KKO:2020:45

Diary number R2019/595
Issued on 17 June 2020
ECLI:FI:KKO:2020:45

Facts and issue at hand

A, B, and C had been convicted by the Court of Appeal for an aggravated narcotics offence (dates of commission 16 Dec 2016–14 Jun 2017); the conviction was res judicata. As of 16 June 2016, A and B had been in possession of some 5 litres of free-base amphetamine. On the orders of B, A had procured methanol from a retail store, as this was needed for the precipitation of the free-base amphetamine into sulphate. In addition, B had arranged for C, who was located in the Netherlands, at least five kilograms of caffeine, to be used for the cutting of amphetamine sulphate; C had sent the caffeine to A from the Netherlands to Finland in April 2017. On 13 June 2017, A, B, and C had met at a summer house arranged by A and manufactured, by the precipitation of the free-base amphetamine, a very large amount of amphetamine sulphate cut with caffeine and other substances. The amounts seized from the summer house were 17,886 grams of amphetamine and 1.3 grams of free-base amphetamine.

The Court of Appeal had held that, at first hand, the sentence for the offence in question should be the statutory maximum for an aggravated narcotics offence, that is, 10 years of imprisonment. A and B had been convicted also of certain other offences. Accordingly, A had been sentenced to a joint punishment of 12 years of imprisonment and B to a joint punishment of 10 years and 8 months of imprisonment. C’s complicity in the offence in question was less intense than that of the others; accordingly, C had been sentenced to a punishment of 8 years of imprisonment. The issue at hand before the Supreme Court was whether the sentences passed on the defendants should be reduced.

Sentencing practice in cases of aggravated narcotics offence

The Supreme Court noted that the penalty scale for aggravated narcotics offences (1–10 years of imprisonment) was broad. In various cases of aggravated narcotics offence, the dangerousness of the substances in question and also their amounts varied to a great extent. The aggravated narcotics offences differed from one another also as regards their methods and also their reprehensibility. The Supreme Court referred to two of its own precedent judgments issued in 2017, where it had significantly reduced the sentence passed on a drug courier and emphasised that especially in the most aggravated cases of narcotics offence the punishment was markedly influenced also by circumstances other than the type and amount of the narcotic substance in question.

The Supreme Court noted further that in cases of aggravated narcotics offence, unlike most other types of criminal offence, the case-law showed that the entire penalty scale was being used and that the sentences often were set at the top quarter of the scale. One of the reasons for this extensive use of statutory maximums was that, over time, the sentencing standard of narcotics offences had been set at a relatively severe level, which meant that it was difficult to reconcile with the growth of the amounts of narcotic substances in later cases.

The Supreme Court noted that, in cases of aggravated narcotics offence, the type and amount of the narcotic substance were a major starting point in sentencing, as they reflected the damaging effect and dangerousness of the offence. That said, sentencing practice where the possession of a large amount of a narcotic substance resulted almost always in the imposition of the maximum punishment or a near-maximum punishment, was problematic in view of the principle of proportionality in sentencing. In such cases, the will of the legislator that the maximum punishments would be reserved to the most egregious cases was not realised. In addition, the distribution of punishments within the scale was not proportionate, when offences with very different levels of damaging effect, dangerousness and culpability gave rise to the same penalty. Notwithstanding the general trend of narcotics offences becoming more serious, the top part of the penalty scale was to be reserved to the most severe cases.

The Supreme Court then noted that the full realisation of the various grounds for sentencing in accordance with the principle of proportionality would require that the independent significance of the type and amount of the narcotic substance be less than it is at present, in cases where the amounts are very large. Accordingly, the imposition of the maximum punishment or a near-maximum punishment must be based on circumstances, other than the type and large amount of narcotic substance, indicating the specific reprehensibility of the act or the manifest culpability of the offender. Note was to be taken e.g. of circumstances pertaining to specific premeditation, the degree of organisation, the level of control over the narcotic substance, the degree of complicity of the person in question, the duration of the criminal activity, and the nature and extent of distribution.

Sentencing in the present case

The Supreme Court noted that the amount of amphetamine in the present case had been large, but not exceptional. It was a clear premise that the total amount of amphetamine called for a lengthy period of imprisonment. That said, the type and amount of narcotic substance were not by themselves a sufficient reason for the imposition of the maximum punishment or a near-maximum punishment.

The criminal act encompassed the manufacture of narcotic substance by precipitation of free-base amphetamine, which had yielded, out of 5 litres of free-base amphetamine, almost 18 kilograms of amphetamine as a finished product. The precipitation of free-base amphetamine required, in addition to the procurement of the raw material, the free-base amphetamine, also the procurement of solvents and various pieces of equipment. The manufacture of amphetamine as a finished product out of free-base amphetamine required at least a given degree of competence. For these reasons, the processing of free-base amphetamine could typically be seen as more premeditated than the procurement of amphetamine as a finished product and hence indicative of a greater degree of culpability. Accordingly, the precipitation of free-base amphetamine had characteristics that emphasise the damaging effect and dangerousness of the offence and the culpability of the offender.

As noted by the Court of Appeal, A and B had had control over the amphetamine. They had procured the precipitation agent methanol and the free-base amphetamine itself some six months before the precipitation process. The cutting agent caffeine had been procured from abroad and brought to Finland by way of several intermediaries. A had obtained the use of a summer house to serve as a manufacturing location. None of the defendants had carried a mobile phone when they went to the summer house. B had had possession of a pistol, ready to fire. Paraphernalia linked to the packaging of amphetamine sulphate had been found at the summer house; this finding, taken together with the use of cutting agents and the large amount of seized narcotic substance indicated that there had been an intent to distribute the narcotic substance extensively. All of these points were indicative of premeditation. The total amount of seized narcotic substance had been large and, according to the indictment, its street value would have been almost EUR 1.4 million. The Supreme Court noted that these circumstances called for the imposition of a severe punishment.

On the other hand, it should be noted that the handling and the preparation of distribution of large amounts of narcotic substance always required some degree of premeditation. Even though the procurement and the processing of the free-base amphetamine had required a number of measures, there were no circumstances in the present case that would be indicative of a greater degree of reprehensibility than what is typical for similar cases. Hence, the premeditation on the part of A and B did not differ significantly from the premeditation needed and usually manifest in the handling of large amounts of narcotic substance. Three persons had participated in the criminal offence, but this was not to be considered such a degree of complicity that would give rise to an increase in the applicable punishment. The evidence supplied was not indicative of transborder or other organised crime. The precipitation of the amphetamine and the cutting of the substance had not required specific skills or equipment. These circumstances were to be taken to indicate that there were no specific reasons that would make the criminal act especially reprehensible.

A and B had had control of the amphetamine and they had participated in the handling of the substance. When assessed as a whole, their offence could not be described as the most aggravated of narcotics offences, for which reason the sentence should be clearly lower than the statutory maximum. As noted by the Court of Appeal, the complicity of C in the offence had been clearly less serious than that of A and B.

Outcome

The Supreme Court held that the just punishment for A and B for the aggravated narcotics offence in question was 8 years of imprisonment. Accordingly, the joint punishment of A was reduced to 9 years and 6 months of imprisonment and that of B to 8 years and 6 months of imprisonment. In view of the lesser degree of culpability of C, the punishment was reduced to 6 years and 4 months of imprisonment.