Bott v R

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)

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

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].

JUDGMENT

1. BEECH-JONES CJ at CL: I agree with Dhanji J and the orders his Honour proposes.
2. 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.
3. 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.
4. 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.
5. 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).

Factual background

1. The following summary is derived from the agreed facts on sentence and the remarks on sentence.

The federal attempt to possess offence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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".

The State supply and possession offences

1. 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.

Proceedings on sentence

1. 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.

Remarks on sentence

1. The sentencing judge delivered judgment on 6 April 2022.
2. 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.
3. 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.
4. 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.
5. 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".

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

1. 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.

The evidence relied on in relation to this ground

1. 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".
2. 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."
3. 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."

The potential relevance of a mental condition

1. 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)
2. 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].
3. 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 …"

The asserted error in the sentencing judge's reasons in relation to the applicant's mental condition

1. 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.
2. 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.
3. 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."
4. 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.

Ground 2 - The sentence imposed for the attempt to possess GBL offence is manifestly excessive

1. 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."
2. 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.

Sentencing for an offence involving GBL

1. 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.
2. 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. …"
3. 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.
4. 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)

Evidence on resentence

1. 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.
2. 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.

Resentence

1. 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.
2. 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.
3. 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.
4. 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.

Amendments 12 October 2023 - Minor amendment to headnote DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2023