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Court of Criminal Appeal 13 July 2000

Regina v Harvey

[2000] NSWCCA 253

Also reported as [2000] 113 A Crim R 434
Drugs
CRIMINAL LAW WHETHER HIGH RANGE MID RANGE DRUG A RELEVANT DISTINCTION RANGE DRUG IMPORTATION OFFENCES WHETHER LESSER PENALTY FOR CONTEMPT

Citation: Regina v Harvey [2000] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 13 July 2000
Judge(s): Fitzgerald JA, Sperling J, Whealy J

Background

The appellant was convicted in the District Court of attempting to obtain possession of a prohibited import, namely 403 grams of amphetamine (51.3 grams pure, in 1508 tablets) with a street value of approximately $42,000. The offending arose after a parcel was intercepted at Melbourne airport, the drugs were replaced with dummy tablets, and the package was delivered to the appellant under police surveillance. When officers raided the premises, the parcel had been opened and fluorescent powder from the dummy packets was found on the appellant's hands.

The sentencing judge in the District Court found that the appellant's role was to receive the amphetamine and hold it for the persons who had arranged the importation. He was sentenced to five years' imprisonment with a non-parole period of two years and thirty-three weeks.

The appellant sought leave to appeal against sentence on several grounds, including that the sentencing judge failed to properly apply a statutory reduction under the Crimes Act 1914 (Cth), that the sentence was excessive by reference to the guideline judgment in Wong and Leung, and that the offence of attempting to obtain possession should have attracted a lesser penalty than the completed offence.

  • Whether the sentencing judge correctly applied the one-third reduction required by s 16G of the Crimes Act 1914 (Cth) in a state where remissions are not available
  • Whether the Wong and Leung guidelines, developed for high-range drugs such as heroin and cocaine, applied to mid-range drugs such as amphetamines, and whether the sentence was excessive by reference to those guidelines
  • Whether the offence of attempting to obtain possession should attract a lesser penalty than the completed offence of obtaining possession
  • Whether the sentence was manifestly excessive overall

Decision

Role of the appellant. Sperling J (with Fitzgerald JA and Whealy J agreeing) rejected the Crown's submission that the appellant occupied a middle-management role in the drug hierarchy. His role in receiving and holding drugs for collection by others involved no more responsibility than that of a bare courier. Neither the appellant nor the analogous offender in R v Kovacs had any part in planning or organising the enterprise, placing them at the lowest level of the relevant hierarchy.

Section 16G reduction. The Court rejected the argument that the sentencing judge had failed to apply or disclose the s 16G reduction. The sentencing judge had expressly acknowledged s 16G, and the Court observed that the exercise was so routine and the approach so well settled that no detailed exposition was required.

High-range versus mid-range drugs. Sperling J expressed considerable doubt about whether the entrenched judicial distinction between "high-range" drugs (such as heroin and cocaine) and "mid-range" drugs (such as amphetamines) is correct, noting the legislature itself drew no such distinction in the applicable maximum penalties. However, because the distinction was so firmly established and no full argument on the point was advanced, his Honour declined to depart from it in the present case. Accordingly, the Wong and Leung guidelines, while not directly applicable to amphetamine offences, remained relevant with caution as a reference point.

Attempt versus completed offence. The Court found no basis for distinguishing between the attempt and the completed offence in the circumstances of this case. The legislation fixes identical maximum penalties for both, and the appellant's conduct and intent would have produced exactly the same outcome had the police left the genuine drugs in place. No reduction in sentence on this basis was warranted. The head sentence of five years sat at the very bottom of the guideline range applicable to equivalent high-range drug offences, and was somewhat below sentences upheld in comparable mid-range drug cases. The appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Wong and Leung guidelines, while directed at heroin and cocaine offences, remain applicable with caution to mid-range drug offences such as those involving amphetamines, and that sentences for mid-range offences are expected to be somewhat lower than for equivalent high-range drug cases.
  • Sperling J flagged significant doubt about the doctrinal basis for distinguishing between high-range and mid-range drugs for sentencing purposes, given the legislature drew no such distinction in setting maximum penalties, but declined to resolve the question without full argument and suggested it would be better addressed through a future guideline judgment.
  • A sentencing court is not required to spell out its s 16G one-third reduction in explicit terms where it is a routine and well-settled exercise, provided the provision is acknowledged.
  • Where an offender's role is confined to receiving and holding drugs for others without any involvement in planning or organising the importation, categorisation at the lowest level of the criminal hierarchy (equivalent to a bare courier) may be appropriate even where the label "courier" does not technically apply.
  • No automatic reduction in sentence arises from the fact that the charge is one of attempt rather than the completed offence; the distinction carries sentencing weight only where the circumstances of the attempt produce materially less criminal responsibility than the completed offence would have.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(c) and s 235(2)(d)(i)
- Crimes Act 1914 (Cth), s 16G

Cases:
- R v Wong and Leung [1999] NSWCCA 420
- R v Kovacs [2000] NSWCCA 74
- R v Bimahendali [1999] NSWCCA 409
- R v Bigic [2000] NSWCCA 9
- R v Benais [1999] NSWCCA 236
- R v Lam (1991) ACrimR 118
- R v Ferrer-Esis (1991) 55 ACrimR 231
- R v Lawless (Unreported, NSWCCA, 24 June 1994)