Law Report: 2 June 1998 - Sentencing guidelines for importation of amph etamine

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Regina v Wijs; Regina v Rae; Regina v Donaldson; Regina v Church; Regina v Haller; Court of Appeal (Criminal Division) (Lord Bingham of Cornhill, Lord Chief Justice, Mr Justice Turner and Mr Justice Penry-Davey) 20 May 1998

THE COURT of Appeal, in allowing the appeals against sentence of Eric Jan Wijs, Darryn Rae, John Church and Pierre Egbert Haller, and dismissing the appeal against sentence of Andrew Donaldson, gave guidelines as to the appropriate level of sentencing in cases of importing amphetamine.

Althea Brown (Registrar of Criminal Appeals) for Wijs; John Mannion (Registrar of Criminal Appeals) for Rae; Martyn Levett (Registrar of Criminal Appeals) for Donaldson; Paul Higham (Registrar of Criminal Appeals) for Church; David Harounoff (Registrar of Criminal Appeals) for Haller; Mark Bryant- Heron (Solicitor for Customs and Excise) for the Crown.

Lord Bingham CJ said that amphetamine was a synthetic stimulant which, in powder or tablet form, fell within Part II of Schedule 2 to the Misuse of Drugs Act 1971 and was thus a Class B controlled drug.

The best-known and most widely abused Class B drugs were herbal cannabis and cannabis resin. In R v Aramah (1982) 4 Cr App R (S) 407, as refined in R v Ronchetti (unreported, 28 November 1997) the court had given guidance on the appropriate levels of sentence on conviction of unlawfully importing those drugs.

As had been repeatedly emphasised, those were guidelines only. The appropriate sentence in any case would depend on a number of circumstances, including the defendant's plea (and, if the plea was one of guilty, the date at which it had been tendered); the defendant's history of involvement in drug trafficking; his role in the importation; any help which he might have given to the authorities; and other relevant matters. The penalty for importing a controlled drug would in many cases be higher, and rarely lower, than for possession with intent to supply.

Although the section of the judgment in R v Aramah setting out the basis of the guidelines was headed "Class B drugs, particularly cannabis", it was plain that the court had had herbal cannabis and cannabis resin, and by analogy (but see R v Ronchetti) cannabis oil, in mind. In R v Falshaw (1993) 14 Cr App R (S) 749 the court had pointed out that no exact comparison could be made between cannabis and amphetamine.

There were two very obvious differences between cannabis and amphetamine:

1) amphetamine had always, weight for weight, been vastly more valuable than cannabis;

2) it had always been the practice to retail amphetamine to consumers in a highly adulterated form, and at retail level the purity might well be no more than 10 to 12 per cent or even less.

In cases concerning the importation of amphetamine, the appropriate levels of sentence should depend not on the market value of the drugs, but, subject to all other considerations, on the quantity of the amphetamine in question calculated on the basis of 100 per cent pure amphetamine base (i.e. the maximum theoretical purity of 73 per cent amphetamine base in amphetamine sulphate, the remaining 27 per cent being the sulphate).

On conviction of importing amphetamine following a contested trial a custodial sentence would almost inevitably be called for save in exceptional circumstances or where the quantity of the drug was so small as to be compatible only with personal consumption by the importer.

The ordinary level of sentence should be as follows:

1) up to 500 grammes: up to two years' imprisonment;

2) more than 500 grammes but less than 2.5 kilos: two to four years' imprisonment;

3) more than 2.5 kilos but less than 10 kilos: four to seven years' imprisonment;

4) more than 10 but less than 15 kilos: seven to 10 years' imprisonment;

5) more than 15 kilos: upwards of ten years' imprisonment, subject to the statutory maximum of 14 years' imprisonment.

Kate O'Hanlon, Barrister