New South Wales Court of Criminal Appeal CITATION : R v Spillane [1999] NSWCCA 280 FILE NUMBER(S) : CCA 60830 of 1998 HEARING DATE(S) : 09/09/99 JUDGMENT DATE : 16 September 1999 PARTIES : Michael Thomas Spillane (applicant) Regina (respondent) JUDGMENT OF : Newman J at 1; Simpson J at 2; Hidden J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Mahoney DCJ COUNSEL : C B Craigie (applicant) F Veltro (respondent) SOLICITORS : Legal Aid Commission (applicant) Commonwealth Director of Public Prosecutions (respondent) CATCHWORDS : Sentence - importation of trafficable quantity of ecstasy - courier - process of arriving at sentence - evaluation of assistance to police - assessment of ecstasy as middle range drug - range of sentence for offences of this kind. ACTS CITED : Crimes Act (Cth) R v Bowers (1997) 97 ACrim R 461 R v Doan (CCA unreported 27 September 1996) R v Bourel (CCA unreported 11 December 1998) R v Hauser (CCA unreported 11 December 1997) CASES CITED: R v Budiman (1998) 102 ACrim R 411 R v Dinic (1997) 149 ALR 448 R v Bushell (CCA unreported 7 August 1998) R v Dizel (CCA unreported 23 August 1996) R v Gallagher (1991) 23 NSWLR 220. DECISION : Appeal allowed; sentence reduced. IN THE COURT OF CRIMINAL APPEAL 60830/98 NEWMAN J SIMPSON J HIDDEN J THURSDAY, 16 SEPTEMBER 1999 REGINA v Michael Thomas SPILLANE JUDGMENT 1 NEWMAN J: I have had the advantage of reading the reasons and orders proposed by Hidden J and I agree with them. IN THE COURT OF CRIMINAL APPEAL 60830/98 NEWMAN J SIMPSON J HIDDEN J 16 September 1999 REGINA v Michael Thomas SPILLANE Judgment 2 SIMPSON J : I agree with the orders proposed by Justice Hidden and with his reasons therefor. * * * * * * * * * * IN THE COURT OF CRIMINAL APPEAL 60830/98 NEWMAN J SIMPSON J HIDDEN J Thursday, 16 September 1999 Regina v Michael Thomas Spillane Reasons for judgment 3 HIDDEN J: The applicant, Michael Thomas Spillane, seeks leave to appeal against a sentence imposed upon him at the Sydney District Court upon a charge of importing a trafficable quantity of ecstasy. He was sentenced to imprisonment for seven years to date from the date of his arrest, 21 June 1998, with a non-parole period of four years and eight months. Facts 4 The applicant is an Irish national, now 44 years of age, who had been living in London. On 21 June 1998 he arrived in this country on a Singapore Airlines flight, carrying a suitcase. The suitcase was searched by Customs officers, who found five packets of white tablets hidden inside a cushion. Later examination established that there were 5,686 tablets, with a gross weight of 1,706gm and an MDMA (ecstasy) content of 447.3gm. That quantity is high in the trafficable range, the commercial quantity being 500gm. 5 When spoken to by Customs officers the applicant appeared to be well affected by alcohol. To the Customs officers he denied that the suitcase was his, as he did to federal police officers who came to the airport. A label on the suitcase bore the name of a Sydney hotel and that same name was written on a piece of paper found in his personal effects. Inquiries at the hotel revealed that there had been phone calls for the applicant there. He denied any knowledge of the hotel but agreed to accompany police there to see if someone came to pick up the suitcase. 6 At the hotel the applicant booked into a room, where he and the police officers waited for some hours. Several phone calls were received from persons who have not been identified. At one stage he went to the foyer of the hotel, under police observation, in the hope that an approach might be made to him. No-one attended to take the suitcase and no arrests were made. 7 The applicant later took part in a video-taped interview with police, in which he denied involvement in the offence. Such explanation as he did proffer for coming to this country was internally inconsistent and bordering on the absurd. He admitted that the suitcase was his, but claimed that it had been stolen from his flat in London prior to his departure. At one point, he said that he intended to fly to Belgium to obtain tobacco but, because he was drunk, he mistakenly boarded a flight to Australia. However, earlier in the interview he said that he had been sent here to pick up bottles of liquor and return them to the United Kingdom. He declined to identify anyone else involved in the enterprise, intimating that he feared for his life if he did so. 8 It seems that the applicant was affected by liquor throughout this whole period. The learned sentencing judge concluded that, even during the interview, he was still in an "alcoholically befuddled state". Subjective case 9 The applicant has a criminal record in the United Kingdom, primarily for offences of dishonesty, but has no prior conviction for a drug offence. He is a divorced man with two children, both of whom are now adults. From information provided to an officer of the Probation and Parole Service, which was unable to be verified, he appeared to have had a disturbed background. He told the probation officer that he had been in employment of various kinds, including a period in the British Army, but that he was receiving an invalid pension because of an injury sustained during army service. 10 What is clear, and is confirmed by the report of a London doctor, is that he has been a chronic alcoholic. Since being in custody he has been undergoing counselling with an alcohol and other drug worker, whose report speaks favourably of his response and his commitment to remain alcohol free on his release. A letter from a prison chaplain testifies to his remorse, his concern about his family and his regular church attendance. Finally, the certificate of the manager of Centre Services and Employment describes him as an excellent worker and a model inmate. The Sentence 11 The learned sentencing judge dealt with the applicant on the basis that he was a courier. He arrived at the head sentence of 7 years by reference to the sentence of 8½ years upheld by this Court in R v Bowers (1997) 97 ACrim R 461. That case involved a larger quantity of ecstasy and his Honour made a rough calculation of the proportion by which that quantity exceeded the quantity in the present case. He reduced the eight and a half year term accordingly, arriving at a period of seven years and three months. He reduced that period by a further three months to afford some recognition of the applicant's cooperation with the police in attending the hotel, although he considered that assistance to be "minimal". 12 His Honour made his own assessment of the harmful potential of ecstasy, acknowledging that he did not have "any hard statistical data" but having regard to "anecdotal evidence" and to "general media reportage in coming to the conclusion that ecstasy can and does kill some of those at whom it is targeted". He referred to the observation of Hunt CJ at CL in Bowers (at 465) that previous decisions of this Court classifying ecstasy as a middle range drug were arrived at in the absence of any pharmacological or toxicological investigation, and that the time had come when that investigation ought to be undertaken. He continued: Since his Honour made that comment in 1997, media coverage would indicate that ecstasy is significantly more dangerous a substance than might otherwise have been thought at earlier times to be the case. The application 13 In this Court, three challenges have been made to the manner in which his Honour approached his sentencing task. In my view, all of these challenges have been made good. 14 Firstly, I consider that his Honour fell into error in what counsel for the applicant described as his "arithmetical" approach to the determination of the head sentence by reference to the sentence in Bowers. That case involved a commercial quantity of ecstasy, attracting a higher maximum penalty. In so saying, I recognise that there may well be some overlap in sentence for offences involving quantities towards the top of the trafficable range and towards the bottom of the commercial range. In any event, sentencing for offences of this kind must not be approached on the basis of "some precise mathematical relationship between the sentence and the amount of the drugs involved": R v Doan (CCA unreported, 27 September 1996) per Hunt CJ at CL at p5. 15 True it is that his Honour also had regard to other decisions of this Court to which he was referred by the prosecution, to the requirements of s16A of the Crimes Act (Cth) and to the fundamental common law principles of sentencing. Nevertheless, it appears that the sentence of 7 years was arrived at primarily by the impermissible process which I have outlined. 16 Secondly, I am satisfied that his Honour failed to give appropriate weight to the applicant's assistance to the police, limited as it was. In his remarks on sentence, after noting that the applicant was unwilling to nominate others involved in the offence, his Honour continued: So that it is only a limited amount of kudos that he is entitled to receive from having answered the telephone a couple of times and gone down to the foyer at the Top of the Town Hotel in Sydney whilst being watched by the Federal police. Of course, the easiest thing in the world if you went down into the foyer, would be with a nod or a frown not seen by the overlooking police officers but seen by the person coming into a foyer, would be to tip them off. 17 There was no evidence to suggest that the applicant might have attempted to warn off any accomplice who approached him, and the observation in the last sentence of that passage was entirely uncalled for. No doubt, his agreement to accompany the police to the hotel was driven by the circumstances in which he found himself and, as I have said, he stubbornly maintained his innocence when he was later interviewed. Nevertheless, he was entitled to be sentenced on the basis that his agreement to assist the police was genuine, and it is in the public interest that cooperation with the police in furtherance of their investigation of a crime be encouraged by the extension of leniency. Of course, subject to statutory requirements such as s21E of the Crimes Act (Cth), it is not necessary to specify a period by which a sentence has been reduced on that account: R v Gallagher (1991) 23 NSWLR 220. Here, however, his Honour did so. In my view, a reduction of three months was inadequate to reflect the measure of leniency to which the applicant was entitled. 18 Thirdly, it 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. The Crown prosecutor in this Court did not suggest that it was. However, he submitted that that is not what his Honour intended to convey by those remarks. Rather, he argued, his Honour was simply expressing his sympathy with the observation of Hunt CJ at CL in Bowers that the assessment of the harmful potential of ecstasy should not be assumed but should be informed by scientific research. I do not agree. From the passage of the remarks on sentence referred to in par 12 of these reasons it is clear that his Honour was arriving at his own conclusion about the matter and, in so doing, departing from existing authority. 19 For these reasons, I am satisfied that his Honour erred in his approach to the matter and it falls to this Court to determine the sentence, in the exercise of its own discretion. Re-sentence 20 The Crown prosecutor submitted that, notwithstanding any error in the sentencing process which this Court might find, the sentence of imprisonment for 7 years with a non-parole period of 4 years and 8 months was appropriate in all the circumstances of the case, and should not be disturbed. He referred to the schedule of more or less comparable cases set out in an appendix to the judgment of Hulme J in R v Bourel (CCA unreported, 11 December 1998). Included in that schedule are a number of cases of importing trafficable quantities of ecstasy, Bourel itself being such a case, and three cases of quantities in the low commercial range. Those to which I shall refer are decisions of this Court. 21 The three commercial cases are R v Hauser (unreported, 11 December 1997), R v Budiman (1998) 102 ACrim R 411 and R v Bowers (supra). In Hauser the Court considered a sentence of 6 years with a non-parole period of 3½ years, standing alone, to be appropriate, but reduced it through considerations of parity. In Budiman the Court affirmed a sentence of 8 years and 3 months with a non-parole period of 6 years and 3 months, and in Bowers a sentence of 8½ years with a non-parole period of 4½ years. 22 The cases involving trafficable quantities were Dinic (1997) 149 ALR 488, Bushell (unreported, 7 August 1998), and Dizel (unreported, 23 August 1996). In Dinic the Court declined to interfere with a sentence of 5 years with a non-parole period of 3 years. Mr Dinic appears to have been a lucky man, particularly as his involvement was greater than that of a courier, and Newman J observed, "…it is difficult to see how his Honour could have passed a more lenient sentence…". In Bushell the sentence confirmed was 7 years with a non-parole period of 4 years. In Dizel the Court upheld a sentence of 10 years with a non-parole period of 7½ years, but that was an exceptional case as the applicant had a bad record for drug offences, including a conviction in Japan for importing a substantial quantity of cocaine. In Bourel itself the Court affirmed a sentence of 7 years with a non-parole period of 4½ years, although that applicant was also more than a mere courier. 23 In so far as a pattern can be discerned from those cases, it does appear that the head sentence and non-parole period in the present case are well towards the top of the range for offences of this kind. That is certainly true if one examines only the cases involving trafficable quantities. It is appropriate to have regard also to cases involving low commercial quantities, although the fact that that offence carries a higher maximum penalty must not be overlooked. In all the circumstances, and acknowledging that the quantity of ecstasy in the present case is substantial, I consider that the applicant's criminality called for a sentence significantly less than that imposed. Clearly, there were others involved in this importation. If it were the subject of any measure of planning or ingenuity, the applicant's behaviour upon his arrival in this country demonstrates that none of it could be attributed to him. 24 Having regard to the level of the applicant's involvement, and the subjective material, I consider that the appropriate sentence is imprisonment for 6 years with a non-parole period of 3½ years. The sentence should date from 21 June 1998. I would propose that leave to appeal be granted, the appeal allowed, the sentence quashed and the applicant re-sentenced accordingly. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.