Court of Appeal (WA)|2004-12-08|Before: McKechnie J, Wheeler J, McLure J

Harris v The Queen [2004] WASCA 292 (8 December 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HARRIS -v- THE QUEEN [2004] WASCA 292

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Drug offences - Pleas of guilty - Relevance of knowledge - Actual narcotic goods - Sentencing - Whether sentence manifestly excessive compared with other sentences

Customs Act 1901 (Cth), s 233B(1)(b), s 233B(1)(c)

Respondent : Commonwealth Director of Public Prosecutions

Aloia v The Queen (1983) WAR 133

Angeleski v The Queen [2003] WASCA 209

Barany v The Queen [2000] WASCA 240

Browning v The Queen, unreported, CCA SCt of WA; Library No 6389; 4 August 1986

De Bonde v The Queen [2002] WASCA 251

Diefenbach v The Queen [1999] WASCA 4

Festus v The Queen [2002] WASCA 25

Guy v The Queen [2004] WASCA 9

Harris v The Queen [2004] WASCA 223

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Johnson v The Queen [2004] WASCA 207

Marlan v The Queen [2003] WASCA 184

Mustafa v The Queen [2001] WASCA 192

Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270

R v Hafner [2002] WASCA 211

R v Sleiman (No 2) (1993) 113 FLR 34

Soh v The Queen [2003] WASCA 29

Tanadi v The Queen [1999] WASCA 188

Tulloh v The Queen [2004] WASCA 169

1 WHEELER J: I have had the advantage of reading in draft the reasons for decision of McKechnie J. I agree with those reasons and have nothing to add.

2 On 2 September 2002 the applicant entered Australia from India through Perth International Airport. Inside his wallet, though undetected by Customs officers at the time, the applicant had approximately 5 grams of cannabis resin.

3 Three days later, Customs officers intercepted a satchel that had been sent from Bangalore, India, addressed to the applicant at 14 Pavonia Heights, South Lake, WA. The satchel contained four hardcover books and one paperback book. Concealed inside the covers of three of the hardcover books were quantities of cannabis resin weighing 226.1 grams, 251.3 grams and 229.7 grams; the total weight being 707.1 grams.

4 Concealed inside the cover of the remaining hardcover book was a quantity of MDMA. The admixture weighed 241.3 grams of which the MDMA comprised 159.4 grams pure. As a result of this discovery, most of the drugs were removed, although a small quantity of MDMA powder and cannabis resin was replaced in the reconstructed book.

5 The satchel was delivered to 14 Pavonia Heights, South Lake, and accepted by the applicant. Shortly thereafter, Federal Police executed a search warrant. During the search Federal Police also located a small quantity of cannabis resin in the applicant's wallet, and cannabis leaf material and one ecstasy tablet in the house. In due course, the applicant was arraigned on an indictment containing four counts of offences contrary to s 233B(1)(b) of the Customs Act 1901. The indictment read as follows:

"1. Between 2 September 2002 and 5 September 2002 at Perth in the State of Western Australia MARK ANDREW HARRIS imported into Australia a prohibited import to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of cannabis resin, being not less than the trafficable quantity applicable to cannabis resin, contrary to paragraph 233B(1)(b) of the said Act

2. AND FURTHER THAT on 5 September 2002 at Perth in the State of Western Australia, MARK ANDREW HARRIS had in his possession prohibited imports to which s 233B of the Customs Act 1901 applied, namely narcotic goods consisting of 3,4-Methylenedioxymethamphetamine, commonly known as ecstasy, being not less than the trafficable quantity applicable to that narcotic substance, contrary to paragraph 233B(1)(c) of the said Act

3. AND FURTHER THAT on 5 September 2002 at Perth in the State of Western Australia, MARK ANDREW HARRIS attempted to commit an offence against paragraph 233B(1)(c) of the Customs Act 1901 in that the said MARK ANDREW HARRIS attempted to have in his possession prohibited imports to which section 233B of the said Act applied, namely narcotic goods consisting of 3,4-Methylenedioxymethamphetamine, commonly known as ecstasy, being not less than the trafficable quantity applicable to that narcotic substance, which had been imported into Australia in contravention of the said Act, contrary to subsection 11.1(1) of the Criminal Code 1995 (C'th).

4. AND FURTHER THAT between 2 September 2002 and 5 September 2002 at Perth in the State of Western Australia, MARK ANDREW HARRIS imported into Australia a prohibited import to which section 233B of the Customs Act 1991 applied, namely narcotic goods consisting of a quantity of cannabis resin, contrary to paragraph 233B(1)(b) of the said Act."

6 Count 1 related to the 707 grams of cannabis resin in the books. Count 2 related to the quantity of MDMA left in the book.

7 Count 3 related to the quantity of MDMA which had been removed by the authorities prior to delivery of the parcel. Hence, this was a charge of attempted possession. Count 4 related to the cannabis resin in the applicant's wallet.

8 The matter came for trial on 10 November 2003. At the commencement of the trial the applicant pleaded guilty to count 1 and count 4 and not guilty to the two counts relating to MDMA, counts 2 and 3. A jury was empanelled. After prosecuting counsel had opened the case, but before any evidence was called, the applicant altered his plea on counts 2 and 3 to that of guilty.

• Counts 2 and 3 - 7 years' imprisonment concurrent with each other and concurrent with that on count 1.

• Count 4 - 3 months' cumulative on the other sentences.

10 The result was a head sentence of 7 years and 3 months, backdated to 5 September 2002, with an order for a non-parole period which was close to 50 per cent but imposed as 44 months from 5 September 2002. From that combined sentence the applicant appeals on four grounds substituted by leave on the morning of the appeal.

11 Although the applicant seeks leave to appeal against all sentences, the grounds of appeal and argument advanced on his behalf challenge only the sentences imposed in respect of count 2 and 3 relating to MDMA.

12 The grounds require some factual explanation. Following the plea of guilty, counsel for the applicant at trial, who was not counsel on appeal, made a plea in mitigation to the Judge, indicating his instructions were that the applicant had no knowledge of the existence of ecstasy. The applicant did not know it was going to be in the package. It was not part of the arrangement that he had made before he left India. The basis of the plea was said to be following the Judge's ruling which followed He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

13 In the course of video record of interview, the applicant told police that he had arranged for a shipment of hashish to be sent to him. He described how he had met a man called Jameel who owned a shop in a village about 10 kms away from the applicant's house in India. Jameel said he could arrange for the applicant to have what it was he smoked in Australia. The applicant was therefore expecting A4 size hardback books for himself, two of which were to contain approximately half a kilo of hashish. He was not expecting 750 grams of hashish. The applicant said the relationship with Jameel was such that if more books were sent the next time he was in India, Jameel would just ask for the money.

14 When asked about the content of the books containing MDMA the applicant expressed surprise believing it to be either a man named Lloyd Leahy or Jameel who were responsible for the importation. Leahy was a close friend of the applicant. The applicant indicated that had he not been arrested he would have phoned Leahy, asked him to get hold of Jameel and ask him [Jameel] what had happened. The applicant said: "I'm quite sure I wouldn't have chucked it down the toilet. ... I would've kept it".

15 Following the Crown's response to the plea in mitigation, the Judge raised his concerns about the exact nature of the plea and the facts admitted by the plea, specifically the question of the applicant's knowledge, or lack of knowledge, that the prohibited substance to which he pleaded guilty was ecstasy, not hashish. The Judge indicated he was trying to find the views of the parties as to whether knowledge of the precise nature of the illegal drug was an aggravating or a mitigating factor and who bore the onus. The Judge told defence counsel:

"I'm left unable to make a finding either way but if you are wanting me to make a finding so you can put it to me as a mitigating factor there will have to be a trial of issues, the onus being on you, on the balance of probabilities. Isn't that the law?"

17 After some further interchange, the Judge adjourned the proceedings to enable counsel to consider whether they would seek a trial of issues. The matter was then adjourned until 14 November 2003. In the interim, each party filed written submissions. The Judge summarised the position on behalf of the prosecution that, from their point of view, there was nothing to be gained or lost from a trial of issues but pointed out that from the applicant's point of view it was a double-edged sword because if he found that the applicant had no knowledge, he would be unable to ascertain the applicant's knowledge or he might make a positive finding against the applicant. The Judge then asked counsel what they wanted him to do. The Judge accepted that the applicant's criminality would not be increased if he knew there was ecstasy in the packet but asked for assistance as to whether the lack of knowledge was a mitigating factor. After a further interchange the Judge gave counsel the opportunity to seek further instructions. Following that opportunity, defence counsel advised the Judge that he would not be calling for a trial of issues.

18 The Judge then proceeded to sentence. He commenced his sentencing remarks by setting up and repeating a ruling he had made earlier:

"However, the law is, and I so ruled before the trial itself commenced, that if you are a party to importing and/or possessing a prohibited narcotic drug then it is legally irrelevant that you do not know the nature of or the quantity of such drugs and accordingly that if the parcel contains more than one type or more in quantity that you expect or arrange then you are guilty of whatever in fact is imported or possessed."

19 The Judge directed his attention to the issue of knowledge of the ecstasy. He said:

" ... I am unable to make a positive finding as to whether you had arranged for the ecstasy to be sent to you given your denial of that and in the absence of proof to the contrary but in light of the amount involved both in quantity and worth on the street and the lack of a real explanation I do not find myself able to accept your denial either.

As I have said on an earlier occasion that really leaves me to sentence you on the law as I have ruled it to be. A custodial sentence is inevitable. In my view, the first three offences should, in view of what I have found to be the facts and the limitations of my ability to make findings of fact be dealt with by bearing in mind the total criminality involved, a proper sentence being fixed for each offence with questions of concurrence and totality then being looked at. ..."

20 I have read in draft the reasons of McLure J concerning the applicant's plea of guilty and the inconsistency of the plea in mitigation. Although these raise an important issue, it is one which in my view should not be determined in the present matter. For the purposes of this application, the respondent was prepared to concede that an absence of knowledge of the relevant substance on the part of the appellant would be mitigating. It did not take any point about the consistency or otherwise of the facts put forward by the appellant with his plea.

21 I now turn to the grounds of appeal which I will deal with in a slightly different order to the way in which they are formulated.

"The learned sentencing Judge erred in advising counsel for the applicant that absence of knowledge of the MDMA would not be regarded as a mitigating factor."

22 I do not consider the Judge made this error. Not every remark made by a Judge is a reasoned decision or order. The Judge posed the question:

"If he's got to be sentenced for importing ecstasy, then how can it be more serious than he knows that it's there. If he doesn't know that it's going to be included, does it make it less? That's the question."

23 The Judge clearly knew he would have to make findings on the question and indicated that in his view of the authorities the safe course to take would be to ignore the question of knowledge.

24 The interchange occurred at a time when plainly the Judge was seeking the assistance of counsel. The view the Judge expressed was no more than a tentative view and he received no further assistance from counsel. It cannot be reasonably suggested that the tentative view so expressed misled counsel into foregoing a trial of issues, because the Judge clearly left that option open and adjourned proceedings on one occasion for consideration of the point and allowed counsel to seek further instructions when the proceedings resumed. The decision whether or not to press for a trial of issues was one for counsel, not the Judge, and the Judge did not foreclose the option. I do not uphold ground 2. In making that finding, I should express my view that, if proved, a lack of knowledge of the precise nature of a prohibited import may, in circumstances, be a mitigating factor: R v Sleiman (No 2) (1993) 113 FLR 34 at 37.

"1. The learned sentencing Judge erred in not making any finding of fact about whether the applicant arranged for and knew that the MDMA the subject of counts 2 and 3 on the indictment was in the package.

3. The learned sentencing Judge erred in holding that he was unable to make a finding about the applicant's knowledge of the MDMA unless there was a trial of the issues, when in fact the learned sentencing Judge had sufficient material within the depositions and the applicant's videotaped record of interview to make such a finding."

25 I have set out the Judge's finding or more particularly his inability on the evidence to make a finding. In my opinion such a course was open to him. As the lack of knowledge may have been a mitigating factor, the onus was on the applicant to establish the fact: Aloia v The Queen (1983) WAR 133; Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270.

26 A trial of issues is not always necessary. The material before the sentencing Judge might be sufficient to enable an offender to discharge the onus. In the present case, there were a number of circumstances, including the general implausibility of the applicant's account of his lack of knowledge of MDMA, when compared with the overall circumstances of the importation of illicit drugs into Western Australia. Part of the material before the Judge included the pre-sentence report, the contents of which were not challenged before the Judge. Comments attributed to the applicant within that report would indicate that he knew that the MDMA would be a part of the importation of illicit drugs. As the applicant himself acknowledged in the course of the video record of interview, his explanation concerning the amount of cannabis resin seemed implausible. It was open to the Judge to reject the explanation proffered by the applicant in the video record of interview, on instructions through his counsel, and therefore be left in a position where he was unable to determine whether or not the applicant knew he was importing MDMA.

"The sentence imposed on the applicant was manifestly excessive having regard to the following:

(a) The applicant's plea of guilty and co-operation;

(b) The fact that the applicant will serve his sentence in a foreign country without social supports;

(c) The quantity of the MDMA;

(d) The lack of knowledge on the part of the applicant that MDMA would be contained in the packages as well as cannabis;

(e) Other decided cases in which similar sentences have been imposed for importations of far greater quantities of MDMA."

28 Particulars (a) and (b) of ground 4 may be briefly disposed of. The Judge expressly took into account, and gave some credit for, the pleas of guilty and the applicant's antecedents. There seems to be little in the way of co-operation that would justify any reduction in an otherwise appropriate sentence. Furthermore, as the Judge noted, the plea of guilty did not involve a great element of remorse. It was entered at a late stage of the proceedings and in circumstances where the applicant had been caught red-handed. However, the Judge did give weight to the plea of guilty.

29 The personal circumstances, antecedents, and prior good record of the applicant, are all factors of comparatively little weight in cases of drug trafficking: Heryadi (1998) A Crim R 578. Nor can much weight be accorded to the fact that the applicant will be incarcerated far from friends, family and support in a foreign country. That is the inevitable result for those caught smuggling: Ferrer-Esis (1991) 55 A Crim R 231 at 239; Soh v The Queen [2003] WASCA 29.

30 That leaves for consideration grounds (c), (d) and (e). Grounds (c) and (d) are to an extent linked together.

31 In R v Nai Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284 the Court of Appeal conducted an extensive review of authorities in relation to the seriousness of MDMA. The Court held that the seriousness of an offence under s 233B of the Customs Act relating to MDMA should be determined by reference to the statutory provisions relating to it rather than by some comparison with heroin or cocaine. Relevantly in this case, the fact that the applicant was convicted of trafficking in cannabis resin, a drug of less objective seriousness under Schedule VI of the Customs Act, does not lessen the criminality to be attached to the objective possession or attempted possession, as the case may be, of MDMA. Poon is also authority for the proposition that it is usually futile to compare a sentence imposed for one offence with another, partly because the criminality to be attributed to the conduct involving a particular quantity of one drug would almost certainly differ from that involving a like quantity of another drug (per Ipp J at par [19], Hulme J at par [48]).

32 In the appeal, the applicant referred in summary to a number of other decisions. The summary was brief and in some cases inaccurate. I expand the summary with more facts:

• In Diefenbach v The Queen [1999] WASCA 4, the Criminal Court of Appeal discussed sentences passed on four people for importing narcotic goods consisting of a quantity of 3,4 Methylenedioxymethamphetamine, also known as MDMA or ecstasy.

On 30 March 1998 Diefenbach and three others, Lindke, Schubert and Jezowski, arrived at Perth International Airport on board the same flight from Amsterdam via Kuala Lumpur. They were stopped by customs officers, spoken to and subsequently searched. Each of them was wearing beneath their clothing a female girdle in which were secreted socks containing a quantity of tablets which were later determined to be ecstasy. Diefenbach was found to be carrying 6967 tablets with a gross weight of 2.083kg containing 562.4g of pure ecstasy. The trafficable quantity of the drug is 0.5 of a gram and the commercial quantity is 500g. Lindke had in his possession 6313 tablets containing 505.8g of pure ecstasy with a gross weight of 1.887kg. Schubert was found in possession of 6007 tablets containing 513g of pure ecstasy with a gross weight of 1796g. Jezowski was found with 6007 tablets containing 472.1g of pure ecstasy with a gross weight of 1796g. The total quantity involved in the attempted importation was over 2kg pure.

Diefenbach made no comments which were of any assistance to the police. The maximum period for this offence was life imprisonment.

Diefenbach was sentenced to imprisonment for 12 years with a non-parole period of 6 years. On appeal the sentence was reduced to 10 years with a non-parole period of 5 years. Schubert had immediately confessed and co-operated with the authorities. He was sentenced to imprisonment for 51/2 years with a non-parole period of 21/2 years. Jezowski was sentenced to a term of imprisonment for 9 years with a minimum of 4 years. Lindke was sentenced to imprisonment for 9 years with a non-parole period of 41/2 years.

• Tanadi v The Queen [1999] WASCA 188: On 27 September 1998 when Tanadi arrived at the Perth International Airport from Jakarta, Indonesia, he was found to be wearing a corset containing 3,037 tablets of the narcotic commonly known as Ecstasy and a further 720 tablets containing a concoction apparently known as Ice, which contained both methylamphetamine and heroin.

The Ecstasy, or 3,4-Methylenedioxymeth-amphetamine or MDMA - the gross weight of the tablets was 674.1 grams, which had an analysed purity of 39.1 per cent so that the net weight of the prohibited narcotic was 263.5 grams. The methylamphetamine or MDA - the gross weight of the Ice tablets was 209.7 grams, and those contained 8 per cent of pure methylamphetamine, so that the net weight was 16.4 grams. Those same tablets contained 3.2 per cent pure heroin, so that there was, in all, 6.8 grams net weight of pure heroin.

Tanadi was sentenced to 10 years' imprisonment, with a 5 year non-parole period.

• Barany v The Queen [2000] WASCA 240: On 27 November 1991 Barany arrived in Perth by air as a passenger from Paris via Kuala Lumpur. A false bottom was detected in a blue bag. Beneath this were concealed 4,168 tablets of ecstasy with a net weight of 600.3 grams. The tablets had a purity of 52.1 per cent ecstasy with a net weight of pure ecstasy of 312.7 grams. The trafficable quantity is 0.50 grams. The street value of the ecstasy was said to be some $208,000.

After her arrest on arrival in Perth, Barany agreed to assist the Australian Federal Police.

Barany was sentenced to 6 years' imprisonment with a non-parole period of 3 years. This sentence included a discount of 2 years for co-operation.

• In De Bonde v The Queen [2002] WASCA 251, the court discussed sentences imposed on a number of people who were associated in the importation of MDMA, although each was charged separately with only the amount they individually brought in. De Bonde imported 37.8 grams of methylenedioxmethamphetamine ("ecstasy") with a purity of between 81.3 per cent and 81.9 per cent. The net pure weight was 30.7 grams. An x-ray taken when De Bonde passed through customs on his return to Perth from Bali revealed foreign objects in his body. When police subsequently executed a search warrant at his home, he was in possession of a number of packages containing ecstasy, and others subsequently passed through his digestive system. He initialled denied, but, not surprisingly, later admitted, that he had imported the drug.

Associates of De Bonde also imported quantities of ecstasy at that time. Dean imported a net pure weight of 575.2 grams, Ebert imported a net pure weight of 318 grams, Gillespie imported a net pure weight of 318 grams and Tormey imported a net pure weight of 185.84 grams. De Bonde was not alleged to be involved in the importations by his associates.

De Bonde and his associates other than Dean pleaded guilty on the fast-track system to one count of importing a quantity of ecstasy in excess of the trafficable quantity contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). Under Sch 6 of the Customs Act, .5 gram is a trafficable quantity of ecstasy. Under s 235 of the Customs Act, the maximum penalty for De Bonde's offence was a fine of $500,000 or imprisonment for a period not exceeding 25 years or both. Ebert, Gillespie and Tormey were sentenced to imprisonment for 6 years with a 3 year non-parole period. De Bonde was sentenced to imprisonment for 5 years with a non-parole period of 21/2 years. Dean, who pleaded guilty on the fast-track system to one count of importing a quantity of ecstasy in excess of a commercial quantity, was sentenced to imprisonment for 7 years with a 31/2 year non-parole period.

• R v B [2004] WASCA 1. On 12 January 2003 "B" was arrested and charged with one count of aiding, abetting or procuring another, namely Djamshid Paryzad Mashady ("Mashady") to import a commercial quantity of ecstasy into Australia contrary to s 233B of the Customs Act 1901 (Cth).

Mashady had made a fast-track plea of guilty to importing a commercial quantity of ecstasy into Australia from Amsterdam via Paris and Singapore. The bulk weight of the ecstasy was around 6.9 kilograms and the pure weight was 2.45 kilograms. The sentencing judge considered that Mashady should be sentenced to 9 years' imprisonment with a non-parole period of 41/2 years, but, by virtue of co-operation, this should be reduced to 7 years with a non-parole period of 31/2 years.

"B"'s role was to monitor Mashady and report back to the organiser of the importation. "B" pleaded guilty to the charge of aiding and abetting Mashady. Although the plea of guilty was not a fast-track plea, nevertheless it was made at a fairly early stage. "B" was sentenced to a term of imprisonment of 7 years with a non-parole period of 31/2 years.

33 This limited sample reflects the problems exemplified in Poon.

34 There are many cases involving possession of MDMA in similar circumstances. In Mustafa v The Queen [2001] WASCA 192, the appellant acted as a collector of drugs from one of four couriers involved. In Guy v The Queen [2004] WASCA 9, the appellant had in his possession some 4,256 tablets of MDMA. An appeal against the sentence of 12 years' imprisonment with parole eligibility was dismissed.

35 In Angeleski v The Queen [2003] WASCA 209, the appellant was convicted of a number of offences involving MDMA. At [14] Steytler J said:

"Because of the seriousness with which trafficking in methylamphetamine is viewed by the courts in this State, a generally high starting point has been adopted, at least in more recent years, for cases involving large quantities of the drug."

36 Steytler J then conducted a review of cases which makes it unnecessary for me to do likewise. More recently in Tulloh v The Queen [2004] WASCA 169, Miller J and McLure J both extensively reviewed many appellate decisions regarding sentences for drug traffickers. I have had regard to the cases I have just referred to in reaching my conclusion that the over all sentence is not so far outside the range of sentences commonly imposed as to manifest error.

37 In reaching this conclusion I have borne in mind that there was effectively one importation involving two illicit drugs. There are many common elements and it is important that the applicant should not be doubly punished for the same criminal conduct: Johnson v The Queen [2004] WASCA 207.

38 In addition to the range of sentences, there are other matters to be taken into account in determining whether the sentence is manifestly excessive.

39 In Browning v The Queen, unreported, CCA SCt of WA; Library No 6389; 4 August 1986, a decision to which the trial Judge referred, Burt CJ said:

" ... I think it important that the Court make it clear that there must be a sentence which has some deterrent element in it passed upon people who are going to use the post for purposes of importing narcotics into Australia. That means of importation would generally result in the quantity being imported being comparatively small. It will be small because of the nature of the means used to import. At the same time, however, it is a method of importation which is very difficult to

detect and a person who embarks upon it must realise that if he is to be apprehended in the act he will receive a punishment which has a deterrent element within it."

40 See also Furness (1995) 79 A Crim R 59.

41 There remains the question of the knowledge of the applicant. The plea of guilty in this case must be accepted as an acknowledgement of the possession of a prohibited drug in a commercial quantity. An appeal against conviction was discontinued: Harris v The Queen [2004] WASCA 223. By that plea the applicant acknowledged that he was in possession of a trafficable quantity of MDMA and attempt to possess a trafficable quantity of MDMA exposing him to a range of sentences under the Customs Act. The objective seriousness of the offence is well described in the authorities.

42 In my opinion, the sentence in relation to count 3 should not be disturbed.

43 As to count 2, the respondent concedes that the Judge fell into appellable error. In my opinion, this is an appropriate concession. The amount involved was 5 grams of ecstasy compared with 159.4 grams of pure ecstasy on count 3. I would set aside the sentence of 7 years imposed in relation to count 2 and in lieu of thereof impose a sentence of 2 years imprisonment to be served concurrently with the sentences imposed on counts 1 and 3. I would otherwise grant leave but dismiss the appeal.

44 MCLURE J: I have had the advantage of reading in draft form the reasons to be published by McKechnie J. The facts and grounds of appeal appear in his judgment and I do not restate them, save to the extent necessary to understand these reasons.

45 The applicant pleaded guilty to four counts of contravening the Customs Act 1901 (Cth) ("the Act"), being that he:

- imported into Australia a prohibited import, namely, narcotic goods consisting of a quantity of cannabis resin contrary to par 233B(1)(b) of the Act (count 1). The amount of cannabis resin was 707 grams. The penalty imposed was a term of imprisonment of 4 years;

- had in his possession prohibited imports, namely, narcotic goods consisting of ecstasy contrary to par 233B(1)(c) of

the Act (count 2). This was a controlled delivery comprising some 20 grams. The penalty imposed for the offence was imprisonment of 7 years;

- attempted to have in his possession prohibited imports, namely, narcotic goods consisting of ecstasy contrary to s 11.1(1) of the Criminal Code 1995 (Cth) (count 3). The amount of ecstasy was 241 grams (159.4 grams pure), less the amount the subject of the controlled delivery. The penalty imposed was a term of imprisonment of 7 years;

- imported into Australia a prohibited import, namely, narcotic goods consisting of a quantity of cannabis resin (count 4). This related to cannabis located in the appellant's wallet. The penalty imposed was a term of imprisonment of 3 months.

46 The applicant seeks leave to appeal against sentence. The application first came before the Court of Criminal Appeal on 7 May 2004. Based on submissions concerning the circumstances in which he came to have custody of the ecstasy and his knowledge thereof, the Court raised with the applicant's then counsel whether the submission was one that might more properly be made in support of an appeal against conviction. The Court adjourned the matter to enable the applicant's counsel to give further consideration to the matter. What was unknown at the time was that the applicant had lodged a notice of discontinuance of his appeal against conviction. The applicant later applied for leave to withdraw the notice of discontinuance. That application was dismissed on the ground that the Court had no jurisdiction to grant leave: Harris v The Queen [2004] WASCA 223.

47 The applicant's submissions to this Court on his application for leave to appeal against sentence are substantially the same as that raised at the first hearing in May 2004. His position and the relevant factual background is conveniently summarised in the reasons of Steytler J in Harris v The Queen (supra) at [7] - [10] as follows:

"The applicant was interviewed by police officers. He admitted having organised the importation of the cannabis resin and having taken possession of the books containing the narcotics when they were delivered. He said that he had arranged with an associate in India to import the cannabis resin but that he had only expected to receive 500 grams of it. In fact he received around 700 grams of cannabis resin. He was surprised and shocked to discover that, in addition to the cannabis resin, the ecstasy powder had been imported. He said that he had made no arrangement to import it. He suspected that his Indian contact or another friend, who he identified, may have been responsible for arranging that importation. He said that if he had been approached to import the ecstasy he would not have agreed to do so.

Prior to the trial commencing, the trial Judge had ruled that, if the applicant was a party to importing and/or possessing a prohibited narcotic drug, then, even if the applicant had expected to receive and have possession of a drug of one type but received a drug of another type in addition to the drug which he expected to receive, he was 'equally guilty of importing or having possession of ... two even though ... [he] may have only expected or anticipated or believed that ... [he was] receiving or in possession of one'.

Despite this ruling, the applicant maintained his pleas of not guilty to counts 2 and 3 until after the prosecutor had concluded his opening address. Then, after taking advice from his then solicitor, the applicant elected to plead guilty to those counts. He was sentenced in respect of all four counts on 14 November 2003.

Notwithstanding his pleas of guilty, the applicant continued to maintain, for sentencing purposes, as he had always maintained previously, that he had had nothing to do with the importation of the ecstasy and that he had not known of its existence until the moment at which he opened the book containing it."

48 That remained his position before this Court. The premise underlying proposed grounds 1 and 3 of the appeal is that his version of events is compatible with his plea of guilty to counts 2 and 3 and, subject to proper proof, can properly be taken into account in sentencing.

49 A plea of guilty is an admission of all the material facts necessary to constitute the offence and negates all possible defences. Accordingly, it is necessary to determine whether the applicant's version is compatible with his guilty pleas. I note the pre-sentence report records a statement by the applicant that appears to undermine his version of events. However, it is appropriate to approach this question on the assumption his version is accepted.

50 The Crown's position can be simply stated. It says it is not an element of the offences of possession or attempting to have in his possession in counts 2 and 3 that the applicant had knowledge of the type (or quantity) of drug the subject of the charge, it being sufficient to prove that the applicant knew that the goods in his custody were, or were likely to be, narcotic goods.

51 The question of what is required to prove a breach of the importation and possession provisions of s 233B of the Act has been addressed by the High Court in a number of cases, including He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523; Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502; Saad v The Queen [1987] HCA 14; (1987) 61 ALJR 243. I accept these cases can be read as authority for the Crown's proposition, although I note Gibbs CJ in He Kaw Teh said (at 538) the Court in that case was not concerned with the situation in which the accused knew the substance was a drug but not that it was the kind of drug mentioned in the charge.

52 What emerges from the authorities is that in respect of both the importation and possession offences in s 233B, the Crown has to prove that the accused acted with mens rea, that is to say, a guilty mind. In particular, for the importation charge the subject of count 1 the Crown had to prove that the applicant had an intention to import narcotic goods into Australia; in relation to count 2, that the applicant had an intention to have possession of narcotic goods; and in relation to count 3, that the applicant had an intention to have possession of narcotic goods or perhaps, more correctly, an intention to have possession of goods which he believed to be narcotic goods (which is why this was an attempt charge).

53 I am aware that the Criminal Code Act 1995 (Cth) applies to the charges the subject of the indictment and that the general principles of criminal responsibility set out in Ch 2 of that Act identify the "fault elements" that must be established for Commonwealth offences. However, no-one has suggested that the Code has materially altered the law as stated by the High Court and I proceed on the assumption it has not.

54 The existence of intention is a question of fact and in most cases the outcome will depend on inferences to be drawn from proven facts. When it is necessary to show that a person had an intention to have in his possession a narcotic drug, intent is established if the person knew that an article in his possession comprised or contained a narcotic drug: Saad (supra) at 244. For the purposes of this analysis, I assume it is not necessary to prove an intention to possess a particular type of drug. Accordingly, if an accused knows that a package contains drugs but does not know what type of drug (or how much) or does not know all the types of drug in the package, he has an intention to possess the whole sufficient to prove separate charges for each type of drug contained in the package. But that is not the situation on the applicant's version of the facts in this case. He goes beyond simply asserting he did not know that ecstasy was in the satchel sent to him from India. On the applicant's version, his expectation was, and to his knowledge, the package would contain only cannabis. The distinction is between lack of knowledge of the type of drug in the package as against positive knowledge and an intention to have (only) cannabis in his possession. That knowledge is sufficient to justify an inference of intention to import a narcotic good which was in fact cannabis. However, that intention applies to the whole of the narcotic goods in the package. It does not support, and in fact negatives, an intention to possess a subset of the narcotic goods in the satchel which comprises narcotic goods of a type different from that which he expected or intended. Even if this analysis is incorrect, his version of events would, if accepted, constitute a reasonable excuse, proof of which lies on him under s 233B(1)(c) of the Act: see He Kaw Teh (supra) at 575 - 576 per Brennan J.

55 For these reasons, I am of the opinion that the version of events on which the applicant sought to rely in sentencing is inconsistent with his plea of guilty to counts 2 and 3. In those circumstances the sentencing Judge did not err in failing to make findings concerning the applicant's version. As the Crown did not prove that the applicant knew he was in possession, or attempted to be in possession, of ecstasy, it was appropriate for the Judge to sentence the applicant for possession and attempted possession of narcotic goods which were in fact ecstasy.

56 I am also satisfied that there is no merit in proposed grounds 2 and 3 for the reasons given by McKechnie J. The remaining issue is whether the sentence was manifestly excessive. The Crown correctly conceded that the sentencing Judge erred in imposing a sentence of 7 years for count 2. As this sentence was ordered to be served concurrently with the sentences imposed on counts 1 and 3, the error is of no practical consequence. However, I agree with McKechnie J that it should be reduced to 2 years. The central question is whether the sentence of 7 years for ground 3 (and, thus, the head sentence) is manifestly excessive. The amount involved was 159.4 grams of pure ecstasy, less the amount of pure ecstasy the subject of count 2. The offence in count 3 was that of attempting to possess narcotic goods which had been imported into Australia. The majority of the authorities referred to by McKechnie J in his reasons concern sentences imposed for importing narcotic goods in breach of s 233B(1)(b) of the Act. However, sentences imposed for importation offences are relevant in assessing whether the sentence for attempted possession is manifestly excessive. It is also appropriate to consider sentences imposed under the Misuse of Drugs Act 1981 (WA) for drug-trafficking, being the offence of possession with intent to sell or supply (as to which see R v Hafner [2002] WASCA 211; Tulloh v The Queen [2004] WASCA 169). I have also had regard to sentences imposed in this jurisdiction for breach of s 233B(1)(c), including Festus v The Queen [2002] WASCA 25 and Marlan v The Queen [2003] WASCA 184.

57 Proven knowledge of relevant matters, including the type and quantity of drugs the subject of the conviction, is generally an aggravating factor and particularly so if it enables a court to draw adverse inferences about the nature and extent of the person's involvement in the illegal drug chain. However, on my reading of the sentencing authorities for s 233B offences, many of the sentences do not reflect proven knowledge of the type or quantity of drug the subject of the charge. I am not persuaded that a sentence of 7 years for attempting to possess 241 grams of ecstasy is outside the range of permissible sentencing discretion.

58 Having regard to the relevant authorities, the need for consistency and the plea of guilty to all charges, I am not persuaded that the sentence imposed for count 3 or the head sentence is manifestly excessive.

59 I would grant leave to appeal, set aside the sentence of 7 years' imprisonment for count 2 and, in lieu thereof, impose a sentence of 2 years' imprisonment to be served concurrently with the sentence imposed for counts 1 and 3 and otherwise dismiss the appeal.

Harris v The Queen [2004] WASCA 292

At a glance

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Judgment (123 paragraphs)

Harris v The Queen [2004] WASCA 292 (8 December 2004)

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Legislation Cited (3)

Cases Cited (6)