[2008] NSWCCA 278
Davidson v R (2009) 75 NSWLR 150
[2009] NSWCCA 150
Decision Restricted [2019] NSWCCA 102
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218
Source
Original judgment source is linked above.
Catchwords
[2008] HCA 15
Arnaout v R (2008) 191 A Crim R 149[2008] NSWCCA 278
Davidson v R (2009) 75 NSWLR 150[2009] NSWCCA 150
Decision Restricted [2019] NSWCCA 102
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218[2013] VSCA 50
DS v RDM v R (2022) 109 NSWLR 82[2022] NSWCCA 156
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[2007] HCA 22
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45
McMahon v R [2011] NSWCCA 147
Melikan v R [2008] NSWCCA 156
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Patel v The Queen (2012) 247 CLR 531[1999] NSWCCA
R v McDonald (2002) 128 A Crim R 44[2007] VSCA 102
R v Zamagias [2002] NSWCCA 17
Tepania v R (2018) 275 A Crim R 233[2018] NSWCCA 247
The Director of Public Prosecutions v Maxwell [2013] HCATrans 178 (16 August 2013)
The Queen v Guode (2020) 267 CLR 141[2020] HCA 8
The Queen v Olbrich (1999) 199 CLR 270
[1999] HCA 54
The Queen v Pham (2015) 256 CLR 550
[2015] HCA 39
Veen v The Queen (No 2) (1988) 164 CLR 465
[1988] HCA 14
Wilson v The Queen (1992) 174 CLR 313
[1992] HCA 31
Wong v The Queen
Leung v The Queen (2001) CLR 584
Judgment (18 paragraphs)
[1]
August 2013)
The Queen v Guode (2020) 267 CLR 141; [2020] HCA 8
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
Wong v The Queen; Leung v The Queen (2001) CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Grant Neil Bott (Applicant)
Rex (Respondent)
Representation: Counsel:
P Strickland SC and S Pararajasingham (Applicant)
R Ranken (Respondent)
[2]
Solicitors:
Bilias & Associates (Applicant)
Solicitor of Public Prosecutions (Cth) (Respondent)
File Number(s): 2020/270164
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: Nil
Date of Decision: 06 April 2022
Before: Judge Arnott SC DCJ
File Number(s): 2020/270164
[3]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant, Grant Bott, pleaded guilty in the Local Court and was sentenced for one count of attempting to possess a commercial quantity of gamma-butyrolactone (GBL) reasonably suspected of having been unlawfully imported, and one count of knowingly take part in the supply of a commercial quantity of methylamphetamine. An additional count of possession of methylamphetamine was taken into account on a Form 1.
In respect of the attempt to possess GBL offence, the applicant was sentenced to a term of 11 years and 3 months imprisonment with a non-parole period of 7 years. In respect of the take part in supply of methylamphetamine offence, the applicant was sentenced to a term of 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months.
The applicant advanced two grounds: first, that the sentencing judge erred in failing to find and/or take into account unchallenged expert evidence of the nexus between the applicant's offending behaviour and his pre-existing co-morbid mental disorders, and second, that the sentence imposed for the attempt to possess GBL offence was manifestly excessive.
The Court (Dhanji J with Beech Jones CJ at CL and Fagan J agreeing) held, granting leave to appeal, confirming the applicant's sentence for the supply and possession offences, quashing the applicant's sentence for the attempt to possess offence, and resentencing the applicant in respect of that offence:
As to ground 1
Per Dhanji J (Beech Jones CJ at CL and Fagan J agreeing)
A factor on sentence that sounds in a reduction in moral culpability may (not will) also reduce the gravity of the offending, and thus the limits of the punishment which is proportionate to the crime, as well as, potentially the weight given to other purposes of sentencing including denunciation: at [54].
The Queen v Guode (2020) 267 CLR 141; [2020] HCA 8; R v Verdins (2007) 16 VR 269; [2007] VSCA 102; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, considered.
Findings of objective seriousness and moral culpability are but steps along the way to assist a sentencing judge in determining the weight to be given to the various purposes of sentencing. This does not impact the importance of a proper appreciation of the gravity of an offence: at [60]-[61]
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, applied.
The question of a reduction in moral culpability is a reduction from the moral culpability that would otherwise correspond to the gravity of the offending: at [71].
DS v R; DM v R, applied.
The various factors relied on in the context of this ground impacted on the applicant's ability to control his addiction, which, in turn, led to the offending behaviour. As the sentencing judge already assessed gravity of the offence having regard to the applicant's motive, including to fund his addiction and pay off his gambling debts, the complaint as to the failure to take into account the nexus between the applicant's conditions and the offending behaviour to reduce his moral culpability for the offending must fail: at [71].
As to ground 2
Per Dhanji J (Beech-Jones CJ at CL agreeing, Fagan J agreeing with additional reasons)
An appeal against the single attempt to possess GBL offence is available: at [74].
Arnaout v R (2008) 191 A Crim R 149; [2008] NSWCCA 278; McMahon v R [2011] NSWCCA 147; AB v R [2013] NSWCCA 160, considered.
In the circumstances of the present case, it can be fairly said that the applicant's role was more significant than the weight of the drug: at [80].
Wong v The Queen; Leung v The Queen (2001) CLR 584; [2001] HCA 64; Decision Restricted [2019] NSWCCA 102; Melikan v R [2008] NSWCCA 156; R v McDonald (2002) 128 A Crim R 44; [2002] NSWCCA 34, cited.
The decision in Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218; [2013] VSCA 50, dealing with sentencing for the importing of GBL, should be followed, particularly having regard to the need for consistency in sentencing patterns of federal offences between states: at [89].
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, applied; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [18], cited.
Although there are relatively few authorities dealing with sentences for importing or attempting to possess a prohibited import of GBL, there is an apparent pattern of leniency for sentences of this kind: at [97].
Director of Public Prosecutions (Cth) v Maxwell; Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150; R v Abdelrahman Masri (District Court (NSW), 12 March 2020, unrep); R v Phelps (District Court (NSW), Ellis DCJ, 5 September 2014, unrep), considered; R v Sopronick (District Court (NSW), 7 February 2014, unrep); R v Colledge (District Court (NSW), 20 April 2010, unrep), cited.
Despite there being no evidence of the value of the drug in this case, it is unfair to the applicant to impose a sentence based on an assumption that the commercial quantity of GBL can be equated in value with a commercial quantity of drugs such as methamphetamine, heroin, and cocaine: at [98]-[99].
Director of Public Prosecutions (Cth) v Maxwell, considered.
The sentence imposed is excessive to the point that error is established: at [100].
Per Fagan J:
Differences between drugs with respect to demand, relative commercial value from time to time and prevalence of offending are concrete factual matters, amenable to proof and/or judicial notice and having a direct bearing upon the sentencing factors of objective seriousness and the need for general deterrence: at [7].
Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15, considered; Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25; R v Henry (1996) 46 NSWLR 346; [1996] NSWCCA 111; R v Darwell (1997) 94 A Crim R 35; Ruvinovski v The Queen (2000) 116 A Crim R 131; R v Zamagias [2002] NSWCCA 17, cited.
When considering other sentencing decisions that may be relevant to the alleged manifest excessiveness of the sentence for the attempt to possess GBL offence, the Court should make due allowance for the very great frequency of importing, possessing and supplying large quantities of methamphetamine: at [9].
[4]
JUDGMENT
BEECH-JONES CJ at CL: I agree with Dhanji J and the orders his Honour proposes.
FAGAN J: I agree with the orders proposed by Dhanji J and with his Honour's reasons. I wish only to add the following observations concerning the pattern of sentences for offences involving gamma-butyrolactone (GBL), relevant to ground 2.
During the past 40 years it has been evident to legal practitioners and judges involved in criminal proceedings concerning the trade in illicit drugs that certain drugs have at times been in greater demand than others and have attracted higher prices. Over time the demand for some drugs has fallen away and other drugs have replaced them or achieved comparable popularity. This would be confirmed by a study of the reported cases and/or of court records. If sentencing for drug offences is to achieve its purposes, the courts must take account of the differential demand and commercial value, from time to time, of some drugs relative to others - so far as that can be ascertained from reliable material.
High demand and correspondingly elevated price for a specific drug raises the commercial value of dealing in that drug and thereby increases the objective seriousness of the offence. On that account there may be imposed a longer sentence than would be appropriate for an otherwise comparable crime in relation to a different, less valuable drug. As well as increasing objective seriousness, relatively high market value may call for a stronger element of general deterrence, to counter the commercial incentive for others to breach the law with respect to the substance concerned. These points were made by the Victorian Court of Appeal in DPP v Maxwell at [33]-[36], being the passages quoted by Dhanji J. I respectfully agree with the Court of Appeal's reasoning.
In my view it is also necessary for a sentencing judge to take into account the prevalence of trade in the particular drug concerned in the relevant offending - again, so far as the facts are reliably known to the court. Changes over time in the frequency of trade in particular drugs may have to be considered, where known. If the sentencing court is made aware that the prevalence of offending against a relevant section is appreciably greater for one drug in comparison to others, that of itself may warrant a greater component of general deterrence. Prevalence of a particular type of offending has long been regarded as a relevant sentencing factor: Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 at [44] (Gleeson CJ, Gummow, Hayne and Callinan JJ) and [77] (McHugh J); R v Henry (1996) 46 NSWLR 346; [1996] NSWCCA 111 at [87]-[88] (Spigelman CJ); R v Darwell (1997) 94 A Crim R 35 at 40 (Malcolm CJ); Ruvinovski v The Queen (2000) 116 A Crim R 131 at 144 (Anderson J, Kennedy ACJ and Ipp J agreeing); R v Zamagias [2002] NSWCCA 17 at [38] (Howie J, Hodgson JA and Levine J agreeing).
[5]
Factual background
The following summary is derived from the agreed facts on sentence and the remarks on sentence.
[6]
The federal attempt to possess offence
On 26 July 2020, a shipment of 25 steel drums arrived at the Australian Border Force container examination facility in Melbourne from China. Testing of the liquid in the drums revealed the presence of GBL. The four drums contained a minimum of 755 kilograms of pure GBL, with a purity of between 98.7 and 99.2 percent.
On 2 September 2020, the applicant rented a Toyota van from Thrifty Car Rentals, using his NSW driver's licence as identification. On 4 September 2020, the applicant purchased an Optus SIM card while accompanied by another male person. The next day, the applicant activated the phone under a false name.
The applicant then, on 7 September 2020, used the falsely subscribed phone number to contact an Oxford Falls property owner to arrange the lease of a shipping container which the applicant said would be used for brick cleaning chemicals. On that call, the applicant falsely identified himself as Januario Siamo and provided an email address for further correspondence. Later that day, the Oxford Falls property owner received an email with a signed lease agreement and a copy of a driver's licence with the picture of the applicant and the false details of Januario Siamo. The email also confirmed that a payment of $1,650 had been made to lease the container and asked for the address for delivery.
On 8 September 2020, FM Global, a freight forwarding company, organised for four of the drums to be delivered to the address in Oxford Falls, with the contact name and number of Mr Januario Siamo. The Australian Federal Police replaced the GBL with an inert substance and undertook a controlled delivery of the four drums to the Oxford Falls address.
A few days later, on 14 September 2020, the applicant attended Bunnings and purchased, items including, 11 x 25 litre blue plastic drums, a funnel, a siphon jiggle hose, and PVC gloves. He purchased these items with his own money.
The applicant, using the falsely subscribed telephone, on 15 September 2020, was contacted by an employee of FM Global who informed him that the "drums from Melbourne" had been held up at the Victorian border and told the applicant to ensure that a forklift was available at the address to unload the drums. During the call, the employee referred to the applicant as Januario Siamo and told the applicant that the drums were "about 160 kilos each".
[7]
The State supply and possession offences
Following the applicant's arrest at Oxford Falls for the attempt to possess offence, the police conducted a search warrant at his Liverpool home. Police located 2.9 kilograms of methylamphetamine under the applicant's bed in a black garbage bag. The police also found a total of 14 grams of methylamphetamine in various locations across the home. The applicant lived alone at that premises.
[8]
Proceedings on sentence
Proceedings on sentence were conducted on 1 April 2022. The Crown bundle contained a Crown sentence summary; notice of committal; court attendance notices; a s 166 certificate; a statement of agreed facts; and the applicant's criminal history. Tendered on behalf of the applicant was a report of Professor Stephen James Woods dated 31 March 2022; eight character references; a number of certificates for courses completed while in custody; a letter of the applicant to the Court; and transcripts of telephone calls recorded by the Australian Federal Police. The applicant gave oral evidence and was cross-examined. Significant aspects of the evidence are set out in the summary of his Honour's remarks on sentence below. Both the Crown and the applicant provided written and oral submissions to the Court.
[9]
Remarks on sentence
The sentencing judge delivered judgment on 6 April 2022.
In respect of the attempt to possess offence, his Honour accepted the applicant's evidence that he did not rent the van or extend the rental in connection with the offences, and that he did not send the email to the property owner, pay for the lease of the container, pay FM Global, or pay for the rental of shipping container. His Honour observed however, that it could be safely inferred that the applicant was either in direct or indirect contact with whoever did send the email. His Honour also accepted the applicant's evidence that he was paid $5,000 for his involvement in the crime, that he became involved in the offence to earn money, fund his drug addiction and pay off his drug and gambling debts, a matter discussed in more detail below.
While his Honour accepted that the applicant "did only what he was directed to do", he nonetheless observed that the applicant played a "significant and important role" over a period of time and was a "trusted member" who was "critical to receipt of the consignment". His Honour noted that the applicant purchased the SIM card and organised a false telephone number which was then used to facilitate the offending, that he arranged to lease the shipping container using a false name, and that he attended Bunnings on two occasions to purchase items used to access the drums and empty and transfer the GBL. His Honour also found that the applicant continued to falsely identify himself in communications with the freight forwarder and was the only person who could have taken possession of the consignment because of his possession of the phone and the false identity documentation containing his photograph.
His Honour also made a number of findings favourable to the applicant. His Honour accepted there was no evidence that the applicant sourced the GBL or played any role in its importation. Further, his Honour found the applicant had not intended to move the GBL elsewhere, his involvement being limited to storing the drug. The sentencing judge also found that the applicant was not aware of the precise quantity of the GBL although he knew it was GBL and, by at least the day before his arrest, he was aware that it was a "substantial amount" of the prohibited drug.
The sentencing judge ultimately found the objective seriousness of the attempt to possess offence to be "clearly high", considering the central role the applicant played, the quantity of the drug, and his Honour's finding that the offence was entered into for financial reasons, albeit that the financial reward was "modest".
[10]
Ground 1 - His Honour erred in failing to find and/or take into account the unchallenged expert evidence of a nexus between the applicant's offending behaviour and his pre-existing comorbid mental disorders
In relation to this ground, the applicant points to evidence that he suffered from a number of mental conditions related to his commission of the offence. He submits that the evidence was such as to require the sentencing judge to take his mental condition into account and, in particular, the "nexus" between his mental condition and the offending behaviour.
[11]
The evidence relied on in relation to this ground
As noted above, the applicant tendered at his sentence hearing, without objection, a report of Professor Woods. Professor Woods sets out the history taken from the applicant with respect to his illicit drug use which began when he was approximately 18 years old. The applicant told Professor Woods that, by the time he agreed to become involved in the offences, he was "smoking and injecting crystal methamphetamine on a daily basis; had accumulated a drug debt which he estimated to be at least $10,000; and was engaging in pathological gambling". The report set out the applicant's history with respect to his three domestic relationships and noted that he had a child with each of those three partners. Professor Woods expressed the opinion that the applicant suffered the following conditions:
1. "Other Specified Personality Disorder, Mixed Features but predominantly Dependent Features (DSM-5 301.89)";
2. "Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-5 309.28) and melancholic grief";
3. "Stimulant (crystal methamphetamine and cocaine) Use Disorder (DSM -5 304.20 and 304.40), in remission since being received into a controlled environment";
4. "Alcohol Use Disorder (DSM-5 303.90) in remission since being received into a controlled environment"; and
5. "Gambling Disorder (DSM-5 312.31), clinically severe, in remission since being received into a trolled environment".
Under the heading "Relevance and Nexus", Professor Woods said:
"Mr Bott exhibits enmeshed symptoms of the diagnosed Mental Disorders referred to throughout this report. Having regard to the available psychosocial history, there is good clinical reason to conclude that his offending behaviour occurred in circumstances of an attempt to support his addictions (i.e., drugs, alcohol and gambling).
Further, the chronic nature of his melancholic grief-based mood disturbance following the loss of his domestic relationships impacted on his mood in general, thereby increasing his vulnerability to loss of self-regulation and exacerbation of his addiction.
Put very simply, a nexus exists between his offending behaviour and pre-existing co-morbid mental disorders."
In an annexure to the report, Professor Woods provided additional information in relation to the diagnosis of Adjustment Disorder. He stated that the essential feature of an Adjustment Disorder is "the development and onset of emotional and/or behavioural symptoms in response to an identifiable stressor [or stressors]", which generally resolves within six months of the cessation of the stress source. He stated:
"The symptoms and/or behaviours are clinically significant, generally, but not always, out of proportion to the "objective severity or intensity" of the stressor(s). The symptoms manifest in significant impairment in social, occupational, or other important areas of functioning."
[12]
The potential relevance of a mental condition
In The Queen v Guode (2020) 267 CLR 141; [2020] HCA 8, Kiefel CJ, Gageler and Nettle JJ (at [8]) adopted the following statement of principles set out by the Victorian Court of Appeal in R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (at [32]):
"1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment." (footnote omitted)
None of the above matters was stated as an absolute. That is, each is expressed as a matter which may, depending on the circumstances, require consideration. Further, the impact of a mental illness or condition on the purposes of sentencing does not necessarily pull in one direction in that the presence of a mental illness may require that greater weight be given to specific deterrence in the sentencing exercise: R v Engert (1995) 84 A Crim R 67 at 68; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
The applicant relied on the first and the third of the matters listed in R v Verdins. With respect to the first matter, in Director of Public Prosecutions (Cth) v De La Rosa, McClellan CJ at CL stated (at [177]):
"Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence …"
[13]
The asserted error in the sentencing judge's reasons in relation to the applicant's mental condition
Acknowledging the need to assess each case on its particular facts, the applicant submitted the circumstances of this case were such as to require a finding that the applicant's moral culpability was reduced by dint of the impact of his mental condition.
In assessing the applicant's complaint, it is important to understand the structure of the sentencing judge's reasons. His Honour set out the offences, the relevant maximum penalties and, in the case of the supply offence, the standard non-parole period. His Honour, under separate headings, set out the facts, the seriousness of the offences, the subjective case, and finally the appropriate sentence.
In the context of dealing with the seriousness of the attempt to possess offence, his Honour indicated his acceptance of the applicant's evidence that he was paid $5,000 for his part in the offence and noted that the amount of the expected reward was relevant to the objective gravity of the offending, referring to Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218; [2013] VSCA 50 ("DPP v Maxwell") and Petkos v R [2020] NSWCCA 55. His Honour continued:
"I accept that he became involved in the offence to earn money to fund his drug addiction and pay off his drug and gambling debts."
A similar finding was made in relation to the supply offence. His Honour, immediately after making the observation set out above, said he would make reference to these matters when dealing with the applicant's subjective case. His Honour's reference to the relevance of these matters to the applicant's subjective case reflects the difficulty in enforcing a strict dichotomy between matters said to bear on "objective gravity" and matters that are to be regarded as relating to an offender's subjective case. For present purposes, it is sufficient to note that the person's motive for committing an offence has generally been regarded as relevant to objective seriousness: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]; DS v R; DM v R at [64]. Motives, of course, can be more or less direct. Here, relevantly, his Honour included within the applicant's motive, not just a motive to obtain a financial reward, but a motive to do so to fund his addiction and pay his drug and gambling debts.
[14]
Ground 2 - The sentence imposed for the attempt to possess GBL offence is manifestly excessive
A summary of the principles to be applied to a complaint of manifest excess was set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:
"When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The applicant's complaint as to manifest excess is limited to the sentence imposed with respect to the offence of attempting to possess a commercial quantity of GBL. In Arnaout v R (2008) 191 A Crim R 149; [2008] NSWCCA 278, different views were expressed as to whether an appeal against sentence is available against a single sentence where that sentence was imposed as part of a number of sentences, or whether, in such a case, the "sentence" is the composite of the various individual sentences. Basten JA expressed the view the appeal was against the individual sentences, Price J took the view the appeal was against the composite sentence, while Hislop J found it unnecessary to decide. Since that time, the approach of Basten JA has been followed in at least McMahon v R [2011] NSWCCA 147 and AB v R [2013] NSWCCA 160.
[15]
Sentencing for an offence involving GBL
The applicant submitted that there is a "dearth of intermediate appellate cases" dealing with sentences imposed for offences against s 307.8(1) of the Criminal Code where the drug involved is GBL and there is a consequent difficulty in discerning a sentencing pattern. This observation draws attention to the relevance of the particular drug the subject of the offence.
The High Court in Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15, was critical of an approach by which courts classified different drugs as low, medium, and high range drugs based on the Court's perception of the level of harm occasioned by those drugs. The High Court said (at [10]):
"An equally serious difficulty for the appellant's argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties. In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, 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. …"
As was pointed out in DPP v Maxwell (at [28]), the above does not deny the ongoing relevance of an offender's anticipated financial return. Indeed, the Victorian Court of Appeal in DPP v Maxwell went further (at [30]) in accepting as relevant, not only the particular offender's anticipated financial reward, but, where known, the wholesale or retail value of the drug. That is, the Court accepted that where known, the value of a commercial quantity of a particular drug is relevant for the purposes of differentiating the offence from other offences against the same provision involving a commercial quantity of a drug with a different value.
In DPP v Maxwell, the Director in appealing against the inadequacy of the sentence, pointed to a pattern of sentencing for offences involving the importation of a commercial quantity of GBL, which was submitted to be "indefensible" as it did not align with the sentences imposed in relation to other drugs and should be "correct[ed]". The Victorian Court of Appeal said (at [33]-[36]):
"33. We would reject this submission. In our opinion, the consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential to which we have referred. Indeed, the very consistency of the sentencing practice can be seen to reflect the fact that sentencing judges view a drug offender's culpability as materially reduced in a case such as this, where the likely financial reward is relatively small.
34. Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general. As has often been said, the sentence to be imposed for a drug importation (or trafficking) offence must signal both to the offender, and to other would‑be offenders, that the potential financial rewards to be gained from such activities are outweighed by the risk of severe punishment. Obviously enough, the greater the anticipated reward, the more powerful the deterrent message must be. The converse is also true.
35. There is another reason why general deterrence may be seen to be of increased importance if the anticipated reward from dealing in illicit drugs is high. Where the potential to reap large profits from dealing in a particular proscribed drug is great, the potential for the commission of offences involving that drug - with corresponding risk of harm to the community - might be regarded as greater. Thus, considerations of general deterrence and community protection are of more significance in those cases than in a case like the present.
36. To treat a low‑reward drug like GBL differently for sentencing purposes is in no way inconsistent with the statutory assumption that a commercial quantity of drug A is to be viewed for sentencing purposes as being just as harmful as a commercial quantity of drug B. But it is to recognise that the very high maximum penalties fixed for offences involving a commercial quantity (or more) reflect a legislative intention to visit very heavy punishment on drug profiteers. Plainly enough, [the respondent] does not fall into that category." (footnotes omitted)
[16]
Evidence on resentence
On resentence, the applicant relied on his own affidavit. The respondent objected to one paragraph of the affidavit in which the applicant expressed his understanding that he would not be able to progress to a minimum-security classification until he was within five years of eligibility for parole. Pursuant to leave granted, the respondent provided references to the Crimes (Administration of Sentences) Regulation 2014 (NSW) and various publicly accessible Corrective Services documents regarding the classification of prisoners and indicated that consideration of that material failed to substantiate any policy as attested to by the applicant. Having regard to the material provided by the respondent, I would admit the paragraph the subject of objection but will regard its relevance as limited to the applicant's understanding.
Without recounting the detail, the applicant's affidavit suggests he has made significant progress in custody. His experience has been made more difficult by the death of his father the day after the proceedings on sentence in the District Court. An application to attend the funeral in person, which the applicant's mother offered to pay for, was refused. The gaol was unable to facilitate the applicant viewing a livestream of the event. The applicant stated he feels a sense of guilt and responsibility for the stress he caused his father and its possible connection with his father's death. The applicant maintains a close connection with his family. He has received visits in prison from Mr King and Mr Van Buuren, both of whom had provided references which attest to their ongoing support and which includes an offer of employment by Mr King on the applicant's release. In addition, the applicant has worked and participated in courses whilst in custody.
[17]
Resentence
In resentencing, I make explicit my finding that the applicant's addiction was, least in part, affected by the Adjustment Disorder from which he was suffering. While the applicant's Adjustment Disorder was a response to life stressors, Professor Woods' report made plain this was an abnormal response and was to be properly regarded as a mental condition. While, no doubt, various factors impacted his decision to become involved in the offence, intertwined among those factors was some impairment in his judgment as a result of his addiction, which as I have said, was, in turn, at least in part, related to a mental condition. I am prepared to find that the applicant's moral culpability was reduced as a result but would stress, that any impact is relatively slight. The applicant was far removed from an offender labouring under serious psychiatric illness directly impacting his capacity. Most persons suffering from an illness of the type suffered by the applicant do not resort to serious drug abuse, or the commission of crimes as serious as the present. I would also moderate the weight to be given to general deterrence on the basis that an offender suffering a mental condition will generally not be regarded as an appropriate vehicle for the making of an example to others. Again, any moderation should be slight, and general deterrence, therefore, remains a significant sentencing consideration.
As was observed by the sentencing judge, the applicant had a criminal record but it was relatively minor. Consistent with the history of addiction, the applicant has been convicted of driving under the influence of alcohol or drugs and driving under the influence of alcohol, both of which were in 2000. He was convicted of possession of a prohibited drug in 2015 and possession of equipment for administering prohibited drugs in 2020. Otherwise, his record comprised an assault in 1996, some traffic offences, and two relatively minor dishonesty offences. By way of penalty, the applicant had not received more than a fine.
Other than the matters referred to immediately above, I would adopt the findings of the sentencing judge and his statement of the principles relevant to this case.
With respect to the offence of attempting to possess, having regard to the maximum penalty for the offence and the objective seriousness of the particular offence as discussed above, together with the subjective case of the applicant, including the material tendered on resentence, I would start with the sentence of 10 years. I would apply a discount of 25 percent for the utilitarian value of the plea of guilty and the applicant's willingness to facilitate the course of justice, resulting in a head sentence of 7 years and 6 months. I would set a non-parole period of 4 years and 6 months, noting the impact of cumulation on the total sentence.
[18]
Amendments
12 October 2023 - Minor amendment to headnote
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Decision last updated: 12 October 2023
The efficacy of sentencing would be compromised if variances in demand, price and prevalence of trade, as between different drugs and allowing for changes in these parameters over time, were to be disregarded. The recognition of these factors is not in conflict with the High Court's decision in Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15. That case was concerned with the elusive concept of relative harm, to users and to society, of different prohibited substances. Comparison of the pernicious effects of particular drugs, on individuals and on society, is an ill-defined inquiry, beyond the capacity and the authority of courts to assess, either factually or evaluatively. The following extracts from the joint reasons of Gleeson CJ, Hayne, Crennan and Kiefel JJ encapsulate the basis of the decision:
[9] ... Harm to users and society is a protean concept. Counsel had understandable difficulty explaining exactly what the proposition means, let alone demonstrating, by evidence available to the sentencing judge or matters of which a court could take judicial notice, that it was true. ... As the Victorian Court of Appeal pointed out in R v Pidoto and O'Dea (2006) 14 VR 269 at 282 [59], "questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community." ...
[10] An equally serious difficulty for the appellant's argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties. In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, 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. ...
Differences between drugs with respect to demand, relative commercial value from time to time and prevalence of offending are concrete factual matters, amenable to proof and/or judicial notice and having a direct bearing upon the sentencing factors of objective seriousness and the need for general deterrence.
In my view the limited number of sentencing decisions concerning offences that have involved GBL, as referred to by Dhanji J, are sufficient to demonstrate that the courts have imposed penalties in a range that reflects acceptance of significantly lower commercial value of this drug compared to, for example, methamphetamine. The range reflects lower objective seriousness and a reduced requirement for deterrence to counter financial temptation. Given that the commercial value of GBL was considered explicitly in DPP v Maxwell, it is significant that the prosecution refrained from adducing evidence on that topic in the present case. In the circumstances I consider that the applicant's manifest excess ground should be assessed taking into account that the pattern of penalties for GBL offences is notably less than for offences concerning other drugs, methamphetamine in particular.
Additionally, when considering other sentencing decisions that may be relevant to the alleged manifest excessiveness of the sentence for sequence 2, the Court should make due allowance for the very great frequency of importing, possessing and supplying large quantities of methamphetamine, contrary to Commonwealth and State drug prohibition laws. The prevalence of that type of offending is demonstrable from court lists and has, in my view, contributed to a pattern of very substantial sentences. It is apparent from the particulars of drug offences prosecuted in the New South Wales District Court and from the range of appeals that come before this Court that illegal importation, possession and/or supply of GBL is comparatively infrequent. Dhanji J has observed that the sentence imposed on the applicant for sequence 2 was in the range of sentences that have been passed for similar offences involving drugs that are recognised as having greater value. Likewise, the sentence may be said to be within a range appropriate to a much more prevalent type of offending, namely, with respect to methamphetamine.
I agree that error is shown in respect of the sentence for sequence 2 and, as indicated above, I agree with Dhanji J's disposition of the appeal, including his Honour's reasons for the sentence that he proposes should be substituted.
DHANJI J: The applicant, Grant Bott, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Arnott SC DCJ in the District Court at Sydney on 6 April 2022.
The applicant pleaded guilty in the Local Court and was subsequently sentenced for the following offences:
1. Seq 2: attempt to possess a commercial quantity of a border-controlled drug, namely gamma-butyrolactone (GBL), reasonably suspected of having been unlawfully imported, contrary to ss 307.8(1) and 11.1 of the Criminal Code (Cth); and
2. Seq 6: knowingly take part in the supply of a commercial quantity of a prohibited drug, namely 2.9 kilograms of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
The applicant was also sentenced for the following related offence, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW):
1. Seq 5: possessing a prohibited drug, namely 14 grams of methylamphetamine, contrary to s 10 of the Drug Misuse and Trafficking Act.
While not particularised in the charge, there was no issue the offence charged in sequence 2 involved 755 kilograms of GBL.
The maximum penalty for an offence of attempting to possess a commercial quantity of a border controlled drug is imprisonment for life and/or a fine of 7,500 penalty units. A commercial quantity of GBL is 1 kilogram. The maximum penalty for the supply of a large commercial quantity of a prohibited drug is also imprisonment for life. A standard non-parole period of 15 years applies. A large commercial quantity of methylamphetamine is 500 grams.
The maximum penalty for possession of a prohibited drug is 2 years imprisonment and/or a fine of 20 penalty units.
The applicant was sentenced to the following terms of imprisonment:
Seq 6: a term of 3 years and 9 months with a non-parole period of 2 years and 6 months commencing on 16 September 2020; and
Seq 2: a term of 11 years and 3 months with a non-parole period of 7 years commencing on 16 February 2022.
In respect of the related offence, his Honour convicted the applicant but imposed no other penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The total effective sentence was 12 years and 8 months imprisonment, with a non-parole period of 8 years and 5 months expiring on 15 February 2029.
The applicant seeks leave to appeal on the following grounds:
"Ground one: His Honour erred in failing to find and/or take into account the unchallenged expert evidence of a nexus between the applicant's offending behaviour and his pre-existing co-morbid mental disorders; and
Ground two: The sentence imposed for the attempt to possess GBL offence is manifestly excessive."
Later that day, the applicant, again using the falsely subscribed telephone, was contacted by the owner of the Oxford Falls property regarding the status of the delivery. The applicant told the owner that the delivery would be tomorrow and enquired about the availability of a forklift, following which the owner asked, "what it weighs", to which the applicant responded, "they said 160 kilos a drum".
The next day, 16 September 2020, the applicant again spoke to FM Global about the time of delivery. At 11:34 am, an Australian Federal Police officer, purporting to be the delivery driver, called the applicant and told him that the delivery would arrive in roughly an hour. During that call, the applicant identified himself as "Jan" and confirmed he was in Liverpool and would be present for the delivery. The applicant left his home in the rented Toyota van and called the owner of the Oxford Falls property to inform him of the delivery time.
On his way to the Oxford Falls property, the applicant stopped at Bunnings to purchase a further 6 x 25 litre blue plastic drums, a key safe, a padlock, a watering can, and three drum taps. The undercover Australian Federal Police officers arrived at the Oxford Falls property at around 1:05 pm, and the applicant arrived shortly after, upon which he signed for, and took possession of, the consignment. The applicant introduced himself as "Jan" and directed the undercover Australian Federal Police officers to place the consignment in the leased shipping container.
The applicant was arrested at Oxford Falls around two and a quarter hours later. In that time, the applicant had opened one of the drums, fixed a tap to its lid, and drained some of the liquid into six of the blue plastic drums purchased from Bunnings. He had also locked the key for the shipping container in a lock box attached to the container. Upon his arrest, the applicant gave police the combination for the lock. A search of the Toyota rental van located a Victorian driver's licence in the name of Januario Siamo with an image of the applicant, three mobile phones, and drug paraphernalia.
The applicant declined to be interviewed by police but made a statement to the effect that he had not paid for the lease of the shipping container.
His Honour found the supply offence to be in the "lower end of the range of objective seriousness". His Honour found the applicant took part by providing the premises to hide the drugs while he waited for further instructions. His Honour accepted that while he may have not been aware of the precise quantity, he knew that it was a substantial quantity, noting the amount involved was 5.8 times the threshold for a large commercial quantity. His Honour found the applicant was involved for an anticipated reward of $5,000, again concluding the applicant became involved in the offence to fund his drug addiction and pay off his debts.
In relation to the applicant's subjective case, his Honour noted that the applicant had a limited criminal history at the time of the offending and considered his background, including that he was known to be a "caring and devoted father" and that he had struggled with employment as a result of the COVID-19 pandemic.
His Honour considered the applicant's history of drug use and the report of Professor Woods, and accepted that, at the time of the offences, the applicant had a severe drug use disorder. His Honour also accepted that the applicant had a personality disorder predominately of a dependent nature and that he had a moderate to severe gambling disorder at the time of his offending. His Honour noted that the offending occurred in a context of what was described by Professor Woods as a "melancholic grief-based mood disturbance from an Adjustment Disorder following the failure of his domestic relationships". His Honour did not consider the applicant's moral culpability was reduced as a result of this, a matter discussed in more detail below.
The sentencing judge found that the applicant had demonstrated remorse and contrition. His Honour also found that the applicant had reasonable prospects of rehabilitation, in particular noting that, since being in custody, the applicant had abstained from illicit drug use, participated in a number of courses, and had support from family and friends. His Honour had regard to the impact of the COVID-19 pandemic on the applicant's incarceration.
After the application of a discount of 25 percent for the utilitarian value of the applicant's plea, his Honour imposed the sentences as set out above.
Senior counsel for the applicant submitted that an understanding of the applicant's functioning at the time was revealed by the combination of the above and the evidence given by the applicant. In his oral evidence, the applicant said:
"… I did this sort of thing because I was so under the influence of drugs, I wouldn't have done it if I had a clear mind and, and I - 'cause I haven't, I haven't had a clear mind like this for ten years …"
In addition to the focus on the applicant's Adjustment Disorder and his drug and gambling disorders, counsel for the applicant noted the evidence that, at the time the offences were committed, the applicant was effectively itinerant and unable to find work. In oral submissions, counsel said these aspects of the applicant's situation "feed on each other".
I would understand the above, consistent with R v Verdins, to accept that a factor on sentence that sounds in a reduction in moral culpability may (not will) also reduce the gravity of the offending, and thus the limits of the punishment which is proportionate to the crime, as well as, potentially, the weight given to other purposes of sentencing, including denunciation (and see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96]). This is consistent with the approach to criminal responsibility which acknowledges a person may be so affected by a mental illness that they are not responsible for what would otherwise be a crime. In the case of homicide, a person, while still criminally responsible, may be impaired by a mental condition to such an extent that their culpability is better reflected in a conviction for (voluntary) manslaughter rather than a conviction for murder. In the context of involuntary manslaughter, there is a close correlation between moral culpability and legal responsibility: Wilson v The Queen (1992) 174 CLR 313 at 334; [1992] HCA 31; Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [99].
The nature of the relationship between a mental condition and the commission of an offence that may lead to a finding of reduced moral culpability was discussed in DS v R; DM v R. The Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) said (at [95]) that the "form of connection between the offence and its commission might be described as 'a' causal connection, but it need not be the direct or precipitating cause".
As was pointed out in DS v R; DM v R, findings of objective seriousness and moral culpability are but steps along the way to assist a sentencing judge in determining the weight to be given to the various purposes of sentencing. Their Honours said (at [92]-[93]):
"92 … discussions about these concepts is not an end in itself. With the exception of what follows from the standard non-parole provisions of the [Crimes (Sentencing Procedure) Act], 'objective seriousness' and 'moral culpability' are not statutory phrases. The discussion of these concepts is not meant to burden sentencing judges but to assist them by inviting, and to an extent requiring, them to determine the seriousness of the offence and how much moral blame the offender bears, but only as part of a consideration of the weight to be attached to the various sentencing factors and for the purpose of undertaking the instinctive synthesis described in Markarian.
93 So far as moral culpability is concerned, each of the discussions of this concept in Veen (No 2) (at 476 to 477), Muldrock (at [54]), Bugmy (at [44]) and Munda (at [54]) considered how the offender's reduced moral culpability, and the reason for that reduction, bore upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution, and promotion of rehabilitation, etc. In some cases, where there is a factor that clearly operated to reduce an offender's moral culpability, it may suffice if the sentencing judge made it clear how that factor affected the sentencing considerations without necessarily using the phrase 'moral culpability' (Khan v R [2022] NSWCCA 47 at [1] to [12]). Further, in some cases, it will be clear how an express determination that an offender's moral culpability was reduced bore on the sentencing exercise. In other cases, that may need to be expressly stated."
I pause to note that I do not understand anything said in DS v R; DM v R as impacting the importance of a proper appreciation of the gravity of an offence. Without such an understanding, the principle of proportionality, which operates as a fundamental constraint in the exercise of the sentencing discretion, cannot be properly applied: see Veen (No 2) at 472-3, 485-6, 490-1.
In the present case, the sentencing judge, having had regard to the applicant's broader motive for the commission of the crime when assessing objective gravity, could not revive that consideration on the basis it was separately relevant to the applicant's moral culpability. The applicant, however, contends that the evidence went further than simple motive to fund addiction and repay debt. He submitted that the evidence of drug addiction, together with the presence of an Adjustment Disorder and the applicant's related domestic circumstances, led to desperate circumstances and an impairment in judgment such that the applicant's moral culpability was reduced. It is necessary to deal with this contention.
As foreshadowed when dealing with objective seriousness, his Honour returned to the relationship between the applicant's drug use and the commission of the offence in dealing with the applicant's subjective case. His Honour accepted the applicant had "a severe drug use disorder", "a moderate to severe gambling disorder", and "a personality disorder". His Honour said:
"The offender stated that he committed the offences in circumstances where he had accumulated large drug debts and to maintain his drug and gambling addictions. It also occurred in the context of what Professor Woods described as 'his melancholic grief-based mood disturbance' from an Adjustment Disorder following the failure of his domestic relationships. I do not consider, if it be suggested. That the offender's drug and gambling addictions and Adjustment Disorder reduces his moral culpability for the offences."
It is thus apparent that his Honour considered the question of a potential reduction in moral culpability and rejected it. The sentencing judge's statement, "if it be suggested", reflects an ambivalence in the manner in which submissions were put on this issue.
Before the sentencing judge, counsel for the applicant submitted that the applicant's "judgment was entirely clouded by his drug use". Subsequently, having referred to the applicant's thinking as "addled", the following exchange took place between the applicant's counsel and his Honour:
"HIS HONOUR: The professor says on p 16:
'Mr Bott exhibits enmeshed symptoms of the diagnosed mental disorders referred to throughout this report. Having regard to the available psychosocial history, there is a good clinical reason to conclude this offending behaviour occurred in circumstances of an attempt to support his addictions, drugs, alcohol and gambling.'
So the first items are drugs, alcohol and gambling. He goes on to say, 'Further, the chronic nature of his melancholic grief-based mood disturbance following loss of his domestic relationships', so his broken-down marriages, so there are those two categories, and he then says at the top of page 17, 'Put very simply, a nexus exists between his offending behaviour and pre-existing comorbid mental disorders.' So there are broken-down marriages, drugs, alcohol and gambling. Do you say his moral culpability for the offences is diminished?
STRICKLAND: I would submit this. He committed the offences fully voluntarily. There was no duress, financial, physical or otherwise but, at the time he committed the offences his judgment was significantly impaired for the reasons identified by Professor Woods. If your honour accepts that then general deterrence, which is a very significant factor in matters of this kind, still have an important role but it's somewhat modified because of his state of mind …"
Insofar as the applicant was critical of his Honour in failing to provide reasons for not finding the applicant's moral culpability to be reduced, it is to be stressed that the nature and content of the reasons required for judicial decisions is informed by the submissions made. In circumstances where it had not been submitted that the applicant's moral culpability was reduced based on any mental condition, I would not find fault with his Honour's reasons.
The question articulated in the ground of appeal is error in failing to find, or take into account, the nexus established by the evidence between the applicant's offending and his mental disorders. That is, the complaint is that, despite the submissions made below, the sentencing judge was obliged to find there was a nexus between the applicant's offending and his mental condition and, as the ground was developed, this necessarily impacted on the applicant's moral culpability. As noted above, however, his Honour, in dealing with the objective seriousness of the offences, had regard to the applicant's motive, that being to fund his addiction and pay off his gambling debts.
If the applicant's drug addiction was considered a matter of personal choice, a finding that it impacted the objective gravity of the offending was overly generous. In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA, rejecting, as a general proposition, that drug addiction operates as a mitigating factor on sentence, Spigelman CJ said (at [177]):
"The circumstances in which motive may be a mitigating factor should, in my opinion, be confined to cases in which motive impinges upon the moral culpability of the offender. This can include mental, emotional or medical problems or impulsive conduct. In any event the degree to which motive may be pertinent must depend on the whole of the circumstances: R v White (Court of Criminal Appeal, 23 Jun 1998, unreported) at 24."
It can be accepted that, in considering the applicant's motive for committing the offence, his Honour referred only to the drug addiction and did not make any reference to any relationship between that drug addiction and the other mental conditions referred to by Professor Woods. Professor Woods, however, did not suggest the applicant's mental condition to be a direct causative factor leading to the commission of the offence. His opinion was that "the chronic nature of his melancholic grief-based mood disturbance following the loss of his domestic relationships impacted on his mood in general, thereby increasing his vulnerability to loss of self-regulation and exacerbation of his addiction."
There was no evidence as to precisely what was meant by Professor Wood's use of the expression, "loss of self-regulation" in the context of the applicant, and, in particular, in the context of his offending behaviour engaged in between 4 September and 16 September 2020. While it may have impacted on the applicant's judgment in a manner significant to his decision to become involved in the offence, the report, read in the context of the offending, and the applicant's evidence as to his motivations, suggests the various factors ultimately impacted on the applicant's ability to control his addiction which, in turn, led to the offending behaviour. This provided some foundation for regard to be had to the applicant's drug addiction with respect to his motive, and, in turn, the seriousness of the offence.
As was observed in DS v R; DM v R (at [91]), the question of reduction of moral culpability begs the question, "reduction from what?", the answer of course being a reduction from the moral culpability that would otherwise correspond to the gravity of the offending. Here, as observed above, that gravity had already been assessed having regard to the circumstances of the offending, including the applicant's drug use. The complaint as to the failure to take into account the nexus between the applicant's conditions and the offending behaviour to reduce his moral culpability for the offending must fail.
I would reject ground one.
No issue was taken, in the present case, with the availability of an appeal as framed by the applicant. I would follow the approach taken by Basten JA in Arnaout v R, and that in McMahon v R and AB v R, which, in any event, I regard as correct. Indeed, the argument is stronger in the present case where there is a mix of State and federal offences. While I prefer the approach of Basten JA in Arnaout v R, even if the appeal was viewed as an appeal against the total sentence, in my view, a finding that one component of that sentence was manifestly excessive would demonstrate error in the exercise of the sentencing discretion.
The starting point for the sentence imposed with respect to the attempt to possess offence, prior to the allowance of 25 percent for the applicant's plea of guilty (based on its utilitarian value and the applicant's willingness to facilitate the course of justice) was 15 years. The applicant contends this was erroneously high.
The quantity of the drug was 755 kilograms. As noted above, the commercial quantity for GBL is 1 kilogram, at which point the maximum penalty for an offence of attempting to possess the drug is imprisonment for life. Clearly, the offence is of some seriousness. The weight of the drug involved was, however, but one factor. Importantly, it was not, in this case, the primary factor.
What the applicant actually did is central to assessing his criminality: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19]. The applicant undertook an important role in the criminal enterprise. During a period of 14 days, he acted to facilitate the receipt of a very significant quantity of a border-controlled drug, which had been imported with a view to its distribution to the wider community for the purpose of profiting the criminal organisation responsible. The applicant arranged for the delivery and storage of the drug. He received the drug at the storage facility and began the process of decanting the contents of the drums into smaller containers, no doubt to facilitate the supply of the drug to those involved at the next level of distribution.
It is necessary, however, to assess the acts of the applicant having regard to the context provided by other relevant factors, where known. In Wong v The Queen; Leung v The Queen (2001) CLR 584; [2001] HCA 64, the High Court said (at [64]):
"In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. 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. We deal later with the significance to be given to the weight of the drug imported. 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. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles." (footnotes omitted)
In the circumstances of the present case, there is no suggestion that the applicant had any control over the quantity of the drug. He was directed by others. His role required almost no initiative on his part. His involvement was not suggested to have been the result of an ongoing role in a criminal organisation. Rather, he was recruited for, and agreed to perform his role, in the context of the single importation. His reward for his involvement, given the risks, was small. The present case is a matter where it can fairly be said that the applicant's role was more significant than the weight of the drug: Wong v The Queen; Leung v The Queen at [69]; Decision Restricted [2019] NSWCCA 102 at [50]-[53]; Melikan v R [2008] NSWCCA 156 at [42]; R v McDonald (2002) 128 A Crim R 44; [2002] NSWCCA 34 at [33].
An application for special leave to appeal against the decision in DPP v Maxwell was refused: The Director of Public Prosecutions (Cth) v Maxwell [2013] HCATrans 178 (16 August 2013).
It should be noted that in DPP v Maxwell there was evidence available to the Court of both the wholesale and retail value of the drug (see at [8]). There was, in the present case, no evidence of the value of the GBL, or how it might compare with the corresponding commercial quantities of more common drugs such as methamphetamine or cocaine. Given what has been said about the applicant's role, there is no suggestion that this was a matter within his knowledge. It was a matter as to which, clearly, the prosecution was in a better position to provide expert evidence (as is not uncommonly done). Nonetheless, this Court is required to assess the applicant's complaint based on the evidence available to the sentencing judge.
The relevance that the particular drug was GBL, as opposed to some other, more common, prohibited drug, was considered in the context of the Drug Misuse and Trafficking Act in Petkos v R. In Petkos v R, the applicant complained that the sentencing judge erred in failing to take into account the "enormous reward differential" between GBL and other drugs in accordance with DPP v Maxwell. Hamill J (at [25]) found it was unnecessary to determine whether DPP v Maxwell has equal application to State legislation, but noted it was not strictly binding on the sentencing judge. His Honour (at [26]) pointed to potential difficulties in applying the decision but did accept that "that there may be cases where it might be appropriate for sentencing courts in this State to take into account the analysis relating to drugs like GBL by the Victorian Court of Appeal in [DPP v] Maxwell". His Honour rejected the applicant's complaint on the basis that the sentencing judge took into account the modest profit to be received by the applicant. This was sufficient to deal with the specific ground of appeal in Petkos v R. The complaint here, however, raises the question of sentencing practices with respect to importation offences involving GBL and, unlike in Petkos v R, the decision in DPP v Maxwell must be confronted.
Before leaving the decision in Petkos v R, I would note that there is a relevant difference to be drawn between the State legislation and the federal legislation. The Drug Misuse and Trafficking Act provides a greater degree of differentiation between GBL and more common drugs. Under the Drug Misuse and Trafficking Act, the large commercial quantity (leading to the maximum penalty of life imprisonment) of GBL is 4 kilograms as compared to 500 grams for methylamphetamine and 1 kilogram for cocaine and heroin. By comparison, under the Criminal Code, the commercial quantity (leading to the maximum penalty of life imprisonment) for GBL is 1 kilogram as compared to 0.75 kilograms for methamphetamine, 2 kilograms for cocaine, and 1.5 kilograms for heroin. Thus, prior to any judicial discrimination between the drugs, the State legislation itself provides a greater degree of differentiation between GBL and other more commonly encountered drugs.
Returning to the decision in DPP v Maxwell, while it is a decision of the Victorian Court of Appeal, it is one dealing with federal legislation. In terms of principle, it should be followed unless it is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]. Further, the need for consistency in sentencing patterns between States in the context of federal offences has been stressed: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [57]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [18].
As submitted by the applicant, there are relatively few authorities dealing with sentences for importing or attempting to possess a prohibited import in the context of GBL. Before the sentencing judge, the respondent provided a table containing a number of, what were described as, comparative cases. Of the eight cases in the table, only two related to GBL. The other six cases related to methamphetamine or cocaine. The potential financial reward for dealing in these drugs is notoriously high. With respect to the two cases involving GBL, summarised before the sentencing judge, one was DPP v Maxwell, and the other was a decision of this Court predating DPP v Maxwell: Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150.
The appendix to the decision in DPP v Maxwell provides a table of results in cases involving the importation of GBL. The table confirms the Director's contention in that case; that is, the existence of a pattern of sentencing for offences involving GBL involving significantly lower sentences than those imposed with respect to other drugs. The cases in the table include cases from New South Wales, South Australia, Queensland, as well as Victoria, and are primarily first instance decisions.
In Davidson v R, the quantity involved was a little over 30 kilograms and thus significantly less than that here. That quantity was, however, across four separately charged offences in which the offender was himself the importer of the drug and the effective principal in the offending. The total effective sentence was 8 years with a non-parole period of 4 years, 5 months and 15 days. The sentence was imposed after trial. Simpson J (as her Honour then was) in her reasons for dismissing the sentence appeal, observed (at [97]), "GBL is not a drug with which the courts of New South Wales have acquired great familiarity". Given the number of offences, the offender's role, and the absence of any discount for a plea, the sentence in Davidson v R also appears to conform to a pattern of more lenient sentences for offences involving GBL. The significance of the decision in Davidson v R is arguably affected by the fact that, while it was decided after Adam v The Queen, it was, as noted above, decided before the decision in DPP v Maxwell.
The only other sentence involving GBL to which the Court below was referred, was the sentence imposed in the District Court by Yehia SC DCJ (as her Honour then was) in R v Abdelrahman Masri (District Court (NSW), 12 March 2020, unrep). Factually, this case was closer to the present case than either of the other GBL cases noted above. The offender's role was not dissimilar to that of the present applicant. The quantity of drug was very high, and indeed, at over 1870 kilograms, was considerably higher than the amount with which the applicant was involved. Perhaps the most significant distinguishing factor was a finding that the offender, in that case, was not aware of either the precise quantity of the drug, or that it was a very substantial quantity. He was also found to have mental health issues which warranted a "modest" reduction in the weight to be given to general deterrence and which negatively impacted on the burden of his imprisonment. The sentence imposed, after a 25 percent reduction for the plea of guilty, was 6 years and 3 months, with a non-parole period of 3 years and 3 months.
The respondent submitted that the decision in R v Abdelrahman Masri could be seen as particularly lenient or otherwise distinguishable on its facts. The first proposition may or may not be correct. Even if correct, it was not submitted the decision was wrong. As to the second proposition, results are not principles. All sentencing cases involve different facts. For comparison purposes, allowance must be made for the extent of any differences, noting that the exercise is not the same as that undertaken when determining a complaint based on parity.
The reasons for judgment in R v Abdelrahman Masri make no reference to the value of the drug. Her Honour's reasons indicate that she was provided with a schedule of cases, however her Honour observed that, of the various cases included in the schedule, only one involved GBL. That was a case of R v Phelps (District Court (NSW), Ellis DCJ, 5 September 2014, unrep). The offender, in that case, was sentenced to imprisonment for 3 years to be released after 15 months. Her Honour noted the offending in that case was "much less serious", involving a significantly lesser quantity of GBL, namely 25 kilograms. The starting point for the sentence was 5 years, to which a 40 percent discount was applied for the offender's plea and assistance. Even allowing for the discount, the sentence imposed in R v Phelps is significantly less than what might have been expected for a sentence involving 25 times the commercial quantity of methamphetamine.
In passing sentence in R v Phelps, Ellis DCJ observed that the value of the drug in that case was said to be approximately $180,000 and expressed the opinion that if the offence involved 25 kilograms of a substance such as heroin "the value would have been in the millions". His Honour also referred to decisions of the District Court in R v Sopronick (District Court (NSW), 7 February 2014, unreported) and R v Colledge (District Court (NSW), 20 April 2010, unreported) and noted that, in those cases, (which I note were both decided after Adam v The Queen), Berman SC DCJ and Hosking SC DCJ respectively observed that "the type of drug obviously impacted on the maximum penalty and that … GBL did not have the same notoriety".
The above analysis raises a conundrum as to what to do in the present case. On the one hand, there is no evidence of the value of the drug so as to distinguish the seriousness of the offence from an offence involving a more commonly occurring prohibited drug in relation to which courts are either provided with a value, or the value and profits to be made are notorious. On the other hand, the Victorian Court of Appeal, in DPP v Maxwell, found no fault with an established pattern of leniency for sentences involving GBL and the only cases decided after DPP v Maxwell, of which the Court has been made aware, have confirmed rather than dispelled any suggestion that more lenient sentences are imposed in relation to GBL than other more commonly occurring drugs.
I do not regard the absence of evidence in this case as to the value of the imported drugs as sufficient reason to depart from the pattern of sentences referred to above, limited as it is. The respondent should be taken to have been aware of the decision in DPP v Maxwell (being a party to the decision). Had the respondent wished to urge a different course, the basis for this should have been established. As noted above, the respondent was in the best position to provide the relevant evidence. In these circumstances, it would be unfair to the applicant to depart (at least to any substantial extent) from the pattern of sentences imposed in relation to this drug.
Further, while in DPP v Maxwell there was evidence of the value of the GBL, there is no suggestion there was any evidence of the value of drugs from which GBL was distinguished such as methamphetamine, heroin, and cocaine. Inherent in the decision, therefore, is an acceptance of the validity of sentencing based on the Court's understanding of the value of (at least some) drugs. Having regard to the foregoing, I regard it as unfair to the applicant to impose a sentence based on an assumption that the commercial quantity of GBL can be equated in value with a commercial quantity of drugs such as methamphetamine, heroin, and cocaine. Indeed, the relative paucity of cases involving GBL may be a reflection of fundamental economics. That is, it may be that there are relatively few cases involving commercial quantities of GBL because potential offenders are not enticed by the potential for very large profits. This, I accept, is somewhat speculative, but nonetheless, at least, tends to confirm the lower value of GBL.
Returning to the sentence imposed in this case, that sentence is commensurate with sentences involving drugs generally regarded as being of greater value than GBL. In my view, having regard to the analysis above, the sentence is excessive to the point that error is established. None of this is to find fault with the sentencing judge who was not assisted with respect to the issue I have found to be determinative. Indeed, the provision of a table containing sentences with respect to drugs of a different type, in the circumstances of this case, was apt to actively mislead.
There has been no challenge to the other sentences imposed on the applicant. I would not, as a result, interfere with those sentences. On the same basis, I would not interfere with the date on which the sentence for the offence of attempting to possess is to commence, that being 16 February 2022. This would result in a new, total effective sentence of 8 years and 11 months with a non-parole period of 5 years and 11 months which commenced on 16 September 2020.
I propose the following orders:
1. Grant leave to appeal.
2. The sentences imposed in the District Court on 6 April 2022 for the offences of knowingly take part in the supply of methylamphetamine and possession of methylamphetamine are confirmed.
3. The sentence imposed in the District Court on 6 April 2022 for the offence of attempting to possess a commercial quantity of a border controlled drug is quashed and in lieu thereof the applicant is sentenced to imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months to date from 16 February 2022.
4. The applicant will become eligible for release to parole on 15 August 2026.