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Court of Criminal Appeal 16 September 1999

R v Spillane

[1999] NSWCCA 280

Drugs
SENTENCE COURIER PROCESS OF ARRIVING AT SENTENCE EVALUATION OF ASSISTANCE TO POLICE

Citation: R v Spillane [1999] NSWCCA 280
Court: NSW Court of Criminal Appeal
Date: 16 September 1999
Judges: Newman J, Simpson J, Hidden J

Background

The applicant, an Irish national living in London, arrived in Sydney on 21 June 1998 carrying a suitcase that concealed 5,686 ecstasy (MDMA) tablets with a net ecstasy content of 447.3 grams. That quantity sat high in the trafficable range, close to the 500-gram threshold for a commercial quantity. Customs officers discovered the tablets hidden inside a cushion.

The applicant initially denied ownership of the suitcase and offered explanations that were inconsistent and, as the sentencing judge observed, bordered on the absurd. He cooperated to a limited degree by accompanying police to a nearby hotel to wait for a potential contact, but no arrests resulted. He was clearly affected by alcohol throughout the relevant events and into his recorded police interview.

At the District Court, Mahoney DCJ sentenced the applicant to seven years' imprisonment with a non-parole period of four years and eight months. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by adopting an arithmetical approach to fixing the head sentence, derived by proportional reduction from the sentence in a comparable case involving a larger quantity
  • Whether the sentencing judge gave appropriate weight to the applicant's cooperation with police
  • Whether the sentencing judge erred in assessing ecstasy as a more harmful drug than prior case law had treated it, relying on media reporting and anecdotal evidence rather than pharmacological or toxicological evidence
  • Whether the resulting sentence fell within the appropriate range for offences of this kind

Decision

Hidden J (with Newman J and Simpson J agreeing) identified three errors in the sentencing approach, each of which was made out.

On the first ground, the Court held that it was impermissible to arrive at a head sentence by calculating a mathematical proportion between the quantity in the instant case and the quantity in a comparable case. The reference case, R v Bowers, involved a commercial quantity carrying a higher maximum penalty than the trafficable quantity before the Court. More fundamentally, sentencing for drug importation must not be treated as bearing a precise mathematical relationship to the weight of the drugs involved.

On the second ground, the Court found that the sentencing judge had not given sufficient weight to the applicant's cooperation, even though that assistance was accepted as minimal. The applicant had agreed to accompany police to the hotel and had participated in the operation, and that conduct warranted a more meaningful reduction than three months.

On the third ground, the Court accepted that the sentencing judge erred in enhancing the perceived gravity of ecstasy on the basis of media reportage and anecdotal evidence alone. Hunt CJ at CL had previously noted in Bowers that earlier decisions classifying ecstasy as a middle-range drug were reached without pharmacological or toxicological investigation, and had called for such investigation. In the absence of that expert material, reliance on general media coverage to treat ecstasy as significantly more dangerous was not a sound basis for sentencing.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Applicant re-sentenced to six years' imprisonment with a non-parole period of three and a half years, dated from 21 June 1998

Key Takeaways

  • A "mathematical" or proportional approach to fixing a head sentence by reference to a comparable case and drug quantity is an error of principle in drug importation sentencing; the relationship between sentence and quantity of drugs is not a precise arithmetical one.
  • The Court of Criminal Appeal confirmed that ecstasy was to be treated as a middle-range drug for sentencing purposes in the absence of proper pharmacological or toxicological evidence, and that media reportage and anecdotal material cannot substitute for such evidence when elevating a drug's perceived harmfulness.
  • Even limited cooperation with police (such as participating in a controlled operation at a hotel) must receive genuine and identifiable weight in the sentencing exercise, not merely a nominal reduction.
  • In reviewing the range of comparable cases, the Court found that sentences for trafficable quantity ecstasy importations by couriers clustered around five to seven years, with the original sentence of seven years sitting at the upper boundary without adequate justification.
  • Where an offender is a courier with no prior drug convictions, is affected by a recognised substance dependency, and has behaved constructively while in custody, those subjective factors carry meaningful weight in arriving at the appropriate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act (Cth), s 16A

Cases:
- R v Bowers (1997) 97 A Crim 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)
- R v Budiman (1998) 102 A Crim 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