Commonwealth drug offences

[65-100] Criminal Code offences

Commonwealth serious drug offences are found in “Serious drug offences” Pt 9.1 Criminal Code (Cth). These replaced and supplemented those offences previously found in s 233B (rep) Customs Act 1901 (Cth).

New offences were created to target pre-trafficking, possessing, importing or exporting “controlled precursors” (chemical substances used in making illicit drugs) and the trafficking and manufacture of controlled drugs. There were also new offences relating to children, including: supplying controlled drugs to children; procuring children for trafficking controlled drugs; or exposing a child under 14 years to danger or harm from drug manufacturing. Aggregation provisions enable quantities of drugs, plants, or precursors from the same occasion or different occasions (within seven days) to be combined.

The offences under Pt 9.1 Criminal Code (Cth) now include:

  • Div 302: Trafficking controlled drugs

  • Div 303: Commercial cultivation of controlled plants

  • Div 304: Selling controlled plants

  • Div 305: Commercial manufacture of controlled drugs

  • Div 306: Pre-trafficking controlled precursors

  • Div 307: Import-export offences

  • Div 308: Possession offences

  • Div 309: Drug offences involving children

  • Div 310: Harm and danger to children under 14 from serious drug offences

  • Div 311: Combining quantities of drugs, plants or precursors.

For a discussion of the rationale for the introduction of the new offences and a brief outline of relevant provisions, see Ch 2 Commonwealth serious drug offences framework in P Mizzi, Z Baghizadeh and P Poletti, Sentencing Commonwealth drug offenders, Research Monograph 38, Judicial Commission of NSW, Sydney, 2014.

Summary disposal

Commonwealth indictable and summary offences are defined respectively in ss 4G and 4H Crimes Act 1914 (Cth). Section 4J provides for indictable offences to be dealt with summarily if certain conditions are met. Unless there is provision to the contrary, offences with a maximum penalty of greater than 10 years are strictly indictable.

[65-110] The requirements of s 16A Crimes Act 1914 (Cth)

Section 16A(1) Crimes Act 1914 (Cth) requires a court to “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. This subsection does not stand alone but must be read in conjunction with s 16A(2), which obliges a court sentencing a federal offender to take into account such matters identified as are “relevant and known to the court”.

See “General sentencing principles” in Sentencing Commonwealth offenders at [16-010]. See also Ch 4 The relevant sentencing principles in P Mizzi, Z Baghizadeh and P Poletti, Sentencing Commonwealth drug offenders, Research Monograph 38, Judicial Commission of NSW, Sydney, 2014.

Johnson J summarised the relevant sentencing principles for Commonwealth serious drug offences in R v Nguyen; R v Pham (2010) 205 A Crim R 106 at [72]. That summary has been referred to with approval in Victoria in R v Nguyen (2011) 31 VR 673 at [33] and in Queensland in R v Hill (2011) 212 A Crim R 359 at [277].

The importance of deterrence

In Wong v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ held at [64] that the difficulty of detecting the offence of being knowingly concerned in the importation of heroin and the great social consequences flowing from its commission, suggest that deterrence is to be given chief weight in the sentencing task and that stern punishment will be warranted in almost every case. The majority identified other features of the offence at [64]:

Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender’s knowledge about what was being imported, the offender’s role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence.

The significance of general deterrence in the context of serious drug offences irrespective of an offender’s role and because of the pernicious nature of the drug trade has been repeatedly emphasised by appellate courts: R v Chen (2002) 130 A Crim R 300 at [286]; R v Riddell (2009) 194 A Crim R 524 at [57]–[58]; Nguyen v R (2011) VR 673 at [34]; DPP (Cth) v Bui (2011) 32 VR 149 at [38]–[39].

In very limited circumstances, such as when an offender comes forward to assist law enforcement authorities to frustrate the completion of a drug offence, deterrence may be of less significance: RCW v R (No 2) (2014) 244 A Crim R 541 at [74]. In such circumstances the offender should be sentenced “to provide an example of what might become of someone who has the good conscience to come forward and assist … in order to thwart serious criminal activity”.

Non-custodial sentences for drug importation must be restricted to truly exceptional cases: R v Wong and Leung (1999) 48 NSWLR 340 per Spigelman CJ at [104]; R v Fabian (1992) 64 A Crim R 365 per Sully J at 376.

[65-130] Objective factors relevant to all Commonwealth drug offences

For a discussion of the use of appellate cases and statistics in sentencing for drug offences, see Special Bulletin 9 — November 2015 The Queen v Pham [2015] HCA 39 and Special Bulletin 10 — December 2015 Post The Queen v Pham (2015) 90 ALJR 13 appellate cases. The latter Bulletin has a collection of intermediate appellate cases for importing a marketable quantity of a border controlled drug which has regard to The Queen v Pham (2015) 256 CLR 550.

Quantity and purity of drug

While Parliament distinguishes between the maximum sentence that may be imposed for both Commonwealth and State offences on the basis of quantity, for Commonwealth offences the relevant quantity refers to the pure weight of the narcotic: R v King (1978) 24 ALR 346.

The lists of applicable trafficable, marketable and commercial quantities for each type of border controlled, or controlled, drug are set out in the Criminal Code Regulations 2019 (Cth): see Pt 3, Div 1 and Schs 1 and 2. The amounts for Commonwealth drug offences are based on the pure amount of the drug.

In Wong v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ held that the Court of Criminal Appeal erred in offering a grid founded entirely on the gravity of the offence, as measured only by the weight of narcotic concerned and against which future sentences were to be judged: at [71]. The starting point given by the Court of Criminal Appeal was based on the false premise that the gravity of the offence can usually, or perhaps even always, be assessed by reference to the weight of the narcotic involved: at [73]; see also Kirby J at [135].

The matters properly taken into account in fixing a sentence include the quantity of the drug involved, the offender’s knowledge and role in the importation and the offender’s anticipated reward from participating. Weight is not the chief factor to be considered in fixing a sentence: Wong v The Queen at [67]ff.

Both Parliament and the courts have eschewed the approach that penalties should be proportional to quantity: R v Doan (unrep, 27/9/1996, NSWCCA); R v Postiglione (1991) 24 NSWLR 584; R v Schofield (2003) 138 A Crim R 19. In R v Vo (2000) 118 A Crim R 320, Wood CJ at CL said at [32]:

Error can enter into the sentencing process if an attempt is made thereafter to graduate sentences by some mathematical exercise referable to the precise quantity involved or known by the offender to have been imported.

However, that there is some relationship between the quantity of drug involved in the offence and the sentence ultimately imposed is reflected by the statement of the majority in Wong v The Queen at [64]:

In general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.

See also: Tyn v R (2009) 195 A Crim R 345 at [28]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [307]. In R v Nguyen (2005) 157 A Crim R 80 at [110], Howie J concluded that in an appropriate case the quantity involved might place an offence in the worst case category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256). His Honour’s approach was endorsed by the WA Court of Appeal in Sukkar v R (No 2) (2008) 178 A Crim R 433 at [46].

In Wong v The Queen at [68], the court recognised that not all offenders involved in importation of narcotics will know or even suspect how much pure narcotic is being imported but the size of an importation has increased significance when an offender does have some knowledge of the quantity involved.

In addition, as Greg James J observed in R v Soonius (unrep, 29/5/98, NSWCCA) in referring to reliance being placed upon quantity alone:

The very provisions of the Crimes Act 1914, and in particular s 16A, speak against such a simplistic approach. The quantities involved must be considered along with all the matters to which a court’s attention is directed by the Act and by principle.

Importing more than one border controlled drug

Whether importing more than one kind of border controlled drug on the same occasion significantly increases the overall criminality of the offending conduct depends on the facts of the particular case. Some degree of accumulation is not necessarily required where the importation of more than one type of drug is the subject of separate counts. The guiding principle is to ensure the total effective sentence properly reflects the overall criminality involved in all the offences: MEG v R [2017] WASCA 161at [22].

Prohibition on harm-based categories

Any attempt to rank the seriousness of narcotics either under the Customs Act 1901 (Cth) or the Criminal Code (Cth) is inappropriate. In Adams v The Queen (2008) 234 CLR 143, Gleeson CJ, Hayne, Heydon, Crennan and Kiefel JJ stated at [10]:

… Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme.

The High Court in Adams v The Queen rejected the appellant’s assertion that he should have been sentenced on the basis that MDMA was less harmful than heroin: at [9]–[10].

In R v Corbett (2008) 181 A Crim R 522 (decided before Adams v The Queen), the sentencing judge erred by concluding that “GBL is a drug of a lesser order than the so called ‘hard drugs’”: at [4]. The many border controlled drugs and quantities listed in s 314.4 Criminal Code (Cth) “are only connected by the common thread of legislative proscription”: at [45]. Harrison J stated at [47]:

Except by reference to quantity, there would appear to be no scope for judicial or forensic enquiry about the individual characteristics of any of the listed substances. For example, even with the benefit of the most highly respected expert opinion that listed substance “A” is socially, pharmacologically, or in every other relevant way wholly benign or alternatively exceedingly dangerous, there does not appear to be a legitimate avenue for the use of that information to inform the sentencing discretion or to substantiate a submission.

Notwithstanding these statements of principle, recent analysis of the sentences imposed for offences involving different types of drugs suggest that there is some difference of treatment, in terms of the sentence imposed, based on drug type. See Ch 6 Sentencing patterns for the period 2008–2012 in particular at 6.3.11–6.3.12 in P Mizzi, Z Baghizadeh and P Poletti, Sentencing Commonwealth drug offenders, Research Monograph 38, Judicial Commission of NSW, Sydney, 2014. See also DPP (Cth) v Maxwell (2013) 228 A Crim R 218; R v Hill (2011) 212 A Crim R 359.

Role of offender and level of participation

In order to determine an offender’s culpability in an importation offence it is essential for the sentencer, if possible, to determine the offender’s role in the criminal enterprise: R v Laurentiu (1992) 63 A Crim R 402; R v Bimahendali (1999) 109 A Crim R 355. The shortcomings of attempting to categorise the role of the offender were recognised by the majority, Gleeson CJ, Gaudron, Hayne and Callinan JJ, in Olbrich v The Queen (1999) 199 CLR 270 at [14]:

However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.

Sometimes, the offender’s role is not known to the court. In such cases, the court is not obliged to find facts favourable to the offender or to accept his or her version of events: Olbrich v The Queen at [27]–[28].

It is accepted that the role of the offender and the level of the offender’s participation in the criminal enterprise are more important than the mere quantity of drugs, subject to the recognition that the gradation of seriousness is reflected in the increase in statutory maximum penalties as the quantity of drug increases: R v MacDonnell (2002) 128 A Crim R 44. The quantity of the drug remains material, given that the size of the profit and the harm inflicted are likely to be proportional to the weight of the drug: R v Stanbouli (2003) 141 A Crim R 531 at [102].

In R v Stanbouli, Spigelman CJ at [3], with whom Carruthers AJ agreed at [179], held that life imprisonment should be reserved as “the norm” for those at the top of the importation hierarchy, rather than those who “provide important assistance”, as Hulme J held at [113]. Note the schedule of cases assembled by Hulme J at [144]–[170], including several where sentences of life imprisonment were imposed on offenders described as “mid-level executives”. See Mandatory Life Sentences under s 61 at [8-600].

In R v Flavel [2001] NSWCCA 227, the court rejected a submission that the categorisation of the offender’s role as a mid-level manager in the importation of 117 kg of pure cocaine called for the imposition of less than the statutory maximum penalty. The court upheld a sentence of life with a non-parole period of 25 years as being within the sentencing judge’s discretion. Similarly, in R v Gonzales-Betes [2001] NSWCCA 226, the court upheld the sentence of life with a non-parole period of 22 years for a co-offender regarded as a “mid-level” executive, “not the ring leader, chief executive or chairman of the board” in the same importation.

Distinguishing between “couriers” and “principals”

In Olbrich v The Queen (1999) 199 CLR 270, the majority, Gleeson CJ, Gaudron, Hayne and Callinan JJ, recognised that a distinction between “couriers” and “principals” may usefully describe different kinds of participation in a single enterprise of importation. However, too much reliance should not be placed upon these terms when sentencing a particular offender. The majority said at [19]:

Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a “courier” or a “principal” must not obscure the assessment of what the offender did.

In Kook v R [2001] NSWCCA 122, Howie J emphasised that proper regard had to be given to the actual part played by the offender in the importation. His Honour said at [15]:

… the use of the phrase “couriers and persons low in the hierarchy of the importing organisation” as used in relation to the guideline set out in R v Wong & Leung should not deflect the sentencing judge from focusing upon the acts performed by the offender in connection with the importation in which he or she is concerned when determining the sentence appropriate to reflect the offender’s culpability.

Couriers, and those low in the drug hierarchy, generally receive a lesser sentence than persons at a higher level: Tyler v R (2007) 173 A Crim R 458 at [79]; R v Chea [2008] NSWCCA 78 at [34]. Justice Simpson explained in Tyler v R at [79]–[80]:

Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy — in a drug importation conspiracy, without couriers, no drug could or would be imported — they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward.

By contrast, those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable. A relevant factor here is the level of profit to be derived.

Couriers involved in the same importation can be differentiated on the basis of their reward: Seng v R [2007] NSWCCA 335. At first instance, the applicant in Seng v R was sentenced by the same judge to an identical non-parole period as the co-offender, and a head sentence of only 6 months less. The couriers travelled on the same flight after ingesting pellets of heroin but the Court of Criminal Appeal found that their roles were materially different. The co-offender participated in the importation for significant financial reward, being promised a cash payment of $30,000 to $35,000, and he secured the applicant’s involvement, whereas the applicant acted out of a sense of obligation to a man higher in the enterprise: at [22]. The applicant’s financial gain amounted to payment of his expenses while he stayed in Cambodia for a month, and the airfare to Australia which would allow him to see his son.

Role and conspiracies

The Court of Criminal Appeal in Tyler v R (2007) 173 A Crim R 458 confirmed that the relevance of the role of the offender in sentencing for drug conspiracies refers to the seniority of the offender whose sentence is under consideration: at [79]. The court found that the sentencing judge erred in assessing the role of one co-offender, Chalmers, who booked flights and obtained tickets for the courier (the other co-offender, Tyler), as being relatively minor in the overall operation. The judge also found that the role of Chalmers was diminished by his lack of involvement in travelling overseas to obtain the drugs. Ordinarily, those who carry the drugs are at the bottom of the hierarchy, while those in higher positions distance themselves from physical contact with the drugs: at [75]. To treat Tyler as more culpable because of his close physical connection to the drugs inverts the conventional approach to blameworthiness in drug conspiracies: at [76]. Justice Simpson stated at [83]–[84]:

Identifying the “role” of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the “role” of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy — the agreement to participate in an organised criminal activity.

That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [102]. That, in my opinion, is the first, and most fundamental, flaw in the approach to sentencing here taken.

Different offences and De Simoni

A sentencing judge cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: The Queen v De Simoni (1981) 147 CLR 383 at 389. In the case of a possession offence (and attempt possession), there has been a debate about the extent to which a judge can take into account at sentence facts relating to an importation: El-Ghourani v R (2009) 195 A Crim R 208.

It is appropriate for a judge to have regard to the entire drug transaction in order to determine the nature of the possession charge and the circumstances in which it occurred, because without the surrounding context it is not possible to assess the objective seriousness of the possession offence: R v Laurentiu (1992) 63 A Crim R 402 at 416. In El-Ghourani v R, Spigelman CJ reviewed the authorities and confirmed that the circumstances relating to the process of importation may also be relevant to a charge of possession: at [30]. His Honour said at [33] that:

… the act of possession can be attended by a wide range of moral culpability. The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of possession itself.

By having regard to the broader circumstances or overall context of an offender’s involvement in a drug importation for a possession offence is not inconsistent with the approach the High Court took in The Queen v Olbrich (1999) 199 CLR 270: El-Ghourani v R at [30]. The court in The Queen v Olbrich at [18] emphasised (with reference to the decision in The Queen v De Simoni) the importance of the sentencer focussing on the crime charged. A failure to focus on the possession offence (where adverse findings are made about the offender’s role in an importation) has been held to be an error: R v Bousehjin (2003) 140 A Crim R 310 at [26]. The judge must keep firmly in mind that the offender is not charged with importing the drugs and acknowledge that the evidence could not be used to impose a greater penalty on the offender: R v Guiu (2002) 129 A Crim R 387 at [2]–[3]; El-Ghourani v R at [6], [9], [32]. The sentencing judge in El-Ghourani v R stated that the offender “was acting as a principal in Australia in this importation” but maintained the focus on the possession charge: at [35]. The reasoning in El-Ghourani v R should apply to any of the serious drug offences in the Code.

[65-140] Subjective factors

Assistance to authorities

In sentencing federal offenders, ss 16A(2)(h) and 16AC (previously s 21E) Crimes Act 1914 (Cth) provide statutory obligations for an offender’s assistance to authorities to be taken into account.

Assistance to authorities takes on particular significance in importation offences because of the “notorious difficulties of detecting the crime of importation”: R v Wong and Leung (1999) 48 NSWLR 340. The fundamental importance of general deterrence in sentencing drug offenders, at whatever level in the hierarchy, gives way to the greater community interest in allowing a significant discount for assistance by couriers whose implication of principals contributes to the disruption of drug importation networks: R v Perrier (No 2) [1991] 1 VR 717 at 725.

However, as was said by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 232:

Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards.

Springer v R (2007) 177 A Crim R 13 is an importation case under s 307.2 of the Criminal Code (Cth), in which fresh evidence established that the applicant’s assistance to the authorities was of much greater value than was thought at the time of sentence: at [24]. While the court recognised that only in rare and exceptional cases can post-sentencing facts be taken into account, the present case was exceptional in the sense of explaining facts that were before the sentencing judge in a new light: at [31]–[32], referring to R v Smith (1987) 27 A Crim R 315 at 316. In resentencing the applicant, the initial discount of one-third for contrition and assistance was increased to a discount of 50 per cent “for all the subjective features, including assistance to the authorities, past and future”: at [33].

See Power to Reduce Penalties for Assistance to Authorities for constraints on the application of the discount at [12-220] and Co-operation with law enforcement agencies: ss 16A(2)(h) and 16AC in General sentencing principles applicable at [16-010] for a discussion of the relevant principles.

Entitlement to discount and extent of the benefit

In R v A [2004] NSWCCA 292, Wood CJ at CL said at [25]:

The availability of a discount for assistance, depending on its worth, in order to foster the interests of law enforcement and to recognise the contrition involved as well as the potential risks to the offender, is well recognised: R v Salameh (1991) 55 A Crim R 384, R v Gallagher (1991) 23 NSWLR 220, R v Cartwright (1989) 17 NSWLR 243 and R v Dinic NSWCCA 3 September 1997. It is important, if the purpose for allowing a discount is to be achieved, that the offender standing for sentence be clearly appraised of the fact that a benefit was conferred.

While entitlement to a discount does not necessarily depend on the effectiveness of the information supplied, the value of the assistance is relevant to the evaluation of the discount. In R v Barrientos [1999] NSWCCA 1, Abadee J reviewed the authorities on assistance in Commonwealth offences, including R v Dinic (1997) 149 ALR 488 and R v Cartwright (1989) 17 NSWLR 243, and said at [47]:

Thus in the determination of any discount the relevance and importance of the benefits flowing from assistance is important: see also R v Gallagher (1991) 23 NSWLR 220. There is no fixed tariff for assistance given. Where there is significant assistance the amount “customarily given in New South Wales which with few exceptions, appears to range from 20 per cent to 50 per cent”: see R v Chu per Spigelman CJ at 6–7. That said, the law does not mandate the identification of a precise discrete quantifiable discount for assistance or that the assistance falls within the range. The matter of that discount or its quantification will depend upon a number of factors and the facts of the particular case under consideration. I do not see the authorities suggesting that once any assistance is found then the allowance for such must reflect a range. The worth of the assistance may take it below the range. Whether it does is a matter of fact to be evaluated in accordance with the proved circumstances of the case.

Good character

Good character carries less weight in crimes involving drugs than for many other offences: R v Leroy [1984] 2 NSWLR 441 per Street CJ at 446–447. This principle is usually of particular relevance in relation to drug couriers involved in importation where persons with clear records are selected so as to not attract suspicion: R v Lopez-Alonso (1996) 86 A Crim R 270; R v Salgado-Silva (2001) 126 A Crim R 1.

In R v X (2002) 130 A Crim R 153, the court rejected a submission that, as good character has limited significance in crimes involving drugs, then having a previous conviction cannot be of major significance in determining an appropriate sentence. On the contrary, Smart AJ said at [57] that:

This does not follow. Having a conviction for a previous serious drug offence is significant for sentencing purposes.

[65-150] Achieving consistency

The primary responsibility of a sentencing judge is to ensure that the sentence imposed on an offender is consistent with others and the primary mechanism for achieving this is through the application of the relevant sentencing principles: Hili v The Queen (2010) 242 CLR 520 at [40]; Barbaro v The Queen (2014) 253 CLR 58 at [26].

In Barbaro v The Queen, the High Court held (at [40]) that the prosecutor’s duty to assist the court on sentence did not extend to providing the court with an available range of sentences but that that practice was to:

… be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less comparable cases.

The synthesis of “raw material” which includes sentencing statistics and information about the sentences imposed in comparable cases is the task of the sentencing judge: Barbaro v The Queen at [41]. See Achieving consistency in sentencing in Relevance of decisions of other State and Territory courts at [16-002].

In Wong v The Queen (2001) 207 CLR 584, the High Court overturned the guideline promulgated by the Court of Criminal Appeal in R v Wong and Leung (1999) 48 NSWLR 340. In their joint judgment, Gaudron, Gummow and Hayne JJ held at [87] that, not only was there no jurisdiction or power to issue the guideline, but the principles which informed its construction were flawed by the error in selecting weight of the narcotic as the chief factor in sentencing.

As to the continuing usefulness of the guideline promulgated by the Court of Criminal Appeal in R v Wong and Leung see in particular Guideline judgments and s 16A in General sentencing principles applicable at [16-010] and Impact of repeal of s 16G in Remissions at [16-060].

A number of intermediate appellate decisions concerning Commonwealth serious drug offences annex comparative case schedules: see, for example, R v Lee [2007] NSWCCA 234; Law v R [2006] NSWCCA 100; R v To (2007) 172 A Crim R 121; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; DPP (Cth) v Maxwell (2011) 31 VR 673; OPQ v R (2012) 221 A Crim R 424; and Pham v R [2014] VSCA 204. These schedules may usefully promote sentence consistency at a national level because they can inform a court of national sentencing practice: DPP (Cth) v De La Rosa at [193]. However, it would be wrong to use schedules, such as the one reproduced in DPP (Cth) v De La Rosa, by endeavouring to fit an offender into one of the nominated categories, because of the individual nature of each sentencing exercise: R v Holland (2011) 205 A Crim R 429 at [3].

In R v Maldonado [2009] NSWCCA 189 at [54], the court accepted that cases decided in respect of different offences under the Code with the same maximum penalty provided “a rough guide to the range of sentences imposed for Commonwealth offences”.

For some of the newer offences in Pt 9.1 Criminal Code (Cth), such as manufacturing or trafficking controlled drugs, it is also open to a sentencing judge to have regard to sentences imposed for the more established Commonwealth drug offences and to seek guidance from the long-established State equivalent offences: see R v Cheung (2010) 203 A Crim R 398 at [130]–[131]; R v Nakash [2017] NSWCCA 196 at [18].

However, in Rajabizadeh v R [2017] WASCA 133, the WA Court of Appeal observed that equating sentences for Commonwealth offences with similar State offences to achieve consistency was wrong as a matter of principle and that attempting to achieve consistency with the State offences in each jurisdiction could result in inconsistency between States in sentences for the same federal offence due to differing maximum penalties and sentencing ranges: Rajabizadeh v R at [68]. Given the sentencing framework under Pt IB Crimes Act 1914 (Cth) applies, in the absence of comparable cases, an assessment of the sentence imposed must have regard to the maximum penalty, the seriousness of the offence, the relevant mandatory factors set out in s 16A(2) Crimes Act and any other relevant aggravating or mitigating factors: Rajabizadeh v R at [71].

See further the discussion at 5.3.2.3 concerning the use of comparable cases in Ch 5 The imperative of achieving reasonable consistency in P Mizzi, Z Baghizadeh and P Poletti, Sentencing Commonwealth drug offenders, Research Monograph 38, Judicial Commission of NSW, Sydney, 2014.