Promulgating a Guideline
114 In Jurisic and Henry, the Court referred to a number of different reasons for promulgating a sentencing guideline. This analysis drew on the experience in other jurisdictions, particularly England and Canada, in this respect.
115 The Crown submitted that a guideline judgment was required by reason of an apparent increase in the incidence of the offences. Prevalence has long been accepted as a factor justifying an upward revision of sentences. A guideline judgment is one means of achieving such a result.
116 The Crown relied on crime statistics for the proposition that the crime of importation of drugs was increasing. The two sources of crime statistics relied on were police data and victim surveys. The Crown submitted these statistics demonstrated an upward trend in the reported incidence of drug importation. This trend justified the promulgation of sentencing guidelines as a measure of general deterrence.
117 The Crown conceded the inherent weaknesses of the statistics, particularly the data relating to the seizure of narcotics, which is influenced by the resources allocated to that task. The data is limited in its capacity to confirm the increased incidence, or otherwise, of the importation of heroin and cocaine.
118 The NSW Recorded Crime Statistics 1995-1998, prepared by the Bureau of Crime Statistics and Research, show that the number of separate incidents of the offence of imported drugs fluctuated as follows: 1995 (11); 1996 (9); 1997 (39); 1998 (25). The data does not permit any reliable conclusion as to increases in importation. The process of detection of imports is too haphazard. The figures themselves are equivocal.
119 The Australian Illicit Drug Report 1997-1998, prepared by the Australian Bureau of Criminal Intelligence, provides a more thorough analysis. The principal findings of this report, on which reliance was placed by the Crown, are concerned with the quantity of heroin and cocaine detected or seized Australia-wide. The quantity of these drugs identified in customs border detections fluctuates considerably from year to year. This makes interpretation difficult. Fluctuations may have a random quality in terms of skill and luck in detection. They may also reflect increased resources or greater efficiency, rather than increased importation.
120 In the case of heroin, the quantity so detected appears to be greater in the second half of the 1990's, than in the first half. In the case of cocaine, after a fall in the mid 1990's, there appears to be an increase in recent years.
121 As noted these statistics may not reflect an increase in quantity being imported. The changes suggested by this data are not so dramatic, nor have they been sustained over a sufficiently long time, to suggest anything in the nature of a significant trend requiring a new response by the courts. This is not to understate in any way the significance of the crime or its prevalence. However, the changes identified in the Crown submissions do not of themselves indicate the need for a new sentencing pattern.
122 The victim surveys relied upon by the Crown (The National Drug Strategy Household Survey conducted by the Australian Institute of Health and Welfare in 1998, and survey responses documented in W. Hall "Methadone Maintenance Treatment as a Crime Control Measure" (1996) 29 Crime and Justice Bulletin 1), provide estimates of heroin use, and indicate the close connection between heroin use and crime. They highlight an endemic socio-economic problem: a spiral of drug dependence feeding crime, and vice versa. These surveys confirm the significance of the drug problem in our society.
123 This material does not warrant any cause for complacency on the part of the courts in performing their task to punish and deter those involved in these crimes. There is no warrant for any slackening on the part of the courts. Nor, however, is there a demonstrated need for a significant alteration in response on the part of the courts.
124 In my opinion, it is appropriate for this Court to promulgate a comprehensive quantitative guideline for an offence for which a relevant guideline has long existed and, it appears, has proved to be of utility to sentencing judges throughout Australia. I refer, of course, to the Ferrer-Esis guideline. This step is particularly appropriate where, as in this case, some differences have emerged with respect to the interpretation of that pre-existing guideline.
125 There are two additional reasons for promulgating a quantitative guideline with respect to the offence presently under consideration: First, by providing guidance to trial judges it is less likely that sentences will be imposed which suggest a need for appellate review. Secondly, the clear promulgation of likely actual sentences will assist the objective of general deterrence.
126 One of the functions performed by the promulgation of sentencing guidelines is that of deterrence. Potential offenders should know in advance that offences of a particular kind are likely to lead to a particular level of sentence. The publication of maximum sentences does not perform a substantial deterrent function, as the relationship between maximum sentences and actual sentences is not sufficiently clear. This is plainly the case with respect to offences against s233B where, in the case of trafficable quantities, the maximum is expressed to be a fine not exceeding $100,000 or imprisonment for twenty-five years and, in the case of commercial quantities, is expressed to be imprisonment for life. The very scope of the range impedes the published maximum having a deterrent effect.
127 There are significant differences of opinion as to the deterrent effect of sentences, particularly, the deterrent effect of marginal changes in sentence. Nevertheless, the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter.
128 Deterrence only works to the extent to which knowledge is transmitted to potential offenders about actual sentencing practice. Guideline judgments are a mechanism for increasing the efficiency of the transmission of such knowledge. Deterrence is an appropriate basis for promulgation of a guideline. (See Henry at [41] and [205] - [211]; Police v Cadd (1997) 94 ACrimR 466 at 511; and my address "Sentencing Guideline Judgments" 11 CICJ 5 at 10-11; 73 ALJ 876 at 880-881).
129 There are numerous statements in judgments of Courts of Criminal Appeal throughout Australia which emphasise the role that general deterrence must play in the determination of the level of sentences for offences against s233B. Courts have frequently cited with approval the following observations of Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 399:
"On the other hand the deterrent aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it. When an organised, costly and complex offence is contemplated the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate. Those who deliberately choose to run the risk of punishment in order to acquire a profit from the venture cannot point to mitigating circumstances of the sort which stand the chance offender in good stead. The extent to which the sentence recedes from maximum cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition."
130 The legislature has made it clear, in providing for a gradation of penalties in the three relevant cases - less than a trafficable quantity, trafficable quantity and commercial quantity - that the amount of drugs is an important consideration in the sentencing exercise. This would in any event be suggested on the basis of first principles. The primary object of sentencing is the protection of the community. The adverse effects of drugs such as heroin and cocaine on the community are directly related to the quantity of drugs available in the community. Accordingly, quantity is an exceptionally important aspect of the objective seriousness of the crime.
131 Notwithstanding the significance of quantity, it is not determinative of the appropriate sentence. Other aspects of the crime, including objective and subjective considerations, remain relevant in the exercise of the sentencing discretion. One factor which arises in the course of contraventions of s233B is the role of the accused in the organisation, if any, which imports the drugs into Australia.
132 The courts have consistently refused to treat couriers, or other persons who are low in the hierarchy of organisation involved in drug importation, with the leniency which is sometimes appropriate in the case of other offences, to distinguish principals from persons of a lesser role. (See Le Cerf (1975) 13 SASR 237 at 239-240; R v Muanchukingkan (1990) 52 ACrimR 354 at 356; Laurentiu (1992) 63 ACrimR 402 at 417-418; R v Thiagarajah (1989) 41 ACrimR 45 at 49; R v Budiman (1998) 102 ACrimR 411 at 413-414).
133 Nevertheless, the difference in roles remains of significance for the sentencing exercise. The decision of the High Court in R v Olbrich [1999] HCA 54; 73 ALJR 1550 does not doubt the relevance of categorising an offender, although it establishes that such categorisation is not an essential part of the sentencing process.
134 The importance of quantity, as confirmed in the structure of the statutory scheme, indicates that any guideline should be structured by levels of quantum. This is, of course, how the Ferrer-Esis guideline was expressed. As I have said above, because there are considerations other than quantum relevant to the sentencing task, sentencing ranges for successive quantity ranges will necessarily overlap.
135 Other jurisdictions which have adopted guidelines for sentencing for importation of drugs have also structured the guidelines in terms of quantum. In the United Kingdom, the guideline developed over a series of cases (R v Aramah (1982) 76 CrAppR 190; R v Bilinski (1998) 9 CrAppR 327). The Court of Appeal identifies two points of reference, rather than ranges, for heroin and cocaine:
· 500 grams 10 years
· 5 kilograms or more 14 plus years
136 In New Zealand, the Court of Appeal has stated, without being precise as to quantum, that sentencing patterns suggest six to seven years for importers of heroin on a large scale (R v Urlich [1981] 1 NZLR 310; R v Stanaway [1997] 3 NZLR 129). In one case the Court accepted eighteen to twenty years as an appropriate starting point for an importation of 2 kilograms of 80% pure heroin (R v Accused [1992] NZLR 316).
137 In the present case it is appropriate to adopt a "bottom up" system of guidelines which does not contain any significant prescriptive element. This is a field in which the collective wisdom of trial judges and appellate judges of great experience, whose careful attention over many years to the proper level of sentences has, insofar as a discernible sentencing pattern has emerged, created the foundation for a more specific articulation of such patterns. As Sir Garfield Barwick put it in Griffiths v The Queen (1977) 137 CLR 293 at 310, after noting the appropriateness of a Court of Criminal Appeal seeking to achieve consistency in the sentences imposed by trial judges:
"The views of those whose daily, or almost daily, task is the sentencing of prisoners must command respect.
138 Similar observations were made in Bernier as quoted above.
139 In the present case the importance of the sentencing pattern is reinforced by the narrowness of the focus of the Crown submissions in the present case, on sentences with respect to s233B of the Crimes Act (Cth). Trial judges have a relevant body of experience with respect to the sentencing of offenders under cognate State statutes. I use the word "cognate" to indicate that the consequences of trafficking drugs, and the nature of the criminal organisations involved in such trafficking, does not differ in principle in cases of seizures at the border, (prosecuted under the Commonwealth Act), and domestic seizures (prosecuted under State Acts). Whilst different considerations arise in the context of the various State regimes, there are also important common factors. The judgment of trial judges and judges in Courts of Criminal Appeal, many of whom are trial judges also, in the absence of any apparent inadequacy of outcomes, should be validated by this Court.
140 There are, of course, a range of factors identified in s16A of the Crimes Act 1914 (Cth) which are required to be taken into account in sentencing for this offence. It is not necessary to review the list of considerations which frequently arise for determination in this particular context (see eg Fox & Freiberg Sentencing State and Federal Law in Victoria (2nd ed, 1999) at pars 12.907-12.909). As indicated above, a central factor is the quantity of drugs involved. The other considerations, both objective and subjective, which usually arise for determination in this context are intended to be encompassed by the range referred to below.
141 That is not to say that in particular cases, sentences outside the range would not be appropriate. It will frequently be the case, for the reasons already referred to, that a substantial degree of assistance will justify a sentence below the relevant range. There may also be circumstances in which a plea of guilty is entitled to such significant weight as to justify a sentence below the range. The range is not intended to apply to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation, to whom an increment should be applied. These factors are not intended to be exhaustive of the circumstances in which sentences outside the range will not attract the close scrutiny of this Court.
142 The following guideline is intended to be non-binding in the sense explained in Jurisic and Henry. It has been determined primarily on the basis of existing sentencing patterns and is intended to apply to couriers and persons low in the hierarchy of the importing organisation.
· Low level trafficable quantity - 5 - 7 years (2gms - 200gms)
· Mid level trafficable quantity - 6 - 9 years (200gms - 1kg)
· High range trafficable quantity - 7 - 10 years 1kg - 1.5kgs (heroin) 1kg - 2kgs (cocaine)
· Low range commercial quantity - 8 - 12 years 1.5kgs - 3.5kgs (heroin) 2kgs - 3.5kgs (cocaine)
· Substantial commercial quantity - 10-15 years (3.5kgs - 10kgs)