R v NAI 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 COURT District Court JURISDICTION : LOWER COURT 99/11/0550 FILE NUMBER(S) : LOWER COURT Kirkham DCJ JUDICIAL OFFICER :

- 20 - IN THE COURT OF CRIMINAL APPEAL 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.