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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading R v Poon
Sign in free to access the full text
Details
AGLC
R v Poon [2003] NSWCCA 42
Case
[2003] NSWCCA 42
Decision Date
CaseChat Overview and Summary
In the case of Regina v Al Nai Wan Nai Poon, the appellant, Al Nai Wan Nai Poon, was convicted of importing a trafficable quantity of narcotic goods, specifically 3-4 methylenedioxymethamphetamine (MDMA) or ecstasy, into Australia. The case was heard in the New South Wales Court of Criminal Appeal, with the appeal being dismissed. The primary legal issues in this case were whether the District Court judge, Kirkham DCJ, erred in finding that MDMA is equivalent to cocaine, and whether the sentence imposed was outside the appropriate range.
The court held that Kirkham DCJ's remark that "MDMA is equivalent to cocaine" was a passing observation carrying little significance, and the sentence imposed was within his discretion. The court found that the seriousness of an offence involving a particular drug should be determined by reference to the statutory provisions relating to it, rather than by comparing it with other drugs. The court noted that, while the use of mid-range drugs such as MDMA can cause great harm to the community, it was not appropriate to compare sentences imposed for one offence with another, as the circumstances of each offence and the personal circumstances of the offenders vary significantly.
Regarding the second ground of appeal, the court found that the sentence imposed was not manifestly excessive or outside the appropriate range, even when considering the infinite variation of facts and degrees that fall for consideration in sentencing. The court dismissed the appeal and upheld the sentence imposed by Kirkham DCJ.