Adams v The Queen [2008] HCA 15

HIGH COURT OF AUSTRALIA

GLEESON CJ,

HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

STEVEN ADAMS APPELLANT

AND

THE QUEEN RESPONDENT

Adams v The Queen [2008] HCA 15

23 April 2008

M121/2007

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

L C Carter with C B Boyce for the appellant (instructed by Leanne Warren & Associates)

W J Abraham QC with R R Davis for the respondent (instructed by Director of Public Prosecutions (Cth))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Adams v The Queen

Criminal law – Sentencing – Federal offences – Appellant convicted of possessing a "commercial quantity" of the narcotic MDMA (ecstasy) – Customs Act 1901 (Cth) fixed the commercial quantities of certain narcotics and imposed maximum penalties that did not distinguish between the narcotics – Whether appellant should have been sentenced on the basis that MDMA was less harmful than heroin.

Practice and procedure – Appellant did not demonstrate factual assertion that MDMA was less harmful than heroin – Whether controversy "moot" or "academic".

Words and phrases – "commercial quantity", "moot", "trafficable quantity".

Customs Act 1901 (Cth), ss 233B, 235.

1. GLEESON CJ, HAYNE, CRENNAN AND KIEFEL JJ. Following a trial by jury in the County Court of Victoria, the appellant was convicted of possessing, on 9 January 2004, prohibited imports contrary to s 233B of the Customs Act 1901 (Cth) ("the Customs Act"). The prohibited imports in question were 19.927 kilograms of a mixture that contained 8.916 kilograms of MDMA, commonly known as ecstasy. The appellant, a United States citizen temporarily in Australia, had been charged following the interception by the authorities of containers shipped to Australia from overseas. 2. The Customs Act adopted (and the Criminal Code (Cth) as amended since the relevant time adopts) a quantity-based penalty regime, fixing "trafficable" and "commercial" quantities of certain drugs, distinguishing between those drugs in setting such trafficable and commercial quantities, but otherwise making no distinction between them in terms of maximum penalties. Under s 235 of the Customs Act, offences involving a trafficable quantity of narcotic goods carry a maximum penalty of imprisonment for 25 years and/or a fine not exceeding $500,000, and offences involving a commercial quantity of such goods carry a maximum penalty of imprisonment for life and/or a fine not exceeding $750,000[1]. For example, the trafficable quantity of cocaine was 2 grams; that of heroin was 2 grams; that of MDMA was 0.5 grams. The commercial quantity of cocaine was 2 kilograms; that of heroin was 1.5 kilograms; that of MDMA was 0.5 kilograms. 3. This legislative approach, which recognises the financial rewards available from dealing in illicit drugs, thus differentiates between various narcotic substances in designating the trafficable and commercial quantities, but applies the same penalty regime to the quantities so designated[2]. It may be contrasted with legislation in New Zealand[3] and Canada[4], which grades drugs according to a legislative perception of their harmfulness, and prescribes penalties based on harmfulness rather than quantities. (The Court was informed that in each of those jurisdictions MDMA falls within the most serious class of drugs.) 4. Because of the limited nature of the issue raised in this appeal, the circumstances of the importation in which the appellant was involved, and his personal background, are presently irrelevant. It is sufficient to say that, as appears from the above figures, the quantity of MDMA in the appellant's possession substantially exceeded the amount required for a commercial quantity. The appellant was sentenced to imprisonment for nine years from the date of sentence (having been in custody for 260 days), and was made eligible for parole after seven years. 5. The argument for the appellant is based on the second sentence of the following paragraph in the trial judge's remarks on sentence: