32.4 The significance of general deterrence in imposing sentences for offences of this nature.
The respondent's submissions
33 According to the respondent, the sentences imposed followed a thoroughly presented case in the sentencing proceedings in which all of the relevant issues were carefully considered. According to the submission, his Honour's decision represented a sound exercise of a very broad discretion available in the determination of a sentence in criminal proceedings. The errors for which the Crown contended are said not to have been established.
34 At the forefront of the Crown's submissions appeared to be a foundational proposition that there should be no distinction whatsoever made between any of the very large number of substances which are specified in the relevant schedule establishing those substances as "border controlled drugs". According to the respondent, that submission must carry with it the positive assertion that sentences conventionally imposed for the importation of heroin, cocaine and MDMA are an authoritative guide to the magnitude of sentences that should be imposed for the offence of importation of each and every one of the substances specified in the relevant schedule. According to this submission, that assertion is plainly wrong and contrary to authoritative statements of sentencing principle.
35 The respondent submitted that the overwhelmingly dominant feature of the present case, for the purpose of assessing the objective criminality of his offences, was the fact that there was no indication of any commercial element in his conduct. That, so it was argued, brings the respondent's case starkly into contrast with conventional cases of drug importation. Although there was some evidence of supply, the accepted facts for the purpose of the sentence, which did not appear to be disputed or challenged by the Crown, were that the only supply involved was not for commercial gain.
36 The respondent's conduct in obtaining a substance that he correctly understood not to be prohibited in New South Wales, and the fact that he ordered the product from a source conducting a legitimate business using his own personal credit card to pay for it, was capable of characterising his conduct as quite different from that conventionally found in cases that are more commonly the subject of criminal prosecutions. This submission was emphasised further by the fact that the respondent conducted the importation openly and without any concealment or subterfuge with respect to his identity or his address. Such was the degree of openness and transparency in the transaction that it disclosed a level of criminality far below that found in conventional drug importation cases.
37 The respondent took issue with the Crown's reliance upon the passage cited above from the judgment of Hulme J in R v To (supra). According to the respondent, those words had to be read in the context of the passage which immediately followed them in which specific reference was made to five of the drugs referred to in the schedule, namely amphetamine, cocaine, heroin, methamphetamine and MDMA. According to this submission, they are "the drugs mentioned". His Honour was not intending to make a broad statement applicable to every substance in the schedule. His Honour's reference in par [13] to "seeing lives wrecked by addiction to drugs" must be taken to be a reference to those drugs that are specifically singled out for mention in his judgment.
38 According to the respondent, there is no necessary legislative implication that every single substance mentioned in the schedule should be regarded as falling within the same category. The respondent submitted that so much was recognised by the terms of a submission made on behalf of the Crown in the court below that "[w]hat is of significance for sentence is the maximum penalty for the offence and not necessarily the nature of the border controlled drug" (emphasis added). The respondent contended that this submission was a concession that the nature of the particular drug will be relevant in some cases.
39 Moreover, the respondent relied upon what was said by Hulme J in R v Poon (supra) at par [45] as follows:
"[45] Nothing I have said is intended to suggest that the harmfulness of particular drugs as known to the courts through evidence or matters of which the Court may take judicial notice is not a relevant consideration just as, for example, an alteration in the frequency of offences of a particular type is. In that connection, statements as to where in the spectrum of illegal drugs, a particular drug falls, based no doubt on substantial judicial experience as to the impact of drugs falling within one category or another, have the potential to assist the sentencing process. Any departure from accepted wisdom in this regard may well be an indication of error and inspire a careful look at any sentence which follows."
40 The respondent submitted that what the learned sentencing judge did conformed to the type of approach indicated in the passage from the judgment of Hulme J last quoted. Accordingly, in taking into account matters of prevalence and frequency, as well as seeking to rely upon information that may have established where this particular drug lay within the spectrum of illegal drugs, his Honour was applying accepted principle.
41 The respondent further submitted that the judgment of this Court in R v Neale (supra) provides specific assistance in dealing with the now thoroughly litigated question of whether offences involving MDMA are to be regarded as more or less serious than offences involving heroin or cocaine. The resolution of that conflict has nothing to say about whether other substances mentioned in the section may be distinguished from the more frequently encountered substances in drug importation cases.
42 Further assistance is said to be derived from the judgment of Ipp JA in R v Poon at par [19] when His Honour said:
"[19] Where the maximum penalty for an offence involving one drug is the same as that for an offence involving another, it may be said in a very general sense that there is an equivalence between the two offences. But that will not be a particularly helpful observation as the quantities of the drugs involved will almost certainly differ, and the criminality to be attributed to the conduct involving a particular quantity of one drug will almost certainly differ from that involving a like quantity of the other drug. Accordingly, it will usually be futile to compare sentences imposed for one offence with another."
43 The respondent submitted that in the present case the learned sentencing judge explored issues intended to ascertain "judicial experience" and "accepted wisdom" on the characteristics of GBL. His Honour discovered that it was not illegal to possess the substance in New South Wales and it was apparently freely and openly marketed in both Canada and England. It was ultimately open to his Honour to incorporate this information in his decision making process. He referred to the task of assessing the "moral culpability" of the respondent by reference to a number of features of his conduct and concluded, "his moral culpability was very low". The respondent submitted that it could not be shown that the sentences imposed as a result of this exercise were in error.
Consideration
44 In my opinion, the sentences imposed by his Honour were infected with error. It is possible to identify a clear error of principle which has led to the imposition of a "sentence that is definitely outside the appropriate range of the case in hand": Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, at pars [61] and [62], and Wong & Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at par [109]. The starting point of that opinion is the statute itself.
45 Section 314.4 identifies no less than 155 border controlled drugs and quantities. The only apparent common denominator between or among the substances listed in the section would appear to be the fact of that listing. So, for example, even though there is a clear and obvious connection between cannabis and cannabis resin, there is no such connection between either of those substances and cocaine or methadone. Similarly there is no obvious connection between morphine and mescaline. The substances are only connected by the common thread of legislative proscription.
46 Nor are any of the substances graded or ranked in comparison to any other or others, in terms of their known or perceived harmful effects, unit strength, addictive qualities, marketability, cost, price, availability, scarcity or any other apparently relevant characteristics. The only form of differentiation between or among substances appearing in the schedule is to be found in the marketable and commercial quantities allocated to them. As soon as a particular substance reaches a particular marketable or commercial quantity, it is to be treated, for the purposes of the Criminal Code, as being identical to every other substance in the schedule of a marketable or commercial quantity respectively. Importation of a commercial quantity of Dipipanone (2kg) exposes the importer to the same potential penalties of life imprisonment or a fine of $825,000 or both as the importer of .005kg of 3-Methylthiofentanyl.
47 Unfortunately, neither the Criminal Code in general nor s 314.4 in particular gives any insight into the process by which or pursuant to which it was determined how or why the listed substances should variously be criminalised, depending upon the quantity concerned. In terms of a sentencing exercise, however, this would appear to have at least one important consequence. Except by reference to quantity, there would appear to be no scope for judicial or forensic enquiry about the individual characteristics of any of the listed substances. For example, even with the benefit of the most highly respected expert opinion that listed substance "A" is socially, pharmacologically, or in every other relevant way wholly benign or alternatively exceedingly dangerous, there does not appear to be a legitimate avenue for the use of that information to inform the sentencing discretion or to substantiate a submission. In terms of a House v The King analysis, it seems to me that such opinion would be extraneous or irrelevant and immaterial. Regardless of what view one might have about it as a matter of policy, there would appear clearly to be a legislative foreclosure upon the ability of this Court to differentiate between the listed substances other than by reference to the quantities involved. The learned sentencing judge clearly fell into error on this analysis to the extent that he explored issues intended to ascertain "judicial experience" and "accepted wisdom" on the characteristics of GBL.
48 It is also wrong to utilise the words quoted from par [45] of the judgment of Hulme J in R v Poon to which the respondent draws this Court's attention in support of his argument to the contrary. This appears clearly from the balance of the paragraph as well as from the decision of the Court as a whole. However, most significantly, his Honour's words at par [43] would appear to put his view of the matter beyond doubt. His Honour said:
"[43] While the situation may well be different if the statutory provisions took a different form, given the particularity of quantities which place a drug in one or other of categories for which different penalties are provided, it seems to me that the seriousness of an offence relating to a particular drug is to be judged primarily by the statutory provisions relating to it rather than by some impression, whether or not based on evidence in the particular or other cases, of how deleterious that drug is in comparison with others. Thus the seriousness of an offence relating to MDMA should be determined by reference to the statutory provisions relating to it, rather than by some comparison with heroin or cocaine."
49 I am also of the view that, even in the absence of identifiable error, the sentences imposed upon the respondent were manifestly inadequate. In forming that view I have had regard to the very strong subjective case put forward on the respondent's behalf and I endorse the learned sentencing judge's characterisation and weighting of all factors favourable to him. However, his Honour's assessment of the respondent included the following important passages from his remarks on sentence:
"Having regard to my acceptance that [the respondent] is genuinely remorseful over his conduct, the role of personal deterrence is less than it would be if there were no such expression. But of course the sentence must still demonstrate to [the respondent] that he must not engage in such future conduct and it must also demonstrate to those in the community that, alerted to the possibility that their conduct could attract criminal sanctions, they must ensure that they do not breach the law, to do so will bring punishment.