(1) The objective gravity of the offence of importing a commercial quantity of a border controlled drug is 'unambiguously reflected in the maximum penalty of life imprisonment'. The offence is committed when an offender intentionally imports a substance into Australia, the substance comprising a commercial quantity of a border controlled drug and the offender intends or is reckless as to the substance being a border controlled drug.[9]

(2) The objective gravity of the applicant's offending in this case was informed by (1) the fact that he was actively involved in the steps taken to effect the importation, the applicant's email correspondence with Eric showing that the applicant was the driving force behind the importation; and (2) the quantity of GBL which the applicant imported, 'being 21.6 kg of pure GBL', which was '21 times the commercial quantity'.[10]

(3) The applicant's motivation for his offending stood 'in stark contrast to that of most drug importation cases'. As the judge put it:

Usually, the gravity of the offence is aggravated by the fact the border-controlled substance was imported as part of the illicit drug trade, motivated by the prospect of significant profits. Here, the prosecution concedes there is no evidence you intended to traffic in GHB or otherwise to on-sell the GBL. Rather, I am satisfied that your motivation to import the commercial quantity of GBL was two-fold. Firstly, that you sourced and imported the GBL as a cleaning agent for use cleaning the steel products to remedy the discolouration of concrete manufactured by [a particular company]. Secondly, as evidenced by the notes found at your premises, you intended to convert a quantity into GHB for your personal use. The fact you stood to derive little or no benefit from the importation beyond this is relevant to your sentence as it reduces your moral culpability for your conduct considerably.[11]

1. The judge rejected the explanation given by the applicant and Tran that the GBL was to be used in the manufacture of perfume for Tran, saying that she was satisfied that the laboratory equipment in the applicant's possession was for the purpose of manufacturing GHB - albeit for the applicant's personal use only.[12]
2. The judge accepted that, although the applicant's offending was not sophisticated, the applicant was 'clearly aware that the importation was not lawful, and [he] risked the prospect of significant penalties'. The judge said that it was clear from the applicant's email correspondence with Eric that the applicant had asked for the name of the product to be changed so as to avoid detection. Her Honour noted, however, that the applicant took no other steps to conceal his identity.[13] The judge assessed the applicant's offending 'as a lower-level example of an inherently serious offence'.[14]
3. Under the heading 'Personal circumstances - s 16A(2)(m)', the judge referred to the following matters:

(1) The applicant was born in Cardiff, New South Wales, in October 1975. He was 42 at the time of the offending and 48 at the time of sentencing. He reported a stable childhood, enjoying a close relationship with his parents and older brother.

(2) He completed Year 12 in Newcastle and thereafter worked with his father in concreting until 1998.[15] He completed a carpentry apprenticeship and obtained a Certificate IV in Building before moving to live in Sydney to work with a construction company, including work as a site supervisor. He moved to Melbourne in 2002, working in one position for 12 years before joining a small construction company as its general manager, where he was employed at the time of his offending. That business failed in 2021, and this was a cause of significant distress to the applicant, he having been involved in negotiations to purchase the business.[16]

(3) The applicant then gained employment with another construction company, where he suffered a hip injury following a workplace fall. In October 2023 he had hip replacement surgery, followed by another one in January 2024. The cost of that surgery placed the applicant under significant financial strain.[17]

(4) Subsequently, the applicant commenced his own business as a sole trader undertaking maintenance and servicing work. At the time of sentencing, he had been in a relationship with Tran for the past eight years. He had previously been married for one year, but has no children.[18]

(5) A psychologist, Ms Carla Lechner, examined the applicant and provided a report dated 4 June 2024. Ms Lechner expressed the opinion that the applicant had developed symptoms of depression in 2021, but considered that these had now stabilised. She also said that the applicant was prone to 'reactive depression' and would benefit from further psychological treatment.[19]

(6) The applicant had a prior criminal history, including a previous court appearance for possession and use of amphetamine in 2006; and convictions in 2021 for possession of GHB, ecstasy, a further unnamed drug of dependence and possession of substances, material or equipment for trafficking in a drug of dependence.[20]

(7) The applicant reported using ecstasy in his mid-twenties on a weekly basis and having used GHB, amphetamines, including ice, and other illicit drugs recreationally.[21]

1. The judge said that the applicant's plea of guilty was 'a highly relevant sentencing consideration'. While her Honour noted that the guilty plea was made 'at a late stage in the proceedings', she said that it 'facilitated the course of justice and saved the court and the community the time and resources associated with a trial'. She also said that the utility of the applicant's plea was 'heightened in circumstances where [he] pleaded guilty at a time where there were still delays occasioned by the impact of the pandemic on the criminal justice system'.[22]
2. Under the heading 'General deterrence and denunciation - s 16A(2)(ja)', the judge said:

With any offence involving the importation of a commercial quantity of a border-controlled substance, general deterrence and denunciation are sentencing considerations of great significance. The authorities make it clear that the rationale for this is because of the difficulty in detecting such offending and the significant harm to the community that flows from the importation of such substances into Australia.

In this case the need for general deterrence and denunciation is moderated to some extent given the concession made by the prosecution that the GBL was not imported for a trafficking purpose. Appropriately, some moderation is required having regard to the rather unusual circumstances of this case.

Nonetheless, the sentence I impose must operate to deter others from arranging to import large quantities of border-controlled substances for any reason, given the inherent seriousness of this offence.[23]

1. Under the heading 'Specific deterrence and prospects of rehabilitation, and delay (s 16A(2)(j) and (n))', the judge said:

(1) The context of the applicant's offending was relevant in the assessment of his prospects of rehabilitation and the related need for the sentence to specifically deter him from future offending.[24]

(2) The applicant was in the process of purchasing the business he was employed in during the period leading up to the offending, and this had resulted in 'a degree of financial and timing pressure that led [the applicant] to resort to the illegal importation of the GBL'. The offending was, however, 'a serious lapse in judgment'.[25]

(3) Notwithstanding the applicant's conviction for possession and use of amphetamines in 2006, he had otherwise led 'a largely pro-social, law-abiding life'. The applicant's conviction in 2021 for possessing GHB and other illicit substances was, however, a matter of concern.[26]

(4) The applicant's brother spoke highly of the applicant's work ethic, saying the applicant was deeply embarrassed, apologetic and ashamed about his offending.[27]

(5) There was a lengthy delay following the applicant's offending and the execution of the search warrant at his home, resulting in the applicant falling to be sentenced more than five years after he was first interviewed by police. The delay had undoubtedly been a source of anxiety and stress for the applicant. Ms Lechner expressed the opinion that the delay associated with the resolution of the charge had taken its toll on the applicant, both financially and psychologically. This was 'a form of punishment in itself'.[28]

(6) The applicant's overall prospects of rehabilitation were 'positive'. The need for a sentence to specifically deter him was 'correspondingly reduced'.[29]

1. Under the heading 'Comparative cases', the judge reiterated that there was no evidence that the applicant imported the GBL for a trafficking purpose or for financial reward.[30] Her Honour said that the cases to which she had been referred demonstrated that terms of imprisonment ranging from four years to six years had been imposed on offenders where a commercial quantity of GBL was imported for a profit motive.[31] Her Honour then referred to the decision of R v Colledge,[32] saying:

In that case the New South Wales Court of Criminal Appeal re-sentenced a 34-year-old offender to a $3,000 fine for importing 2,060 grams of GBL through an overseas consignment. In that case the offender incorrectly believed the drug was not illegal and had made no attempt to conceal his purchase which was for personal use. The offending was characterised as being at the very bottom of the scale of the offence. In contrast here, I note that the quantum imported, being 21.6 grams of GBL, was significantly higher and you were aware of the unlawfulness of your conduct.[33]

1. The judge noted defence counsel's submission that a community correction order was an appropriate sentencing disposition; contrasting this with the prosecution submission that the offending warranted a sentence of imprisonment with the fixing of a recognisance release order.[34]
2. Ultimately, her Honour accepted the prosecution submission, concluding her reasons for sentence in respect of the applicant[35] by saying:

Ultimately, I have concluded that a community correction order would not adequately reflect the gravity of the offending, noting the quantity of GBL imported in the knowledge it was a controlled substance. Parliament has unmistakably indicated the inherent gravity of conduct in importing a commercial quantity of a border-controlled substance, irrespective of the motivation to do so, by fixing a maximum penalty of life imprisonment.

...

... I consider a sentence involving an immediate term of imprisonment, subject to a recognisance release order, is warranted. I have formed this conclusion balancing the key role you played in importing the GBL in this quantity, aware it was wrong, whilst giving appropriate weight to the matters in mitigation of sentence, including the utility of your plea, favourable prospects of rehabilitation and the impact of the delay in these proceedings. As I stated, your motivation for engaging in this offending places your conduct in a less egregious category for this type of offending, hence the availability of a recognisance release order.[36]

1. Under proposed ground 1, the applicant made the following submissions:

(1) In saying that 'Parliament has unmistakably indicated the inherent gravity of conduct in importing a commercial quantity of a border controlled substance, irrespective of the motivation to do so, by fixing a maximum penalty of life imprisonment',[37] the judge 'erred in holding that motive was not relevant to the inherent gravity of the conduct of importing a commercial quantity of a border controlled substance'. In DPP (Cth) v Maxwell,[38] the Court of Appeal said that '[T]he 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'.[39] Similarly, in Bott v The King,[40] the New South Wales Court of Criminal Appeal said that '[A] person's motive for committing an offence has generally been regarded as relevant to objective seriousness'.[41] Differences between drugs with respect to demand, relative commercial value and prevalence of offending are also matters having a direct bearing on the issue of objective seriousness and the need for general deterrence.[42]

(2) The judge was required to weigh all relevant factors against the maximum penalty. Such an approach leads to the appropriate use of a maximum penalty as a 'yardstick'. The weighing up exercise in this case appeared to consider only two factors as relevant: the quantity of the GBL; and the fact that the importation was 'in the knowledge that it was a controlled substance'. This exercise was 'flawed in three aspects': first, the 'appropriate overall categorisation' of the applicant's offending was 'low-level', and this was not brought into the weighing up process; secondly, the consideration of the quantity and/or weight of the drug 'was against principle'; and thirdly, the finding that the applicant had imported the GBL in the knowledge that it was a controlled substance was either misleading or erroneous. In dealing with this third flaw, the applicant noted that the phrase 'controlled substance' forms no part of the charged offence; and then submitted that it was not open to the judge to find that the applicant knew that the substance was a border controlled drug.

1. Under proposed ground 2, the applicant criticised the judge's statement at Reasons [59] that the sentence her Honour was required to impose 'must operate to deter others from arranging to import large quantities of border-controlled substances for any reason, given the inherent seriousness of this offence'. Citing Fagan J's decision in Bott,[43] the applicant contended that differences between drugs with respect to demand, relative commercial value and prevalence of offending have a direct bearing upon the sentencing factor of objective seriousness and the need for general deterrence. He submitted that intermediate appellate courts have held that, due to demand and relative commercial value, the objective seriousness of an importation of GBL is lower than that of other drugs. On the issue of general deterrence, he submitted:

General deterrence is primarily concerned with deterring others from engaging in similar offending. ... [T]here is little need to deter others from importing chemicals for the combined purposes of legitimate industrial use and personal use. This is particularly so when there is no trafficking or profit motive present.

1. In making that last submission, the applicant contended that it was significant that there are no reported cases similar in nature to the applicant's case.
2. Under proposed ground 3, the applicant contended that the sentence of immediate imprisonment was manifestly excessive. In support of that contention, he submitted that, given the objective gravity of the offending and 'the constellation both subjective and objective mitigating factors favourable to the applicant', the sentence fell outside the permissible range of sentencing options available to the judge. In support of that submission, the applicant (while noting that they were not placed before the judge) relied upon the three sentencing decisions identified in Table A of Maxwell, in which sentences for importing a commercial quantity of GBL, which did not involve immediate imprisonment, were imposed.
3. Finally, in oral submissions, the applicant submitted that the judge allowed the weight of his importation to be 'the controlling factor' when she determined that a term of imprisonment was necessary. The applicant submitted that this approach was erroneous, contravening what was said by the High Court in R v Pham.[44] In making that submission, the applicant relied upon a passage in the judgment of Bell and Gageler JJ as follows:

It is well settled that the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness of an importation offence (or other drug offence). The quantity of the drug imported (or trafficked or possessed) will usually be relevant to assessment of the seriousness of the offence. In some cases it will be the most significant consideration in this regard and in other cases it may be of little moment.[45]

1. The applicant submitted that, in the circumstances of the present case, the weight of the importation was 'of little moment', and that the judge erred in concluding otherwise.

1. There is no substance in any of the applicant's complaints of specific error:

(1) First, the judge did not hold that the applicant's 'motive' for importing the GBL was not relevant to the inherent gravity of the applicant's offending. On a fair reading of the Reasons, it is plain that the applicant's reasons for importing the GBL (being to use as a cleaning agent and to manufacture some GHB for personal use) were a very significant factor in the judge imposing what would otherwise have been considered a quite modest sentence.

(2) Secondly, to the extent that the applicant submitted that the judge did not take account of the differences between GBL and other border controlled drugs, with respect to demand, relative commercial value and prevalence of offending, that submission must be rejected. The judge's references to Maxwell, Colledge and other cases dealing with commercial quantities of GBL[46] demonstrate that any such submission is not well founded.

(3) Thirdly, as a full reading of the Reasons discloses, the judge did not limit the sentencing synthesis in the way contended for by the applicant. Contrary to the applicant's submissions, it is plain that the judge took into account all of the relevant facts and circumstances (including her conclusion that the applicant's offending was 'a lower-level example of an inherently serious offence').[47]

(4) Fourthly, the judge did not err in using the phrase 'controlled substance'. Contrary to the applicant's submissions, the judge did not find that the applicant knew that what he was importing was a border controlled drug. While her Honour said that the applicant was 'clearly aware that the importation was not lawful',[48] her finding that the applicant understood that GBL was a controlled substance reflected no more than what the applicant said in his email correspondence with Victoria Police and Eric. On the evidence tendered on the plea, those findings were well-open to the judge.

(5) Fifthly, notwithstanding the applicant's reasons for importing the GBL, the judge was entitled to take into account general deterrence in the sentence to be imposed, if for no other reason than offenders who might have the same or similar reasons to those of the applicant also need to be deterred from committing the serious offence of importing a commercial quantity of a border controlled drug. Moreover, it is difficult to see how the somewhat modest sentence imposed in this case could ever deter an offender intent on importing a commercial quantity of a border controlled drug for trafficking purposes. Thus, notwithstanding what her Honour said about general deterrence, we do not see this sentence as containing an element which might deter commercial quantity drug traffickers from committing the offence for which the applicant fell to be sentenced.

(6) Sixthly, contrary to the applicant's submission that the judge sentenced the applicant on the basis that the weight of his importation was 'the controlling factor', a fair reading of the Reasons demonstrates that, in sentencing the applicant, her Honour balanced all of the matters relevant in the sentencing synthesis. The applicant's argument relied upon reading what her Honour said at Reasons [76] in isolation. They are not to be so read. Specifically, what her Honour said at Reasons [78][49] demonstrates amply why the applicant's submission on this issue cannot be accepted.

1. In any event, having looked at all of the circumstances of the offending and the offender for ourselves, we are not persuaded that there is any reasonable prospect that this Court would impose a less severe sentence than the sentence imposed by the judge. Notwithstanding the matters in mitigation relied upon by the applicant, and accepting that this was 'a lower-level example of an inherently serious offence', it seems to us that the sentence was, as we have said, somewhat modest. The applicant well-knew that what he was doing was illegal. He knew that the penalties were 'significant'. And, notwithstanding that his offending was not particularly sophisticated, he took steps to avoid detection by having the GBL relabelled. Moreover, he had a relevant criminal history for drug-related offending.
2. Section 280(1)(a) of the Criminal Procedure Act 2009 permits us to refuse an application for leave to appeal against sentence if we are of the view that there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed. As we are of that view, this provides an additional reason for refusing the applicant's application for leave to appeal.
3. Finally, and for completeness, as it is our view that this sentence was, in all the circumstances, somewhat modest, it follows that the applicant's complaint that the sentence is manifestly excessive is not reasonably arguable and must thus be rejected. Contrary to the applicant's submissions, the sentences imposed in the cases referred to in Table A of Maxwell do not show that the applicant's sentence was outside the permissible range. If anything, they show that her Honour's sentence was well-open.

1. The applicant's application for leave to appeal against sentence will be refused.

[1] DPP (Cth) v McMurray [2024] VCC 1289, [81] ('Reasons').

[3] Regulation 5, Schedule 4, item 98A.

[4] At the time of the applicant's offending, a penalty unit was $210 - meaning that the maximum fine was 7,500 x $210, being $1,575,000.

[9] Ibid [30], citing Smith v The Queen (2017) 259 CLR 291; [2017] HCA 19.

[10] Ibid [31] (although we should observe that the weight was 21.6743 kg, with purity of 96.6 per cent, making the amount approximately 20.9 times the commercial quantity threshold, rather than 21 times that threshold).

[32] [2010] NSWCCA 302 ('Colledge').

[35] The Reasons deal with both the applicant and Tran - Tran having pleaded guilty to aiding, abetting, counselling or procuring the applicant to import the GBL.

[38] (2013) 228 A Crim R 218; [2013] VSCA 50 (Maxwell P, Weinberg and Priest JJA) ('Maxwell').

[40] [2023] NSWCCA 255 (Beech-Jones CJ at CL, Fagan and Dhanji JJ) ('Bott').

[41] Ibid [61] (Dhanji J, Beech-Jones CJ at CL agreeing at [1] and Fagan J agreeing at [2]).

[43] [2023] NSWCCA 255, [7].

[44] [2015] HCA 39; (2015) 256 CLR 550 ('Pham').