New South Wales Court of Criminal Appeal CITATION: Donnelly v Regina [2006] NSWCCA 212 HEARING DATE(S): 10/07/06 JUDGMENT DATE: 18 July 2006 JUDGMENT OF: Handley JA at 1; Hulme J at 2; Kirby J at 3 DECISION: (1) Leave to appeal granted; (2) Appeal dismissed. CATCHWORDS: Criminal Practice & Procedure - appeal on severity of sentence - claim imported drugs for personal use - MDMA - civil onus on accused - rejected by Judge - whether gave reasons or sufficient reasons. LEGISLATION CITED: Customs Act 1901 (Cth) PARTIES: Timothy Michael Donnelly (App) Regina (Resp) FILE NUMBER(S): CCA 2006/1192 COUNSEL: J L Glissan QC (App) Ms W J Abraham QC (Resp/Crown) SOLICITORS: Adams & Partners Lawyers (App) P Hill - DPP (Resp/Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0075 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 12/08/05 IN THE COURT OF CRIMINAL APPEAL 2006/1192 HANDLEY JA HULME J KIRBY J Tuesday 18 July 2006 Timothy Michael DONNELLY v REGINA Judgment 1 HANDLEY JA: I agree with Kirby J. 2 HULME J: I agree with Kirby J. 3 KIRBY J: This is an application for leave to appeal against sentence. Timothy Michael Donnelly (the applicant) returned to Australia from overseas at 7.30 am on 11 November 2004. He was a passenger on a British Airways flight from London via Singapore. Having cleared Customs, he went to a flat in Neutral Bay. 4 At approximately 2.50 pm on 13 November 2004, Mr Donnelly presented at the Emergency Department of the Royal North Shore Hospital. He complained of severe abdominal pain. He disclosed to medical staff that, before leaving London, he had swallowed a number of pellets made from plastic and ducting tape containing the drug ecstasy. He had already regurgitated a small number of the pellets. 5 An x-ray was undertaken and revealed a large number of foreign objects in the stomach and intestines. He was suffering from severe abdominal obstruction and required immediate surgery. 6 The police were notified. At 4.45 pm Mr Donnelly underwent a laparotomy. Sixty-five pellets were removed. The operation was witnessed by the police who took possession of the pellets. 7 Later the same evening, the police searched Mr Donnelly's flat at Neutral Bay. The person with whom Mr Donnelly shared the flat handed the police a further 12 pellets, being the pellets he had regurgitated the previous day. 8 Each pellet was later examined. There were 77 pellets in all, each weighing about 5 mgs. One pellet contained 4.7 grams of cocaine. The remaining 76 contained the drug methylenedioxymethamphetamine (MDMA or ecstasy) in powder form. 9 On Sunday 14 November 2004, the police spoke to Mr Donnelly at the hospital. He was informed that he was under arrest for the possession of prohibited imports. He was also formally cautioned. 10 On 17 November 2004, a bedside court was conducted. Once discharged from hospital, Mr Donnelly remained in custody. Pleas of guilty were entered in the Local Court on 2 February 2005. When the matter came before Nield DCJ on 22 April 2005, the charges were reformulated and can be summarised as follows: Count 1 : That on 11 November 2004, he was in possession of a prohibited import, contrary to s233B(1)(a)(vi) of the Customs Act 1901, namely ecstasy, in an amount not less than the trafficable quantity of that drug. Count 2 : Further, that on the same day and contrary to the same section, he was in possession of the prohibited import cocaine, in a quantity not less than the trafficable quantity. 11 The Commonwealth Act, unlike the State Act, is concerned with the quantity of pure drug imported. In each case the drugs had a high level of purity, namely: · Ecstasy: 278.69 grams pure MDMA (representing over 77% of the 362.3 grams imported). · Cocaine: 3.9 grams pure (representing 84.6% of the 4.7 grams imported). 12 A "trafficable quantity" of MDMA or ecstasy under the Customs Act is 0.5 grams and a "commercial quantity" is 500 grams. Accordingly, as noted by his Honour, the amount imported exceeded by many times the trafficable quantity and was over half of a commercial quantity. 13 In the case of cocaine, a "trafficable quantity" is 2 grams and a "commercial quantity" is 2 kilograms. The amount imported, therefore, was just over the trafficable quantity. Issues before the Sentencing Judge. 14 As mentioned, Mr Donnelly came before Judge Nield in the District Court on 22 April 2005 for sentence. He was represented by Mr Sutherland SC. In an opening address, counsel identified the issue. The penalty section under the Customs Act, s235(2)(d)(i), at that time fixed a maximum penalty in respect of each charge of a fine not exceeding $550,000 or imprisonment for a period not exceeding 25 years, or both. However, where the Court is satisfied (the onus being upon the offender) that the offence was not "for a purpose related to the sale of, or other commercial dealing in, the drugs", the maximum penalty for each offence was a fine not exceeding $2,200 or imprisonment for a period not exceeding 2 years, or both (s235(3) and s235(2)(e)) (since repealed). It was Mr Donnelly's case that the drugs were imported for his personal use. They were not imported with a view to sale. 15 The sentencing proceedings, which I will shortly describe, continued over a number of days. His Honour reserved his judgment. On 12 August 2005 he passed sentence. I will examine his reasons shortly. He expressed his conclusion in these terms: (ROS paras 29/30) "29. I am not satisfied that the offender imported the MDMA into Australia for his own personal use. On the contrary, the quantity of MDMA that he imported into Australia and the value, both wholesale value and street value, of the tablets that could be produced from that quantity of MDMA powder suggest, quite obviously, that he imported it into Australia to deal with it commercially. 30. However, on the other hand, as the quantity is small and the potential street value is small, I am satisfied that the offender imported the cocaine for his own use, to use his words 'for a bit of fun'." 16 His Honour therefore sentenced Mr Donnelly as follows: Count 1 : Imprisonment for 6 years 9 months commencing on 13 November 2004 expiring on 12 August 2011; with a non parole period of 4 years commencing on 13 November 2004 and expiring on 12 November 2008. Count 2 : A concurrent sentence of 11 months and 7 days. The Notice of Appeal. 17 The Notice of Appeal identified four grounds as follows: (a) That the sentencing judge failed to give any or any sufficient reasons for finding that he was not satisfied that the offender imported the MDMA into Australia for his own personal use; and (b) That the sentencing judge should have held that the maximum sentence applicable to each charge was a fine of $2,200 or imprisonment for a period not exceeding two years or both (Customs Act 1901 section 235). (c) That the sentence imposed exceeded the available statutory maximum. (d) In the alternative, that the sentence imposed was too severe. 18 Before dealing with the arguments, I should describe the evidence given during the sentencing proceedings. The Sentencing Proceedings. 19 When the sentencing proceedings began on 22 April 2005, the Crown tendered a number of documents. There was no issue concerning the circumstances of importation. The agreed facts included the following material as to the value of the drugs imported. In respect of cocaine, the following was said: (AB p13) "Based on a figure of between $200 and $300 per gram for impure cocaine, the street value of the cocaine seized from the Defendant is about $2,228 and $2,340." 20 As to the ecstasy, the agreed facts were in these terms: (AB p12/13) "Imported MDMA tablets normally have a purity of 30% to 50% and a weight of 0.2 to 0.3 of a gram. Using this range, an ecstasy tablet has from 0.06 to 0.15 of a gram of pure MDMA. The MDMA powder would produce between 3095 (0.3 gram) to 4643 (0.2 gram) tablets at 30% purity. The MDMA powder would produce between 1857 (03. gram) to 2786 (0.2 gram) tablets at 50% purity. In November 2004, the street value of MDMA tablets in NSW ranged from $30 to $60 with $50 being the more typical price. Based on these figures, the street value of the MDMA is between $92,850 and $232,150. Based on a figure of $20 per tablet for MDMA as a bulk price, the wholesale value of the MDMA is between $37,140 and $92,860." 21 The Crown also tendered a statement by Det Sgt Stipnieks, an officer in the Australian Federal Police experienced in drug matters. Sgt Stipnieks said that commercial importations of ecstasy in powder form were extremely rare (8.7.05: T2). Ecstasy was soluble. It could be ingested by snorting or in liquid form. When cross examined by counsel for Mr Donnelly, Sgt Stipnieks said this: (8.7.05: T3) "Q. There would need to be a refining and/or manufacturing process undertaken by somebody to turn it into the tablet form? A. No, it would only require a pill press. Q. It would require firstly somebody to cut it with an appropriate substance -- A. It could be cut down further from the imported seizure, yes. I agree with that." 22 The Crown also tendered a report of the Probation and Parole Service dated 21 April 2005. The report included a history of Mr Donnelly's involvement with drugs. Mr Donnelly, in his evidence, enlarged upon that history. His Honour, in his remarks, accepted that Mr Donnelly had, in the years preceding 11 November 2004, a significant involvement with drugs. His Honour said this: (ROS 2) "5. Whilst at the senior school at Newington College, he commenced to smoke cannabis and to use other prohibited drugs. Whilst at school, he was able to keep his use of prohibited drugs hidden and under control." 23 Having left school, the applicant worked for his father. His drug use increased. His Honour continued: (ROS 2/3) "7. Then, during 1996, he was driving a motor vehicle which was involved in a collision with a cliff face on the Sydney-Newcastle freeway, which collision resulted in the death of his girlfriend. A search of his car revealed that he was in possession of prohibited drugs and analysis of a sample of his blood revealed that he had been driving the car with MDMA, commonly called ecstasy, in his blood. He was charged with dangerous driving causing death and possession of prohibited drugs. He was dealt with for the offences of dangerous driving causing death and possession of prohibited drugs at the end of 1997. He was sentenced to imprisonment for one year six months, with a non-parole period of twelve months to be served by home detention, and a parole period of six months, for the offence of dangerous driving causing death and he was fined $1,000 for each of the two offences of possessing a prohibited drug." 24 Having completed his sentence, Mr Donnelly resumed the use of prohibited drugs, principally ecstasy. He said he used them "on a recreational basis" (22.4.05: T14). In 2001 he moved to London. He gave the following history to the Probation Officer concerning his drug use once in London: (AB p19) "Mr Donnelly reported that after moving to London in 2001 he began using ecstasy and cocaine heavily. After the death of his father, in mid 2003, his usage increased, particularly ecstasy usage. He claimed he was using round 1 gram of ecstasy daily." 25 After his father's death, Mr Donnelly received an inheritance of $100,000 and an annuity of $30,000. He travelled extensively. He had a Brazilian girlfriend and spent some time in South America and Europe, where he continued his use of drugs. He squandered much of his inheritance. The Probation Officer concluded her report in these terms: (AB p19) "Mr Donnelly has had a longstanding problem with abuse of illicit drugs; which appears to be a substantial factor in his motivation to commit the offences." 26 As mentioned, his Honour accepted that Mr Donnelly was a regular and heavy user of ecstasy before the offence (ROS para 28). The Applicant's Evidence. 27 The applicant's credibility was obviously fundamental if he hoped to persuade his Honour (on the balance of probabilities) that the drugs he imported were for his own use. Whilst he was a heavy drug user, the amount of ecstasy imported (362.3 grams) was very substantial. When first called to give evidence, the applicant sought to explain that amount by the following evidence: (22.4.05: T20) "Q. And did you continue your usage of ecstasy in London? A. Yes. Q. How much ecstasy would you take in a day? A. In powder form anywhere up to a gram. Q. What about in tablet form? A. I very rarely took tablets. Q. Now there's not a lot of powder form ecstasy seen in this country, how do you use it in powder form? A. You can snort it or eat it, mix it with drinks." 28 His evidence continued: (22.4.05: T22) "SUTHERLAND: Q. And so far as the ecstasy was concerned the quantity that you purchased I think in bulk terms is about 360-odd grams -- A. That's correct." 29 Mr Donnelly then said this: (22.4.05: T22/23) "Q. ... Did you propose to sell any of that ecstasy? A. No. Q. What did you propose to do with it? A. To use it. Q. And how long did you think, without using a slide rule and a calculator, but how long did you think it would last? A. I figured about a year." 30 The evidence that he used a gram a day, in the context of an importation of 362.3 grams and 365 days in a year, was an important aspect of Mr Donnelly's testimony. His evidence continued as follows: (22.4.05: T23) "SUTHERLAND: Q. How regularly were you using a gram a day? A. Almost every day of the week, it varied, on weekends I'd use more, some days I'd use less. Q. I appreciate this comes from your perception as opposed to an external perception but what effect on your day to day life did it have? A. Well it seemed normal at the time. Looking back on it with a clear head it had a pretty detrimental effect. Q. But how did you perceive it at the time? A. I felt pretty normal to be honest. Q. And for what period of time or what length in your life had you been using effectively a gram a day? A. Two or three years, two years." 31 During cross examination by the Crown, his Honour asked a number of questions, including the following: (22.4.05: T33) "HIS HONOUR: Q. Did you know the purity of the MDMA that you'd purchased? A. I'd tested it but I didn't know what the purity is mathematically. Q. It exceeds seventy per cent, you know that now? A. I do now yes. Q. And that's greater than the street percentage isn't it? A. I don't know what the street percentage is to be honest." 32 His Honour also asked the following questions: (22.4.05: T34) "HIS HONOUR: Q. What the Crown Prosecutor is asking you is that you know that MDMA is usually sold in tablet form? A. Yes sure. Q. And you know that tablets are made from powder? A. Yeah. Q. And the tablets that are made from powder have an admixture of MDMA and other things, you know that don't you? A. I've heard that happens yeah sure. Q. You know you could have cut the powder that you brought into Australia by fifty per cent, don't you? A. I never even considered it to be honest." 33 At the end of the examination, Mr Sutherland, counsel for Mr Donnelly, said this: (22.4.05: T38) "Your Honour if I can candidly say I was just a little concerned in relation to some of the questions from your Honour as to whether or not in the circumstances your Honour might be assisted by some pharmacological evidence which I don't have available today ..." 34 Mr Sutherland continued: (T39) "... I must say my perception sitting here and just listening to the few questions that your Honour did ask gave me cause for pause to think that maybe that is evidence of a kind that might be of some assistance to your Honour if your Honour were felt weighed down by the healthy judicial scepticism, based on experience of course, of the purity of this particular substance." 35 His Honour acknowledged that Mr Sutherland's perception was right and that he was sceptical (T39). The matter was adjourned to enable the applicant to place before the Court pharmacological evidence as foreshadowed by Mr Sutherland. 36 The proceedings resumed on 8 July 2005. A report had, in the meantime, been procured from Associate Professor Starmer, the professor of pharmacology at the University of Sydney. Professor Starmer's report included these words: (AB 38) "14. The residual effects after MDMA (75 - 150 mg) include exhaustion, fatigue, depression, nausea, numbness, feelings of coldness, anxiety attacks, persistent insomnia, rage reactions, psychosis and, possibly, flashbacks. The residual effects of MDMA may persist for period of several hours up to two weeks after drug ingestion. Users develop a rapid tolerance to MDMA. Most users will therefore (for financial reasons) allow an interval of at least a week between doses of the drug. More frequent use of MDMA results in a reduction of the pleasant effects and an increase in the unpleasant effects of the drug. If Mr Donnelly planned to take ecstasy tablets every day, the desired effects are likely to have become progressively less evident. ..." 37 Mr Donnelly was recalled. He described, for the first time, certain adverse side effects of ecstasy. The examination in chief was in these terms: (8.7.05: T2) "Q. When your usage increased, and I think you explained to his Honour initially upwards of something in the order of five days a week or thereabouts? A. Sure. Q. What did the increased usage, that is where you were not having a gap of four or five or days or a week in between usage. What difference if any did that make to you? A. Well, the drug would work again. It stops working when you do it every day over a period of time, so you need to take a couple of days off to make it work properly again. You start to feel pretty, pretty sick after a while as well. Q. I am sorry, I missed that last -- ? A. You start to feel pretty sick after long periods of using it." 38 Given these effects, Mr Donnelly described his practice in taking the drug in these terms: (T3) "Q. If you got to the stage during your heavy usage where you were feeling nauseous and sick, so you took a day or a couple of days off, would you be off the drug completely or would you use it in any way? A. I'd still taste a little bit or snort a tiny amount even on days off, but just enough to get the taste and the feel, not really for a drugs effect." 39 He was asked about Professor Starmer's report: (T3) "Q. You understand that during the adjournment period, your solicitor has obtained from Professor Starmer as you just saw me tender --? A. Yes. Q. -- a report. Have you seen that report? A. No." 40 When cross examined, Mr Donnelly said this: (T5) "Q. Sir, you said that you have not seen this report by Professor Starmer? A. No. Q. Have you discussed it with your legal representatives at all? A. I spoke briefly to Michael Kirby this morning." 41 When questioned further, Mr Donnelly added: (T5/6) "Q. Did you talk about how the report indicates that people who use MDMA more frequently than once a week tend to have a result where the pleasant effect is reduced and there is an increase in the unpleasant effects? A. He -- Q. Did you discuss that? A. -- he read me a small excerpt from the report, I think that was one of the lines yep. Q. You did discuss that? A. Yeah he read me a small excerpt. Q. Did you also discuss the unpleasant, what those unpleasant effects are for example, depression, restlessness, nausea, did you discuss those things? A. No I don't think so." 42 It was put to Mr Donnelly that he had changed his account, and had tailored his evidence so that it did not conflict with that of Professor Starmer. He denied that suggestion, providing the following explanation: (T7) "A. No what I've done is I've taken the average of say I was using seven grams a week and just divided it by the days. I was using the drug every day and mostly I'd be using a gram a day." 43 Against this background, let me turn to the grounds of appeal. It is convenient to deal with a number of grounds together. Arguments on Appeal. (a) That the sentencing judge failed to give any or any sufficient reasons for finding that he was not satisfied that the offender imported the MDMA into Australia for his own personal use; and (b) That the sentencing judge should have held that the maximum sentence applicable to each charge was a fine of $2,200 or imprisonment for a period not exceeding two years or both (Customs Act 1901 section 235). (c) That the sentence imposed exceeded the available statutory maximum. 44 Mr Glissan QC appeared for Mr Donnelly on the appeal. He submitted that the material before the sentencing Judge amounted to a powerful case that his motivation was personal, not commercial. He was a regular and heavy user of ecstasy, as his Honour accepted. He was psychologically dependant upon it. He could be expected to need the drug once he returned to Australia. It was much cheaper in London. Whilst he had a number of convictions, none related to drug dealing. Unusually, the drug was in powder form, rather than tablet form. He was in the habit of using the drug in powder form. Sgt Stipnieks had not previously heard of an importation of ecstasy in powder form. Sgt Stipnieks agreed that the drug was much more readily saleable and valuable in tablet form. There was no evidence that Mr Donnelly had a pill press or the know-how or connections to transform the drugs from powder to tablet. 45 These were all matters said to support his claim that he imported the drugs for personal use. They were matters in the applicant's submission, that his Honour was obliged to weigh and accept or reject. Instead, his Honour had, in the passage already quoted (para 29) (supra para 13), simply adverted to the quantity and value of the drugs imported. In written submissions, the applicant said this in respect of that approach: "22. These do not, it is submitted, amount to reasons at all. There was no issue about the quantity or the commercial value of the drug beyond that identified above. More, there was no evidentiary basis for linking the accused at any past time with other than personal use of the drugs, nor quantity apart, for doing so on this occasion. To the contrary his long history of addiction, so carefully weighed by his Honour, argued strongly for the defence he advanced." 46 There was, according to the applicant, nothing beyond the quantity of the drugs which led his Honour to reject the applicant's case (para 26). 47 The Crown responded to these submissions by drawing attention to the findings his Honour made before his conclusions, which are set out above. Contrary to the applicant's submissions, his Honour did, according to the Crown, reject significant aspects of the applicant's evidence. He said this: (ROS p7/8) "27. The offender claims that, as he was a regular and heavy user of MDMA, using up to a gram of it almost every day of the week, something that he had done for two or three years, he purchased the MDMA which he imported into Australia for his own use, purchasing sufficient to last him about a year. Also, he claims that he purchased the cocaine which he imported into Australia for his own personal use so that he could have a 'little bit of fun'." 48 His Honour continued, making the following adverse finding against the applicant: (ROS p8) "28. I do not doubt that MDMA and cocaine are widely available, easily obtainable and cheaper to purchase in London than in Sydney. I do not doubt that the offender was a regular and heavy user of MDMA at the time of his arrest and that he had been such a user of it for two or three years before his arrest, although I doubt that he used as much of it each day and that he used it almost every day as he claimed . ..." (emphasis added) 49 The remarks continued, again commenting adversely upon the applicant's evidence: "28. ... Also, I do not doubt that he had used other prohibited drugs, including cocaine, before his arrest. However, I do not accept that he did not know the approximate purity of street quality MDMA and the approximate purity of MDMA that he had purchased. A regular and heavy user of a prohibited drug, whether it was heroin, cocaine, amphetamine or MDMA, would want to know the approximate purity of the drug being purchased so as to ensure value for money, and being used so as not to endanger his or her own life." (emphasis added) 50 It was within that context that his Honour stated that he was not satisfied that the applicant had imported the MDMA for his own personal use (ROS para 29), referring to the value of the drugs, both wholesale and street value. It was, he said, quite obvious that he had "imported it into Australia to deal with it commercially" (ROS para 29). 51 In my view, his Honour provided adequate reasons. He made it clear that he did not accept the applicant's evidence concerning the level of his use, one gram per day. The suggestion of a year's supply of drugs for personal use, imported at some personal risk, both physically and legally, stretches one's credulity. That evidence having been rejected, so that the supply was plainly for more than a year (and perhaps considerably more), it is hardly surprising that his Honour was not persuaded on the civil onus. 52 I would reject grounds (a), (b) and (c). (d) In the alternative, that the sentence imposed was too severe. 53 This aspect was not the subject of written or oral submissions. The sentence was plainly within range. It was not too severe. I would likewise reject ground (d). Orders. 54 The orders I propose are: 1. Leave to appeal be granted. 2. But the appeal dismissed. ********** 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.