R v Adams [2007] VSCA 37

2 The applicant, a United States resident, was found guilty, on 10 September 2004, by the jury empanelled on his trial in the County Court at Melbourne on one count of possessing a commercial quantity of the narcotic substance MDMA,[1] contrary to paragraph 233B(1)(c) of the Customs Act 1901.

3 He admitted three prior convictions from two court appearances in the United States Superior Court, Bergen County, New Jersey, between 15 February 1979 and 15 December 2004. They related to the possession and distribution of varying small quantities of a controlled substance (marijuana).

4 After hearing a plea in mitigation of penalty, the sentencing judge, on 27 September 2004, imposed a term of imprisonment of nine years, in respect of which a non-parole period of seven years was fixed.

The Grounds

5 The application is based upon the grounds set out in the applicant's Full Statement of Grounds that:

1. The sentence in all the circumstances of this case was manifestly excessive.

2. The trial judge erred in usurping the role of the jury and sentencing the applicant on his own finding of the facts in the case.

3. The trial judge erred in characterizing the applicant's role as being more important than it was and in finding that the applicant was more deeply involved in the criminality than was

4. The trial judge erred in equating the drug ecstasy with heroin for sentencing purposes.

5. The trial judge erred in not giving sufficient weight to the hardship upon the applicant's family being overseas and that the applicant was alone in the foreign country.[2]

The Background

6 On 14 December 2003, a man named Peter Gojevski ("Gojevski") arrived in Melbourne from the USA. His visit was connected with the importation of two hired "Envirotainers".[3] An elaborate set of e-mails was sent from overseas to various enterprises in Melbourne to support the pretext that the containers had been sent to establish a business involved in the import and export of energy drinks. They were said to be needed for the export of the product and that shelves were to be fitted for that purpose. However, concealed in the floor of one of them was a substantial quantity of ecstasy.

7 The first of the containers was delivered to a factory in Bayswater that had been leased by persons overseas.

8 The second container arrived in Melbourne from Amsterdam, on 13 December 2003. The sentencing judge accepted that Gojevski's purpose for coming to Australia was to ensure that this container was safely delivered to the Bayswater factory and the drugs removed from it. However, for some reason he was not able to locate it and left Melbourne, on 23 December, to return to the USA.

9 The prosecution claimed that the applicant came to Melbourne as a replacement for Gojevski. He had, in his possession, "Envirotainer" specifications that included handwritten references to a drill bit of a size that could be used to remove rivets in the container floor. There would seem to be no reason to doubt that the applicant was sent to Melbourne to receive the second container and to arrange for the extraction of the ecstasy concealed beneath its floor. He successfully carried out part of this assignment, locating and arranging for its delivery to the Bayswater factory. These activities were however being monitored by the Australian Federal Police and both the applicant and the factory premises were then placed under surveillance.

10 On the morning of 9 January 2004, Federal Police officers identified themselves to the applicant and asked him about his presence in the vicinity of the factory. Clearly reacting to their interest in what was happening there, instead of removing the drugs, he left the area and, on his account, went shopping. He also made several telephone calls to an individual, named Bloomquist, in the USA, who had engaged him, ostensibly to fit shelves into the container. Later that day, the applicant was arrested at his hotel.

11 The second "Envirotainer" when examined was found to contain 102,315 tablets in varying colours and motifs. Subsequent analysis of these tablets established that their total net weight was 19.927 kilograms and that they contained MDMA (ecstasy) varying between 43.6 and 48.6 per cent in purity. The total weight of pure MDMA was estimated at 8.916 kilograms, placing the wholesale value of the consignment at not less than $1.22 million.

12 The applicant asserted in evidence in the trial that the sole purpose of his visit was to fit four shelves inside the container and that he had no knowledge of the presence of drugs.

The Application

Grounds 2 and 3

13 In response to the contention by counsel appearing on behalf of the applicant, that his client's role should be viewed as akin to that of a courier, the sentencing judge described his involvement as more than that, forming the view that he must have been involved at a higher level in the operation. As I have mentioned, the applicant had claimed that he was unaware of the presence of any drugs and had been engaged simply to fit shelves. It is, of course, hardly a matter of surprise that this quite implausible claim was rejected by the jury, it is only slightly less implausible that he would have been sent from the USA for the single purpose of removing some rivets and taking out the hidden drugs to be handed to some third party. It must also be remembered that the applicant was entrusted with ecstasy tablets worth more than a million dollars. The inference that he played a "significant role" in the operation and that he was to receive more than a free six day holiday trip to Australia for engaging in what he must have appreciated was an inherently risky exercise was, in my view, not only open to the judge in the circumstances but virtually irresistible. His Honour's finding with respect to the applicant's role was in no respect in tension with the jury verdict.

14 These grounds lack substance.

Ground 4

15 In his sentencing remarks, his Honour stated -

"The serious nature of your offending is indicated by the maximum penalty of life imprisonment that has been prescribed by the legislature. In general terms the courts equate ecstasy, in terms of sentencing, as being similar to heroin. ... The deterrence of you and more importantly, of others who might be tempted to be involved in the drug trade, is the primary sentencing consideration."[4]

16 The complaint is advanced under this ground that, in so approaching the matter, he fell into error. His Honour handed down sentence in this matter before the judgment of this Court in R v Pidoto and O'Dea[5] and the statement above is, in its terms, understood in the light of the later decision, unassailable.

17 Unable to challenge in this proceeding the correctness of the approach adopted in Pidoto and O'Dea, although he submitted that it was wrongly decided, counsel for the applicant in this Court, in written submissions, challenged the Crown contention that the reasoning on which it rests applies mutatis mutandis to the Commonwealth Customs Act offences to which the applicant has pleaded guilty. However, he has not been able to advance any argument capable of supporting his claim.

18 The Crown position on this aspect is encapsulated in their written submissions as follows -

"As with the Drugs Poisons and Controlled Substances Act 1981 (Vic), the Customs Act 1901 distinguishes between drugs in prescribing the threshold trafficable and commercial quantities, but otherwise, and with one exception, makes no distinction as to the applicable maximum penalties. The exception, which is of no relevance to this appeal, is that in the case of an offence against section 233B involving a trafficable (not commercial) quantity of cannabis, a lesser maximum penalty is prescribed, see section 235(2)(d). It is to be noted that this exception has not been continued in the new Code provisions_._

Further, it is submitted an historical examination of the legislative provisions in the Customs Act supports the approach of R v Pidoto and O'Dea. At the time of this offence (9 January 2004) the relevant provisions had been in force in substantially the same terms since 1979. The previous incarnations of the provisions were examined by Tadgell J in Zeccola.

There is nothing in the historical development of the relevant provisions to indicate an interpretation other than that advanced in R v Pidoto and O'Dea. Lest it be suggested the provisions are ambiguous, there is also nothing contained in any of the explanatory memoranda or Hansard to detract from this view. To the contrary, in not distinguishing between different drugs (apart from on a quantitative basis and in relation to a trafficable amount of cannabis as referred to above), Parliament can be seen to have regarded all drugs, qualitatively, as the same. That is, all other things being equal an offence involving a commercial quantity of drug A is equally serious as an offence involving a commercial quantity of drug B and warrants equal punishment.

A number of cases referred to by the Court in R v Pidoto and O'Dea in support of its approach, were cases concerning the Customs Act provisions. In particular, R v Casey, R v Poon, Zeccola; and R v Mandala.

Further, since R v Poon, Courts of appeal in New South Wales and Western Australia have generally accepted that the approach in R v Pidoto and O'Dea applies in relation to the Customs Act provisions. In particular in New South Wales see R v Simon, R v Kevenaar, R v Neale, R v Nguyen, Pham, Vu and Pui and R v Z, and in Western Australia see Harris v R... ."[6]

19 It is, I think, sufficient to state - I agree.

20 The central proposition advanced by counsel under this ground was that the judge was not applying Pidoto and O'Dea reasoning in any event, but mistakenly asserting that sentencing judges were attributing the same level of seriousness to the possession of the drug ecstasy as they did to that of heroin, when that was not the case.[7]

21 If his Honour's words were to be interpreted in the manner for which counsel contends, the correctness of his assessment of the view of the Courts, in so far as one has developed and can be ascertained from the known decisions concerning the dangerousness of this particular drug, is debateable. In any event whether or not he was correct, his conclusion as to the proper way to deal with the matter clearly was, and accordingly, his personal perceptions cannot be seen to have led to the imposition of an inappropriate sentence in the circumstances.

22 This ground must fail.

Ground 1

23 In support of the contention that the sentence imposed upon the applicant was manifestly excessive in the circumstances reliance was placed upon the following matters:

(a) What was claimed to be his "essentially" previous good character. He had three prior convictions in the USA relating to the possession of small quantities of marijuana.

I note that the sentencing judge referred to those convictions as having "limited relevance in the present context".[8] His Honour directed attention to the applicant's background, including his family and employment history and a number of favourable references concerning his character that had been tendered on his behalf.

(b) His limited role in the importation of the drug concerned.

This aspect has been considered earlier and need not be further addressed.

(c) The additional hardship to which the applicant will be subject when undergoing a sentence of imprisonment far from his home and family.

"It appears likely that as a result of your imprisonment on this conviction, you and your wife will be forced to sell your matrimonial home. Your mother has written to the court and she reports that the life of your father is seriously threatened by cancer. You fear that he could die before your return to New Jersey.

...

Your imprisonment is likely to be served in Australia and that will impose additional hardship on you. Your family and friends will not be able to visit."

"To some extent, that is part of the price that you pay for your decision to visit this country for a short period of time to commit very serious offending and then return to the relative safety of New Jersey."[9]

24 To my mind, it would be incongruous to have regard to the separation of an offender from his family and friends in his home country as constituting a basis for the reduction of penalty in a case where the person has come to this country for the

sole purpose of committing a very serious crime here.

25 The sentence imposed upon the applicant was substantial, but it must not be forgotten that he was found in possession of a very large quantity of drugs. He had come to this country for the precise purpose of securing them, and in the context of a serious criminal enterprise. Whilst his level of involvement in that enterprise could not be clearly determined, the judge justifiably concluded that his role could not be viewed as akin to that of a courier and was more substantial. His Honour appropriately emphasized the importance of general deterrence as a sentencing consideration in cases of this kind. It is apparent from his sentencing remarks that he directed attention to all of the relevant sentencing principles and factual considerations in the determination of an appropriate sentence, making specific reference to each of those relied upon in this Court. I do not detect any error in his approach to any of them, save perhaps his understanding of the view of the Courts at that time of the relative seriousness of offences involving ecstasy and heroin and, as I have indicated, I do not consider that any such misunderstanding may have led to the imposition of an inappropriate or manifestly excessive sentence.

26 It follows from the above that I would dismiss this application.

27 I agree with Vincent JA, for the reasons that his Honour gives, that the application for leave to appeal should be dismissed.

28 Subsequent to the hearing of this matter, counsel for the applicant contacted the Court, indicating that no reference had been made to an application by him for leave to add a further ground of appeal, namely:

8. The sentence imposed upon the applicant breaches the principle of parity and leaves the applicant with a legitimate and

justifiable sense of grievance when his sentence is compared to the sentences imposed upon Chouster and May.

29 Perusal of the video recording of the proceedings before this Court makes clear that Mr Boyce did present submissions in support of this application which, regrettably, have not been addressed to date. He argued that, when a comparison is made between the sentence imposed upon the applicant and those handed down upon two other persons, May and Chouster, who were involved in a roughly similar way in the criminal activities of which the particular importation was a part, his client was entitled to a legitimate sense of grievance.

30 In these circumstances, it has been considered necessary, in the interests of justice, for the Court to reconvene and to afford Mr Boyce the opportunity of presenting any further submissions that he may have considered necessary. He has, however, stated that he was prepared to rely upon the material advanced at the time of the earlier hearing.

31 Chouster was sentenced[10] after the applicant and May, and I observe that, in his sentencing remarks, the judge before whom he appeared directed attention to what had occurred in their cases, making comparisons between their respective situations.

32 Chouster's role was described as that of a facilitator, engaged in the unloading from an "Envirotainer" of a large quantity of tablets containing MDMA. He had admitted that he had travelled to Melbourne from Canberra on the day of the offence for this purpose and, the judge found, acted "as the point of contact for others involved in the operation". Chouster, in common with the applicant, pleaded not guilty, but at the trial contested only the Crown claim that he knew of the presence of the drugs in the container.

33 The judge, when sentencing Chouster, stated:

"In sentencing you, I take into account your age; that at the age of 26 you are serving a sentence of imprisonment for the first time. I take into account also your limited and short involvement in the offence, which consisted of the activities over the course of one day. I take into account also your modest prior convictions, and that with the support of your parents your prospects for rehabilitation are favourable. I take into account also that the manner in which the trial was conducted, which was expeditious by reason of the fact that you co-operated with the authorities by making extensive admissions culminating in the trial of a single issue only, and thus you save the community the expense of a more protracted trial. I must, however, also take into account the nature and gravity of the offence here committed which, despite your limited role is nonetheless a very serious offence involving a large amount of ecstasy with the value between four and a half and seven point eight million.

Whilst I am satisfied by reason of the scale of the operation, its value and your role in it, that a sentence of imprisonment is the only appropriate disposition in all the circumstances of the case, and I make that declaration pursuant to s.17 of the Commonwealth Crimes Act, I take into account also the need to pass a sentence which will serve to punish you and act in denunciation of your conduct, and specifically deter you from re-offending, and signal to like-minded members of the community that they can expect salutary punishment if they engage in the illicit drug trade at any level.

Accordingly, having due regard to parity of sentencing with your co-offenders, in particular that of May, and taking into account all factors which go in your favour without in anyway diminishing the nature and gravity of the offence here committed, you are convicted and sentenced to five and a half years' imprisonment with a non-parole period of three and a half years."

34 As I have indicated, May was sentenced after the applicant by a third judge. He pleaded guilty to one count of attempting to possess a prohibited import. With respect to his role, the sentencing judge made the following findings:

"By acting as a link in the importation chain, you were facilitating the importation of these drugs into Australia. You were prepared to run the risk of damaging or even destroying the lives of people you have never met. I consider you to be in the mid to lower end of the importation process. I accept you had no idea of the quantity of the Ecstasy being imported or the value of same. I also accept that you have received no financial benefit from your criminal conduct although the court was told you expected to be rewarded for your assistance."

Addressing the question of parity with the applicant, his Honour stated:

"Steven Adams was sentenced to nine years' imprisonment with a non-parole period of seven years. In distinction to yourself, Adams pleaded not guilty and a trial consisting of some two or so weeks was conducted. You have saved the community the time and expense of such a trial and that is to your credit and will be reflected in this sentencing disposition.

The court was provided with a copy of His Honour Judge Duckett's sentencing remarks [I interpolate that Judge Duckett sentenced the applicant] and it would appear that Adams was a far more active participator in the importation process."

"You will not be treated as a distributor or primary importer of the Ecstasy when considering the drug hierarchy but rather as a facilitator engaging in the unloading of drugs.

...

In arriving at the sentencing disposition, I consider amongst other matters those raised by s.16A of the Commonwealth Crimes Act. I take into account your lack of prior convictions and I note it as being said that a clear record has less significance in a drug matter when compared to other forms of criminal activity. The courts have said that, 'very frequently those selected to play some part in a chain of drug trafficking are selected because of their record. Their past and their lifestyles are not such as to attract suspicion, it is this in particular which has led courts to take in cases of drug trafficking a view that does not involve a degree of leniency being extended to first offenders.' In this case I note you were not charged with trafficking or importation but rather with attempting possession of prohibited imports being Ecstasy.

I take into account your plea of guilty as an indication of remorse. I consider your rehabilitation prospects to be excellent and I would not expect you to re-offend in this manner again. This is a large importation of Ecstasy. Keeping in mind what I accept as your position in the drug hierarchy and accepting that you were unaware of the size of the importation, the following sentence reflects such considerations."

This offender was sentenced to six years' imprisonment with a non-parole period of three-and-a-half years.

35 It is evident that all of the judges involved in this matter approached their tasks with considerable care. Those imposing sentence upon Chouster and May were, in particular, concerned to ensure that the principle of parity of treatment was

given full effect. As we have earlier decided, the sentence imposed upon the applicant was not manifestly excessive in the circumstances. Each of the later sentencing judges directed attention to the fundamental importance of parity in sentencing similarly circumstanced offenders and each identified the similarities and distinguishing features in their situations, which they reflected in the sentences imposed.

36 I am far from persuaded that the differentiations effected could give rise to any reasonable sense of grievance in the mind of the applicant or that of an impartial observer.

37 Accordingly, I have formed the view that the proposed ground 8 lacks substance. I would nevertheless grant leave to add it, but then dismiss it.

We grant leave to add a ground of appeal as follows:

"8. The sentence imposed upon the applicant breaches the principle of parity and leaves the applicant with a legitimate and justifiable sense of grievance when his sentence is compared to the sentences imposed upon Chouster and May."

Otherwise we confirm the order which was made on 15 March 2007.

[1] This drug is more generally known as ecstasy.

[2] To further grounds (6 and 7) were not addressed and need not be pursued.

[3] An "Envirotainer" is a type of temperature controlled freight container.

[4] Sentence T25.

[5] [2006] VSCA 185.

[6] R v Pidoto and O'Dea [2006] VSCA 185; Zeccola (1983) 11 A Crim R 192; R v Casey [2002] VSCA 117; R v Poon (2003) NSWLR 284; R v Simon [2003] NSWCCA 147; (2003) 142 A Crim R 166; R v Kevenaar [2004] NSWCCA 210; (2004) 148 A Crim R 155]; R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493]; R v Nguyen & Ors [2005] NSWCCA 362; (2005) 195 FLR 1; R v Z [2006] NSWCCA 342; and Harris v R [2004] WASCA 292; (2004) 150 A Crim R 509.

[7] In this context, the Court was referred to a number of cases in which judges had either directly or indirectly adverted to their understanding of the relative dangerousness of these drugs. See R v Carey [1998] 4 VR 13 at 17-18; R v Tan [2005] VSCA 54; (2005) 152 A Crim R 397 at [16]; R v Howden [1999] VSCA 130; (1999) 108 A Crim R 240 at [20]; Zeccola (1983) 11 A Crim R 192 at 193; R v Mandala [1999] VSCA 159 at [24]; R v Casey [2002] VSCA 117 at [27]; R v Poon (2003) NSWLR 284 at [41]-[43]; R v Simon [2003] NSWCCA 147; (2003) 142 A Crim R 166 at [6]; R v Kevenaar [2004] NSWCCA 210; (2004) 148 A Crim R 155 at [112]- ; ; at ; ; at - ; at ; ; at ; and at pp17-18.

[8] Sentence T22.

[9] Sentence T25-26.

[10] Chouster was sentenced on 29 July 2005 by her Honour Judge Curtain while May was sentenced on 21 February 2005 by his Honour Judge White.