Reported Decision : [2000] 113 A Crim R 434 New South Wales Court of Criminal Appeal CITATION : Regina v Harvey [2000] NSWCCA 253 FILE NUMBER(S) : CCA 60360/99 HEARING DATE(S) : 7 July 2000 JUDGMENT DATE : 13 July 2000 PARTIES : Regina v Arthur Frank Harvey JUDGMENT OF : Fitzgerald JA at 1; Sperling J at 7; Whealy J at 31 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0009 LOWER COURT JUDICIAL Solomon DCJ OFFICER : M D Austin (Appellant) COUNSEL : W G Roser (Crown) Legal Aid Commission of NSW (Appellant) SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) CATCHWORDS : Criminal law - attempt to obtain possession of prohibited import (amphetamine) - whether high-range/mid-range drug a relevant distinction - applicability of Wong and Leung [1999] NSWCCA 420 to mid-range drug importation offences - whether lesser penalty for contempt - whether sentence manifestly excessive. LEGISLATION CITED : Customs Act 1901 (Cth); Crimes Act 1914 (Cth). CASES CITED: R v Kovacs [2000] NSWCCA 74; R v Wong and Leung [1999] NSWCCA 420; R v Bimahendali [1999] NSWCCA 409; R v Lam (1991) ACrimR 118; R v Ferris-Esis (1991) ACrimR 231; R v Lawless (Unreported) NSWCCA 24 June 1994; R v Bigic [2000] NSWCCA 9; R v Benais [1999] NSWCCA 236. DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL CCA60360/99 FITZGERALD JA SPERLING J WHEALY J Thursday, 12 July 2000 REGINA v Arthur Frank HARVEY JUDGMENT 1 FITZGERALD JA: The circumstances giving rise to this proceeding and the issues raised are discussed in the reasons for judgment of Sperling J. 2 I agree with his Honour that, although not a bare courier, the applicant was correctly sentenced on the basis that his criminality was broadly similar to that of a courier. The drug of which he had possession, amphetamine, has been classified as a "mid-range" drug in contrast to "high-range" drugs such as heroin. As a result, the guidelines established by Wong, Leung and Law (1999) NSWCCA 420. are not directly applicable. 3 Nonetheless, the applicant argued that the sentence which he received can be seen to be excessive by reference to those guidelines. I agree with Sperling J that that submission, which is detailed in his Honour's judgment, was based on a misunderstanding of the decision of this Court in Wong, Leung and Law . (1999) NSWCCA 420. 4 I also agree with Sperling J that, for the reasons which he has given, the applicant's submissions that the sentencing judge failed to apply s 16G of the Crimes Act 1914 (Cwth) and that the applicant's sentence failed to take account of the fact that he was found guilty of an attempt to obtain possession, not possession, should be rejected. 5 In my opinion, there is no disconformity between the sentence imposed on the applicant and the guidelines established by Wong, Leung and Law (1999) NSWCCA 420. or the pattern of sentencing established by the other cases relating to mid-range drugs to which the Court's attention was directed. 6 I agree with the orders proposed by Sperling J. 7 SPERLING JA : On 22 April 1999, at a trial in the District Court, the applicant was found guilty of the following offence: That on 5 November 1997 he did without reasonable excuse attempt to obtain possession of prohibited imports consisting of a quantity of amphetamine being not less than the trafficable quantity applicable to amphetamine which had been imported into Australia. 8 The offence is prescribed by s 233B(1)(c) of the Customs Act 1901 (Cth). The maximum penalty for the offence is a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years or both: s 235(2)(d)(i). 9 The trafficable quantity for amphetamine is 2gm. The amphetamine of which the applicant attempted to obtain possession weighed 403 grams, 51.3gm pure (being the relevant weight). There were 1508 tablets. The consignment had a street value of about $42,000. 10 On 11 June 1999, the applicant was sentenced to a term of imprisonment of five years with a non parole period of two years and thirty-three weeks. 11 The facts are as follows. On 30 October 1997, a parcel was intercepted at Melbourne airport. It was found to contain amphetamine tablets in plastic bags. Officers of the Australian Federal Police substituted iron and calcium tablets, placed fluorescent powder on the substituted packets and placed a listening device in the packet. On 5 November 1997, a police officer, masquerading as an Australia Post employee, delivered the package to the applicant. On the same date, the police raided the premises. The parcel had been opened. There were yellow spots on the accused hands from the fluorescent powder. He was arrested. 12 The sentencing judge found that the applicant's role was to receive the amphetamine and to hold it for the person or persons who had arranged the importation. 13 The crown submits that this finding placed the applicant in the role of a middle-man in the hierarchical structure of the importation. I disagree. The role of receiving and holding for others involved no more responsibility, in this case, than that of a bare courier. 14 The crown submits that the applicant's role was analogous to that of the applicant in R v Kovacs . [2000] NSWCCA 74. In Kovacs , the applicant did have a similar role to that of the present applicant. Simpson J (with whom the other members of the court agreed) said that it was not appropriate to characterise the applicant as a courier, his role being to take possession of the drug for the purpose of disseminating it into the community. However, because it was not possible to determine the applicant's role, other than that it was not that of a courier, he could not, it was said, be treated as having a higher level of responsibility. The same must said of this case. The applicant was merely to receive the amphetamine and hold it for collection by some other person or persons. That involved no more responsibility than that of a bare courier. In neither case does the offender play a part in the planning or organisation of the enterprise. That is the reason, in both cases for categorisation at the lowest level of responsibility in the hierarchy of the criminal enterprise. 15 In R v Wong and Leung [1999] NSWCCA 420. this Court laid down guidelines for sentencing couriers and other persons low in the hierarchy of an organisation for offences involving the importation of heroin and cocaine. A guideline range of five to seven years was set for head sentences for offences involving a "low level" trafficable quantity (2 to 200gm). 16 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] NSWCCA 409, [16]. 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: Bimahendali . [1999] NSWCCA 409, [21]. 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 . A full argument on the point was not heard in the present proceedings. 17 Accordingly, I will, for the purposes of the present case, recognise amphetamine as a mid-range drug, attracting less criminal responsibility than for the same and cognate offences involving heroin or cocaine. 18 The applicant argues, first, that the sentencing judge failed to apply s16G of the Crimes Act 1914 (Cth) which requires the court to adjust the head sentences where the sentences will be served in a state where remissions are not available. New South Wales is such a state. The settled reduction is one-third. Alternatively, it was said the sentencing judge failed to disclose what reduction he had made pursuant to s16G and what considerations he had brought to bear. 19 The sentencing judge said he took s16G into account. So it was not overlooked. The sentencing judge is a very experienced judge. I do not doubt that the head sentence he fixed was after a reduction of one-third from a higher starting point. The exercise is so commonplace and the approach so well settled that there was no need for him to spell out what he did in this regard and why. 20 Secondly, it was argued that the sentence was excessive having regard to Wong and Leung . [1999] NSWCCA 420. It was submitted the guideline sentences set in Wong and Leung were before any s 16G reduction and, accordingly, that the guideline range for a "low level" trafficable quantity of five to seven years was equivalent to a head sentence range of approximately three and a half to four and a half years after reduction pursuant to s 16G. That, it was argued, put the head sentence of five years in the present case at the top or above the relevant guideline range. 21 The submission involves an incorrect reading of Wong and Leung . The guideline sentencing ranges in that case were after reduction pursuant to s 16G. That is clear from the language of the joint judgment in the promulgation of the guidelines, in the discussion which precedes the determination of the guidelines, and from the sentences in the earlier cases which were taken into account and are reflected in the guidelines. 22 Thirdly, it was submitted that a sentence for the offence of attempting to obtain possession should be lower than for the offence of having possession, and that the sentencing judge failed to implement that approach. 23 Section 233B(1)(c) creates both the offence of obtaining possession and the offence of attempting to do so. There is no warrant for making a distinction between the two offences in the present case. The legislation has made no such distinction in fixing the maximum penalties for the two offences. Whether there are cases where such a distinction should be made is unnecessary to decide. In the present case, the applicant's activities and intent and the outcome of the enterprise would have been no different if the police had left the drugs in place and had raided the premises after the parcel had been opened as and when they did. There was, therefore, no less criminal responsibility for the attempt in this case than there would have been if the applicant had actually obtained possession. 24 What was said in R v Lam , (1991) ACrimR 118, 119-120. in R v Ferrer-Esis (1991) 55 ACrimR 231, 239. and R v Lawless Unreported, NSWCCA, 24 June 1994. concerning responsibility for the offence of possession relative to the offence of importing (also a s 223B(1) offence) supports my approach. 25 No specific error is, therefore, demonstrated in the sentencing process. It is, nonetheless, argued that the sentence was manifestly excessive. I disagree for the reasons which follow. 26 Recognising the entrenched distinction between high and mid-range drugs, to which I have referred, the guidelines in Wong and Leung , which relate to the high-range drugs, heroin and cocaine, are nonetheless applicable, with caution: R v Bigic . [2000] NSWCCA 9. 27 The head sentence in the present case was at the very bottom of the guideline range for a corresponding offence involving a high-level drug. It was also somewhat less than sentences upheld in this court in materially similar cases: R v Benais [1999] NSWCCA 236. (six years); Bimahendali [1999] NSWCCA 409, [21]. (six years). 28 There were subjective considerations in mitigation in this case, which the sentencing judge recognised. On the other hand, there was a history of prior offences, including drug offences. 29 In these circumstances, the sentence was concordant with the proper application of sentencing principles. Indeed, it was not a particularly heavy sentence for the offence, having regard to the objective facts of the case and subjective considerations. 30 I propose that leave to appeal against sentence be granted and that the appeal be dismissed. 31 WHEALY J: I agree with the reasons of Sperling J and the orders that he proposes. -oOo- 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.