Petkos v R

Court of Criminal Appeal (NSW)|2020-03-23|Before: Hulme J, Hamill J, Wilson J

Judgment

R A HULME J: I agree with Hamill J.
HAMILL J: Jim Petkos seeks leave to appeal against a sentence imposed on him by his Honour Judge Colefax SC in the District Court on 17 June 2019. Mr Petkos pleaded guilty in the Local Court to two drug offences and asked that two further offences on a Form 1 be taken into account in sentencing him. The first offence was supplying a large commercial quantity of a prohibited drug (5.624 kilograms of gamma-butyrolactone, a drug known as "GBL"). The two offences taken into account in sentencing for that charge were possession of a prohibited weapon (a Taser disguised as a torch) and possession of a precursor for the manufacture of a prohibited drug (5 litres of hypophosphorous acid, used in the manufacture of methylamphetamine). The second offence for which Mr Petkos was sentenced was an attempt to supply a prohibited drug (584.3 grams of GBL). The first offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The second carries a maximum penalty of 15 years imprisonment.
Colefax SC DCJ imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years.
His Honour applied a 25% discount to the indicative sentences to reflect the applicant's early guilty plea. He indicated that those putative sentences, after the discount, were 6 years and 4 months with a non-parole period of 4 years and 1 month for the first offence, and 4 years and 6 months for the second offence.

The facts of the offences

The facts were set out in an agreed facts sheet. They were uncomplicated and can be summarised briefly. In March 2018, police commenced an investigation into the applicant's activities. Communications on his telephone were monitored. In the course of what was described as "drug supply chatter", the applicant was detected importing GBL from a supplier in China. On 27 March 2018 the applicant received a package from China described as "silicone oil" but which was presumptively tested and found to be hypophosphorus acid. Over the next month or so there were communications suggesting the importation or distribution of a substance or chemical described as "G" and "Gamma-Butyrolactone, analytical standard Cas number 96-48-0, purity: 99.09". The applicant said at one stage "I want $1,250 for it" referring to "one litre g". In later conversations he said "No g yet. Customs clearance only waiting for delivery". On 23 April 2018 he told an associate "I have four litres of g unopened." On 24 April 2018 there were transfers of $800 USD from his bank account to a chemical company in China. He told the associate that "…his G is uncut, and is coming in at 99.09% purity".
On 3 May 2018 a shipment arrived which contained 584.3 grams of GBL with a purity of 98.7%. This consignment was the subject of the second charge - the attempt to supply an indictable quantity of a prohibited drug. An indictable quantity of GBL is defined as being 50 grams and a commercial quantity as 1 kilogram.
On 7 May 2018 a consignment arrived containing the drugs subject to the first offence (5.624 kilograms of GBL with a purity of 98.5%) as well as the precursor, subject of the possession offence to be taken into account on the Form 1 (5 litres of hypophosphorous acid). A large commercial quantity of GBL is defined as 4 kilograms.
The police conducted a controlled operation and the parcel was delivered to the applicant's address. By that stage, the applicant was suspicious that he was under surveillance. He told one friend or associate "my goods and cleaning products are with Australian border force. Apparently its being tested for something" and "Fuckwits think they have Al Capone here or something". When the controlled delivery took place, the applicant moved the box in which the chemicals were delivered behind a screen in his driveway. He then drove away from his property and was arrested a short time later.
When police searched Mr Petkos' home they found the Taser that was the subject of the weapons charge on the Form 1.
The agreed facts indicated that Mr Petkos did not tell the truth about his involvement in the offences when he was interviewed by police.
In view of the submissions made under ground 1, it is worth noting that counsel for the applicant at trial calculated that the total proceeds of the proposed sale of the large commercial quantity of GBL "would have been approximately $7200", assuming it was sold at the price mentioned in the telephone communications, that is $1,250 per litre. Counsel estimated the attempt charge would have "involved a sale with a value in the order of $600."

The applicant's personal circumstances

The applicant was born in 1969 and had no relevant criminal record. His only offences in New South Wales were an assault in 1990 for which no conviction was recorded, a couple of serious traffic offences in 1990 and 1991, and a common assault in 2013 for which he received a fine. He had also committed two minor traffic offences in the Australian Capital Territory. He had never been to prison before.
The applicant tendered a report of Dr Olav Nielssen, psychiatrist. This set out Mr Petkos' personal history. I note that the sentencing Judge treated some of the applicant's statements to Dr Nielssen, including his expressions of remorse, with scepticism: see R v Petkos (No. 2) [2019] NSWDC 330 at [28]. The applicant grew up in Sydney's inner west and went to school in that area. He worked in a supermarket from the age of 14. After school he worked as a fitter at a glass manufacturing plant and later worked in various manufacturing plants and as a subcontractor installing machinery. He was married for 16 years and had two daughters, aged 17 and 15. After his marriage broke down, he remained in regular contact with his children. He had a girlfriend who visited him in gaol during his period of remand.
Mr Petkos told Dr Nielssen that he had become very alienated after separating from his wife some years before the offence. There was no dispute that the applicant had a long standing depressive illness for which he had taken medication for a number of years. The sentencing Judge took this into account although his Honour found no causal link between the condition and the offending: R v Petkos (No. 2) at [33]. The sentencing Judge found that his time in custody would be harder as a result of his depression.
Mr Petkos did not use illegal drugs and rarely drank alcohol. He did not have a gambling problem.
As to the offence, the applicant told Dr Nielssen that he was influenced by a guy with whom he associated more than he should have. He had "an inkling of what they were in to." He saw on the internet that GBL was "openly sold as a chemical cleaner" and "when I saw it I thought I can buy it and make a bit of money on it."
Mr Petkos wrote a letter to the sentencing Judge in which he apologised. He said he had used his time on remand "to reflect on my actions", that he was now "able to see the extent of my offending" and that overall gaol had "been beneficial for me". He had been attending chapel and completed drug awareness and rehabilitation courses. He continued to suffer from extreme depression and anxiety and remained medicated. He said the fear that gaol instilled in him meant that he would never offend again. He looked forward to being released and spending time with his children.
The sentencing Judge found that Mr Petkos had reasonable prospects of rehabilitation. However, he rejected the applicant's expressions of remorse because of the justifications provided to Dr Nielssen and the author of a Sentencing Assessment Report.

Ground 1: Objective seriousness

The Prosecutor submitted in the District Court that the first offence was "towards the upper-end of the low-range of objective seriousness" for offences of its kind, noting the incident was not isolated and that the applicant "was the principal of his own operation" even though he was not involved in an organised supply syndicate. He noted the purity of the drug and the fact that the applicant was aware of its purity. The Prosecutor submitted the second offence fell "slightly below the mid-level of seriousness" noting the quantity was more than 10 times the indictable quantity and more than half of the commercial quantity. Counsel for the applicant submitted the first offence "fell towards the bottom of the range of objective seriousness" and relied on the "comparatively miniscule financial reward". The second offence was said to be "well below the mid-range of objective seriousness".
Counsel at first instance relied on the Victorian case of Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218 at [33], where the Court noted "the enormous reward differential" between GBL and some other drugs. The Court described GBL as a "low-reward drug" and emphasised that a "drug offender's culpability [is] materially reduced in a case such as this, where the likely financial reward is relatively small".
The sentencing Judge found that the first offence was "equidistant between the middle and the bottom of the range for an offence of its kind". He found the second offence to be "slightly below the mid-range."
The applicant submits that the sentencing Judge made one specific error in his assessment of the objective gravity of the offence and that this error led his Honour into error in his categorisation of the offences in terms of their relative objective seriousness. The asserted error was his Honour's failure to take into account "the enormous reward differential" in accordance with "the principles enunciated in DPP (Cth) v Maxwell." It was noted that although his Honour was taken to the decision, "Maxwell was not cited in the [remarks on sentence], nor were the principles enunciated in Maxwell referred to in the [remarks on sentence]." It was acknowledged that the sentencing Judge found that the applicant's reward was to be modest but submitted there was "no connexion" between this finding and an assessment of the objective seriousness of the offence.
Mr Lloyd QC helpfully analysed the decision in Maxwell, noting that the prosecution's application for special leave to appeal was refused: The Director of Public Prosecutions v Maxwell [2013] HCATrans 178 (16 August 2013). It was submitted that there was no inconsistency between Maxwell and the decision in Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15 where the High Court rejected the suggestion that sentencing courts could properly apply a "judicially constructed harm-based gradation of penalties" in the context of a statutory scheme where Parliament had determined the maximum penalties applicable to various drugs based on quantities. The High Court held in Adams at [10] that "Parliament has made its own judgment as to an appropriate response to involvement in the trade in illicit drugs".
Maxwell was a case involving a charge under the Commonwealth Criminal Code. However, it has been applied in sentencing proceedings under Victorian drug legislation: see Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311 and Ellis v The Queen [2018] VSCA 221. The applicant submitted that it has equal application to the Drug Misuse and Trafficking Act 1985 (NSW). It is not necessary to determine that question here but it is worth noting that it was decided under different legislation in another state and was not strictly binding on the sentencing Judge. It was not incumbent on the sentencing Judge to make specific reference to the case in the course of an extemporaneous sentencing judgment delivered immediately after the conclusion of the evidence and submissions.
One potential difficulty in the application of the "principle" referred to is similar to the issue raised by the High Court in terms of the relative harmfulness of drugs, namely "the difficulty of establishing a suitable factual foundation for such an approach": Adams v The Queen at [10]. Another is that there are a vast number of substances set out in Schedule 1 to the Drug Misuse and Trafficking Act and many Judges will not be in a position to know, in the absence of evidence, which are "high reward" drugs and which are "low reward" drugs. In some cases, as submitted by Queen's Counsel, it will be known. He cited an example of the notoriously large rewards that can be derived from trafficking in cocaine and heroin. Leaving those issues aside, I accept 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 Maxwell.
However, at the heart of the decision in Maxwell was the following uncontroversial proposition: "21 In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring - or is expected to bring - a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender's moral culpability."
The Court went on to cite Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64]: "In general, ... 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." [Emphasis added by the Court in Maxwell.]
In the present case, the sentencing Judge did take into account the financial reward "the offender hoped to receive". His Honour referred to the "modest" profit on three occasions: see R v Petkos (No. 2) at [15], [20], [27]. In dealing with the first offence, his Honour said "In this operation, you stood to make only a modest profit". In dealing with the second offence, he said "you also stood to make only a modest profit". The matter was referred to for a third time when his Honour described the applicant's motive as "a mystery to me … considering the risk that you placed yourself in, compared with the modest amount of money you stood to make".
I am unable to accept the submission that the sentencing Judge failed to connect these findings to his assessment of the objective gravity of the offences. To the contrary, the determination of the objective gravity came immediately after reference to the modest profit and other matters directly relevant to such an assessment.
In relation to the second offence, his Honour said: "15. In this operation, you stood to make only a modest profit. But you were not at the low end of the chain of activity. You were not a small time street dealer. You were not some intermediary. You were the principal. 16. In terms of its objective seriousness for an offence of this kind, I find it to be slightly below the mid-range."
In relation to the first offence, the relevant remarks were even more immediately connected with an assessment of the objective seriousness of the offence: "19. Again, you were the principal in the importation of this drug. 20. You also stood to make only a modest profit in relation to this operation. 21. In terms of its objective seriousness, I find it to be equidistant between the middle and the bottom of the range for an offence of its kind."
No other error was submitted in relation to the approach to an assessment of the objective seriousness of the offence. The conclusions reached by the sentencing Judge were open to his Honour. The Court is generally reluctant to interfere with a sentencing Court's evaluative judgment concerning the objective seriousness of an offence: see, for example, Mulato v R [2006] NSWCCA 282 at [46] (Simpson J, as her Honour then was).
I would reject Ground 1.

Ground 2: The aggregate sentence imposed is manifestly excessive

To succeed on this ground, the applicant must establish that the aggregate sentence was plainly wrong or unjust. There is no single correct sentence and Judges are allowed significant flexibility in sentencing subject to the requirement that there be consistency between sentences imposed in similar cases, and in the application of principle. It is not sufficient that the appeal Court may have exercised the sentencing discretion differently. These well-established principles were acknowledged by the applicant.
It was submitted that the indicative sentences were "suggestive of error". The applicant accepts that the indicative sentences are not amenable to an appeal, but correctly submitted that error in the indicative sentences might be a guide as to whether there is error in the aggregate sentence: see JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40].
The indicative sentence relating to the first offence also required the Judge to take into account the offences on the Form 1. The precursor offence was serious. Considering the maximum penalty of life imprisonment for the first offence and the standard non-parole period of 15 years, I am unable to accept that an indicative sentence of 6 years and 4 months with a non-parole period of 4 years and 1 month is suggestive of error.
In light of all of the circumstances, including the very small profit involved, the indicative sentence for the second offence - 4 years and 6 months - was very high. There was no sophistication in the importation and supply and the applicant was not involved in an organised drug syndicate. However, the degree of concurrency implicit in the aggregate sentence meant that the extra punishment for this offence was 1 year and 8 months in terms of the total sentence of 8 years. Again, this is not suggestive of error.
Queen's Counsel acknowledged there was little by way of guidance from other cases involving GBL. Reference was made to Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150. In that case, the offender was convicted after trial of 3 counts of importing a much larger quantity of GBL (about 30 kilograms with an attempt to obtain a further 19 kilograms). It was a similar case in that the drugs were simply purchased from China over the internet. Mr Davidson was sentenced to 8 years imprisonment with a non-parole period of about 4 years and 6 months. A comparison with a single case is not helpful and Queen's Counsel did not suggest otherwise. When Mr Davidson was sentenced, GBL was "not a drug recognised in or proscribed by NSW drug law": Davidson at [96]. There was no standard non-parole period applicable to the offences. While the applicant here says there was "nothing unusual or attractive" about Mr Davidson's subjective case, he was a 24 year old man with no prior convictions of any kind and there was strong evidence of his good character.
With appropriate circumspection, I have surveyed the Judicial Commission of NSW statistics in relation to sentences, fixed terms and non-parole periods imposed for large commercial supply of the drug "GHB". There appear to be no statistics in relation to GBL. The statistics relating to GHB were tendered at the sentencing hearing and it seems to be accepted that the two drugs are of a similar kind. According to Queen's Counsel, one (GBL) may be a precursor of the other (GHB) although there is no evidence of this. There are only 12 cases on the database so my survey is of limited utility. In any event, the survey does not suggest the sentence imposed in this case was plainly wrong or unjust.
I would reject the second ground of appeal.

Orders

I would grant leave to appeal because the sentence is a severe one in all of the circumstances, and the issue concerning the application of Maxwell to sentencing cases in New South Wales involving GBL is important. However, I would dismiss the appeal for the reasons set out above.
The orders I propose are: 1. Application for leave to appeal against sentence granted. 2. Appeal dismissed.
WILSON J: I agree with Hamill J.

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