94 A Crim R 35, Malcolm CJ said (at 40):
“It is important to note that methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If not equated to heroin and cocaine, it is close enough to those drugs to be regarded as in the same category: R v Calder (unreported, District Court, WA, Hammond CJDC, 7 September 1995); Bellissimo v The Queen (1996) 84 A Crim R 465; Krakouer v The Queen (1996) 16 WAR 1 at 21, per Anderson J (with whom Rowland and Franklyn JJ agreed) and Calder v The Queen (unreported, Court of Criminal Appeal, WA, Full Court, Library No 960534, 11 September 1996), per Malcolm CJ.
In Bellissimo in a passage cited in my judgment in Calder (with which Franklyn and Owen JJ agreed) Anderson J said:
‘The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the main objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused widespread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent.’
While this case is concerned with MDMA or Ecstasy and not methylamphetamine, what Anderson J said has application to amphetamines generally and Ecstasy in particular. In my opinion, it may now be appropriate to reconsider the classification of MDMA or Ecstasy in the light of additional evidence regarding its deleterious effects. In the meantime, there is every justification for “firming up” on the sentences to be imposed beyond the sentence which was imposed in the present case.”

34 An approach different from that taken in the two New South Wales cases to which I have referred is also to be seen in Amran Efendi v R [2001] NSWCCA 391 where Heydon JA, with whom Wood CJ at CL and Carruthers AJ agreed said:-

“It is certainly common to describe ecstasy as a mid-range drug. But it does not follow that the importation of ecstasy is less serious than the importation of cocaine. The proposition that the importation of ecstasy is less serious than the importation of cocaine is inconsistent with R v Schaal (unreported, Supreme Court of New South Wales, Wood J, 8 September 1989) a case frequently referred to without disapproval by this Court. …
Cocaine is a drug which can cause very great damage to its users. It seems that even in 1989 that was perceived to be the case for ecstasy also. Since 1989 nothing has happened to change that position.
The proposition that ecstasy importation is less serious than cocaine importation, at least in the eyes of the Commonwealth Parliament, is also inconsistent with the fact that the maximum penalty of life imprisonment for importing commercial quantities is the same as the maximum penalty for importing commercial quantities of cocaine (and heroin).
Accordingly the guidelines in R v Wong & Leung should not be discounted in considering the appropriate sentence for ecstasy importation.”

35 In R v Bimahendali (1999) 109 A Crim R 355 at 362 Wood CJ at CL with whom Sully and Simpson JJ agreed said:-

“Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ.”

36 Furthermore, it was said long ago that:-

“In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug” - R v Peel (1971) 1 NSWLR 247 at 262.

37 The way in which the Customs Act deals with the subject topic is to make it an offence for a person to, without reasonable excuse, have possession of, or carry out certain actions in relation to, prohibited imports that are narcotic goods – s233B. Section 4 defines Narcotic Goods as goods that consist of a narcotic substance and that term is defined to mean, inter alia, a substance or thing described in the first column of Schedule VI to the Act. That schedule includes 2 further columns, one headed ‘Trafficable quantity” and the other “Commercial quantity.” For each substance listed, there is a weight stated in the “Trafficable quantity” column but only some of the substances have weights stated in the third column.

38 Section 235 prescribes the maximum penalties to which a person who offends against s233B is liable. Subject to some qualifications which I can presently ignore, s235 provides that where the quantity involved in an offence is not less than a commercial quantity, the offender is liable to imprisonment for life and a fine not exceeding $750,000, where the quantity involved in an offence is not less than a trafficable quantity, the offender is liable to imprisonment for 25 years and a fine not exceeding $500,000, and in any other case imprisonment for 2 years and a fine not exceeding $250,000.

39 In Schedule VI are listed something over 120 substances. The quantities in the “Trafficable quantity” column range between 0.002 grams for Lysergic Acid and Lysergide and 25 grams for Prosperidine, save and except that the weight of cannabis specified is 100 grams. There are only about 20 entries in the commercial quantity column and these vary between 0.002 kilograms in the case of Lysergic Acid and Lysergide and 20 kilograms in the case of Opium, except again there is a higher weight stated for cannabis and, in this case cannabis resin. The weights specified for these 2 last mentioned substances are, respectively, 100 and 50 kilograms.

40 Common experience would suggest that there would have been a number of factors taken into account in the decision as to the weight(s) to be specified for the substances listed. Both potency and the potential of each drug to do harm are likely to have been included. It is not unlikely that there will have been some expert opinion considered in the determination of the substances and quantities specified. But whatever the reasons, the terms of the legislation to which I have referred amount to a clear statement as to the seriousness which Parliament attributes to possession of, or dealing with, not only the substances listed, but also particular quantities of those substances.

41 To take a few of the substances by way of example, Schedule VI specifies as the minimum trafficable and commercial quantities the following:-

Drug Trafficable Commercial
Cannabis 100 grams 100 kilograms
Cocaine 2 grams 2 kilograms
Heroin 2 grams 1.5 kilograms
Lysergic Acid 0.002 grams 0.002 kilograms
MDMA 0.5 grams 0.5 kilograms

42 In the face of this sort of detail it seems to me impossible, consistently with ordinary principles of statutory construction, for the Courts to say simply that heroin or cocaine are worse, or dealing in them more heinous, than dealing in MDMA. Quantities have to be taken into account and, by providing the same penalties for dealing in the respective trafficable quantities of each, Parliament has indicated that it regards dealing in, for example, 2 grams of cocaine, 2 grams of heroin, 0.002 grams of Lysergic Acid, and 0.5 grams of MDMA as seriously as one another. On a weight for weight basis, the importation of MDMA is more to be discouraged than importation of either cocaine or heroin. Similarly, dealing in 1.6 kilograms of heroin, is more serious than dealing in a similar quantity of cocaine. The grouping of offences which occurred in R v Wong and Leung is a recognition of that fact.

43 While the situation may well be different if the statutory provisions took a different form, given the particularity of quantities which place a drug in one or other of categories for which different penalties are provided, it seems to me that the seriousness of an offence relating to a particular drug is to be judged primarily by the statutory provisions relating to it rather than by some impression, whether or not based on evidence in the particular or other cases, of how deleterious that drug is in comparison with others. Thus the seriousness of an offence relating to MDMA should be determined by reference to the statutory provisions relating to it, rather than by some comparison with heroin or cocaine.

44 I appreciate that, in so stating the matter, I have probably gone where Sperling J feared to tread and my approach is at odds with R v Spillane and other, and I accept numerous, cases where the position of the drug in the range of harm-causing has been regarded as of substantial significance. However, I have indicated the reasoning which, I believe, compels the conclusion at which I have arrived.

45 Nothing I have said is intended to suggest that the harmfulness of particular drugs as known to the courts through evidence or matters of which the Court may take judicial notice is not a relevant consideration just as, for example, an alteration in the frequency of offences of a particular type is. In that connection, statements as to where in the spectrum of illegal drugs, a particular drug falls, based no doubt on substantial judicial experience as to the impact of drugs falling within one category or another, have the potential to assist the sentencing process. Any departure from accepted wisdom in this regard may well be an indication of error and inspire a careful look at any sentence which follows. However, with respect to the remarks of Hidden J in R v Spillane, such statements are not propositions of law, departure from which, of itself, constitutes error. A fortiori is this so if the judicial characterisation differs from the clear implication to be found in the particular statutory provisions under which a charge is preferred.

46 Furthermore, such considerations are necessarily subsidiary to the terms of the relevant statute.

47 The principal difficulty I have with his Honour’s remark that he had “treated MDMA as approximately equivalent to cocaine” is in understanding what his Honour meant. While, as I have acknowledged, there are numerous statements in the cases to the effect that MDMA is a middle range drug and not as offensive as cocaine, the provisions of the Customs Act referring to cocaine and MDMA to which I have referred above, indicate that, weight for weight, it is more offensive. Even if it be inferred that his Honour’s remark was made, in the context of the authorities to which I have referred, wrongly, the question also arises whether his Honour gave to the nature of the drug the significance that the statute demanded. Certainly, as I have pointed out, he did not do so when referring to the weight of the drug as a “low level trafficable quantity”. However, in light of the conclusion at which I have arrived on other issues in the case, I do not need to finally determine whether his Honour’s comparison with cocaine was an error of any significance to the result.

48 In support of the second ground, viz. “that an analysis of similar cases demonstrates the sentence is outside the appropriate range”, reference was made to the decisions in Benais (unreported, CCA, 26 July 1999), Bushell (unreported, CCA, 7 August 1998) and Spillane (unreported, CCA, 280). Appreciably more were reviewed by me in R v Bourel (unreported, CCA, 11 December 1998) and, more recently, in R v Schofield [2003] NSWCCA 3. It is unnecessary for me to repeat such an exercise here although it is worth repeating that the infinite variation of facts and degree which fall for consideration in sentencing and the exercise of the discretionary judgment which is involved make comparison with anything but a large number of cases, and commonly even then, generally unprofitable.

49 However it was submitted on behalf of the Applicant that the sentence imposed in this case exceeded any other that could be found for an offender similarly situated – a courier of a trafficable quantity who had pleaded guilty. The table prepared by me in R v Schofield supports this contention but the question arises, so what? Once it is accepted that not all sentences are of the same length, one or more offenders in any group must receive the longest sentence.

50 In that regard there are some remarks of Grove J in an ex tempore judgment in R v Hayes [2001] NSWCCA 410 at [14-15] that are apposite:-

“… there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission. …
The upper limit of sentence is in fact the maximum set by Parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offender, then persistent selection of sentences for others within that range will inevitably reduce the upper figure.”

51 Howie J agreed with Grove J. In R v Hofer [2001] NSWCCA 544 so did Wood CJ at CL and Sperling J. With the qualification that words along the lines “effective available range” should be substituted for “upper figure”, so do I. The sooner the misconception disappears, the better.

52 Sentencing is not an exact science and the analysis of cases I carried out in R v Schofield, which included consideration of the cases to which the Court was referred to during the course of this appeal, indicates that the sentence imposed in this case was not manifestly excessive or, in the words of the appeal, “outside the appropriate range”. In R v Benais the offender, who was regarded as a courier, had pleaded guilty and was sentenced to imprisonment for 6 years with a non-parole period of 3 years. However the quantity imported by Benais was only 61 grams, far less than that for which the Applicant was responsible. In R v Bushell, where the quantity imported was 332 grams, the offender had pleaded not guilty but the sentence of 7 years with a non-parole period of 4 years reflected 6 months discount for assistance and an unspecified discount because of health problems.

53 In R v Spillane, where the offender pleaded guilty, the sentence of 6 years with a non-parole period of 3 years and 6 months was also after some discount for assistance. It must be recognised that the quantity Spillane imported was 447 grams but, on the other hand, he was a chronic alcoholic and well affected by alcohol at the time of his apprehension at the airport.

54 I have been content in the foregoing to proceed on the assumption that the Applicant was, as submitted, a courier. However, Judge Kirkham did not so characterise him. His Honour found, as I have said, that there was reasonable doubt whether the Applicant was a principal, but his Honour did not go on to find his involvement as low as that of a courier. And, as I have said, the Applicant himself said that he proposed to sell the drugs. In that situation the Applicant fell to be sentenced simply as one who had offended against the statutory proscription of importing – see R v Olbrich (1999) 199 CLR 270. His situation might also be compared with that of the offender in R v Schmakowski [2001] NSWCCA 395. Schmakowski was apprehended at the airport in possession of 410 grams pure of ecstasy. He participated for 3 days in an unsuccessful attempt by the authorities to effect a controlled delivery. He pleaded guilty. He was sentenced to imprisonment for 8 years including a non-parole period of 4 years and 9 months. Wood CJ at CL, with the concurrence of the other members of the Court, described the sentence as “heavy” but not outside the legitimate exercise of a sentencing discretion.

55 S6 of the Criminal Appeal Act provides that, on an appeal against sentence, “if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal”. Although I have accepted that there were at least 2 errors in the course of the sentencing of the Applicant – errors operating in different directions, I am not persuaded that some sentence other than that imposed by Kirkham J should have been passed. Accordingly while, given its length, I would grant leave to appeal against the sentence imposed on the Applicant, I would dismiss the appeal.

56 BELL J: I agree with Hulme J.

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Last Modified: 03/21/2003