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Court of Criminal Appeal 28 September 2001

R v Efendi

[2001] NSWCCA 391

Also reported as 125 A Crim R 487
Drugs

Citation: R v Efendi [2001] NSWCCA 391
Court: NSW Court of Criminal Appeal
Date: 28 September 2001
Judge(s): Heydon JA (primary judgment); Wood CJ at CL and Carruthers AJ (agreeing)

Background

The appellant, an Indonesian national, was convicted after a jury trial in the District Court on two counts of importing prohibited imports under the Customs Act 1901: a commercial quantity of MDMA (commonly known as Ecstasy) and a trafficable quantity of methylamphetamine (Speed). The drugs were found concealed in the hollow legs of an exercise stepper machine in his luggage on arrival at Sydney International Airport in August 1998.

The appellant's case at trial was that he had been approached at the airport in Indonesia by an elderly woman who asked him to carry the stepper to her son in Australia, and that he was unaware it contained drugs. The jury rejected that account. On sentence, the trial judge found beyond reasonable doubt that the appellant had acted as a courier, accepting $3,000 for doing so, and had no prior criminal history.

The District Court sentenced the appellant to ten years imprisonment with a six-year non-parole period for the Ecstasy count, and a concurrent fixed term of five years for the Speed count. The appellant abandoned his appeal against conviction and pressed only the appeal against sentence.

  • Whether the sentencing judge erred in treating Ecstasy importation as comparable in seriousness to heroin or cocaine importation for sentencing purposes.
  • Whether the guidelines established in R v Wong & Leung (which concerned heroin) applied with equal force to Ecstasy importation.
  • Whether a ten-year head sentence with a six-year non-parole period was within the appropriate range for a first offender acting as a courier of a commercial quantity of Ecstasy.
  • Whether the non-parole period for the Ecstasy count should have been aligned with the five-year fixed term for the Speed count.

Decision

The Court rejected the argument that Ecstasy importation should be treated as less serious than heroin or cocaine importation for sentencing purposes. Heydon JA noted that since at least 1989, MDMA had been recognised as posing a serious danger to the community. Nothing in the intervening period altered that assessment.

The Court also rejected the submission that the maximum penalties available under the Customs Act 1901 supported a lower sentencing bracket for Ecstasy. The maximum penalty of life imprisonment for importing a commercial quantity of MDMA is identical to that which applies to heroin and cocaine. This parity, the Court found, was inconsistent with any argument for treating Ecstasy as less grave. Accordingly, the guidelines in R v Wong & Leung remained applicable.

On the question of whether the sentence fell outside the appropriate range, the Court acknowledged that the ten-year term appeared to be the highest imposed on a first offender pleading not guilty for this type of offence within the available statistics. However, it noted the statistics only ran to March 2000 and did not capture subsequent convictions. More fundamentally, the Court confirmed that sentencing statistics provide only a general reference point: that a sentence sits at the top of a statistical range does not of itself reveal error, unless all other sentences were significantly below it, which was not demonstrated here.

The Court found no error in the sentence for the Ecstasy count and declined to adjust the non-parole period to match the five-year fixed term for the Speed count. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that MDMA (Ecstasy) importation attracts the same seriousness in sentencing as heroin and cocaine importation, given the identical maximum penalties available under the Customs Act 1901 and the recognised danger of the drug.
  • The sentencing guidelines established in R v Wong & Leung for commercial quantity drug importation apply to Ecstasy importation and are not to be discounted simply because the drug is MDMA rather than heroin.
  • Sentencing statistics are a general reference point only. A sentence at the statistical ceiling does not of itself constitute error; demonstrable error requires showing that all comparable sentences were significantly lower.
  • Prior good character carries reduced weight in commercial drug importation cases. Couriers are typically selected precisely because they have no prior convictions, so the mitigating value of a clean record is diminished in this context.
  • Hardship to the offender's family from incarceration is a relevant sentencing consideration, but unless the circumstances are exceptional, it will not substantially reduce an otherwise appropriate sentence.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B

Cases
- R v Wong & Leung (1999) 108 A Crim R 531
- R v Olbrich (1999) 199 CLR 270
- R v Thompson & Houlton (2000) 49 NSWLR 383
- R v Bowers (1997) 97 A Crim R 461
- R v Hauser (NSW Court of Criminal Appeal, unreported, 11 December 1997)
- R v Schaal (Supreme Court of New South Wales, Wood J, unreported, 8 September 1989)