R (Commonwealth) v Hamilton

Agreed Facts

1. There are agreed facts before the Court. In October 2020 the offender, using an international website, purchased an item called "Multi Gel Remover." He gave evidence, which I accept, that he found that website by a simple Google search. The consignment arrived in Australia in November 2020. It was sent to his address. The consignment note included his telephone number and email address. The price paid was 297 Euros, approximately $500 Australian. The consignment was intercepted, examined by Border Force officers. It contained 5 litres of a liquid that was tested and returned a positive result to GBL, with a purity of 94%. Though in liquid form the quantity of pure GBL was noted as 5,378 grams.
2. On 18 November 2020 a search warrant was executed at the offender's residence. Police seized two Multi Gel Remover containers, each of 1 litre, a black folder containing invoices for Multi Gel Remover and the offender's phone. Those 2 litres in bottles were subsequently analysed and found to contain GBL. They and they are the matter on the 16BA schedule.
3. A Cellebrite extraction of the offender's phone revealed that on 5 August 2020 he made enquiries of another man about the purchase of something called "awesome G," for which he was quoted a price of "$5 per m." It is accepted that is $5 per millilitre. There is no evidence the transaction took place, but it does indicate as the offender has accepted that: (a) he was prepared to purchase and use GBL, and (b) he was aware that the drug was an illicit drug that could be used for recreational purposes.
4. He subsequently gave evidence today that he had on occasions used GBL recreationally, and that he had at least on one occasion used Multi Gel Remover for recreational purposes other than those the subject of any charge before the Court. He is not to be punished for that admission.
5. He was interviewed by police. He provided them with information about how he came to purchase the Multi Gel Remover and why he said he had that substance. He denied having ever sold it to anyone. He said that the Multi Gel Remover was needed for a furniture restoration business he was conducting.
6. The agreed facts indicate Hamilton pleaded guilty on the basis that he was aware of the substantial risk the Multi Gel Remover contained the prohibited drug GBL.

The offender's version

1. In his evidence today, without in any way traversing those facts, he provided documentation about his furniture restoration activities. He said that he had used a Bunnings product as a painter remover, which was not particularly satisfactory. He had then searched Google to find a better product. And he purchased the one that came up. He said he was aware that some international products contained GBL, but that nothing on the website indicated to him that the product purchased did contain GBL. He purchased it and used it for paint removal. He also was aware however, of its other uses and did on one occasion, at least, use the product recreationally.
2. In exhibit 4, tendered on his behalf, are emails in relation to the transaction the subject of the charge. He was taken to those emails by Mr Brown for the Commonwealth Director of Public Prosecutions. In particular to the passage underneath the signature of the CEO of the company. That company is "GBL Europe BV, Multi Gel Remover BV, Persolvo Real Estate BV." He said that the initials GBL did not stand out to him at the time and he was not aware of them until Mr Brown pointed them out.
3. He did however in-chief, and after questioning by me, and reinforced by Mr Brown, accept that by the time he had sent the order for the 5 litres of gel remover the subject of the charge, he was aware that that substance contained the drug GBL. It appears that he was either naïve or ignorant about his legal obligations.
4. I accept that he was certainly ignorant as to the potential consequences of such an importation. I accept that when he was spoken to and arrested by police on 18 November 2020 and they told him that he faced a potential sentence of life imprisonment that he felt "sick to the stomach and his life flashed in front of him." I also accept that since that information was imparted to him, he has been entirely understandably depressed and anxious to an extent that he is now in taking medication and has had to cut back his studies and work.
5. The elements of a 307.8(1) offence require the Court look at these simple facts: that a border controlled drug was imported, that it was gamma butyrolactone and the quantity imported was a commercial quantity. A commercial quantity is 1 litre -1 kilo in weight, which I presume I can approximate is roughly equivalent to 1 litre. Here the figures given were 5.3 kilos.
6. Those objective facts need to be considered in context. It is accepted that while weight is always an important factor, as weight determines the penalty range, weight is not determinative. In many cases, particularly those involving what is now often described as a low reward "drug", greater emphasis should be placed on the purpose for which the drug was imported, and in particular any financial reward received or anticipated. It is often that reward that leads to harm to the community; as the illicit trade in drugs is one of the principal sources for crime in the community: Petkos v R [2020] NSWCCA 55: DPP v Maxwell [2013] VSCA 50. That important factor in assessing objective seriousness was referred to by Justice Johnson in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72(f)].
7. Having heard from the offender I could not make a finding beyond reasonable doubt that this importation was for profit, nor could I find beyond reasonable doubt that he intended to supply the product to anyone.
8. He was frank in his evidence. Although he contradicted some of the things he said initially in his record of interview, I accept that he was trying, given the stresses and strains of giving evidence, to be as frank and honest as he could. He accepted that he had used GBL, and he went beyond the concessions he made set out in the agreed facts and accepted he knew the substance he imported contained GBL.
9. He told me that while he had tried a previous gel remover recreationally, he did not intend to use the border controlled drug for that purpose, and he explained the purpose he imported such a large quantity.
10. I am entitled to be a little sceptical in such cases. As Mr Brown pointed out, it is a lot of money to pay for a product you could get at Bunnings much cheaper; no matter how superior it might be for the purpose intended. Hamilton also seemed, in his own mind, to distinguish the 2 litres in possession which he said were for his furniture restoration business from the 5 litres which he had calculated he needed to strip the paint from and improve his rental property. At the same time, he appeared to be a man who does have a fairly rigid way of viewing the world. If it had not been for Hamilton's demonstrated naivety in using his own address and phone number I may have had difficulty in believing them. That there was no dissembling when he imported this substance was what that tipped me in his favour when I came to my factual findings.
11. While I am sceptical, I could not and will not dismiss what he said. I am prepared to accept that, on balance, the great and predominant purpose of the importation was for a relatively benign purpose. That is, its stated use as a paint remover. But, given that he had admitted using GBL recreationally before, and had used this product previously recreationally, I could not find it was the sole use. The most I could find was he may have dipped into the product for recreational use. In many ways that mitigates this offence by comparison with many others, where drug users import commercial quantities of the drug for their own use and or for distribution, sometimes sale, to others.
12. On the other hand, the quantity of drugs imported meant that there was a risk that the drug could have in some way got into the community or been used recreationally, which I understand to be being the principal reason why GBL is listed as a border controlled drug.
13. While this is of a low order when compared to other commercial importations, I cannot and do not ignore the fact that GBL is: (a) a border controlled drug, and (b) for a quantity over the commercial quantity Parliament has said the maximum penalty is life imprisonment. That maximum penalty is one of many guiding principles I must apply.

Subjective Case

1. Mr Hamilton was born in 1982. He cooperated with Community Corrections and I have the benefit of a Sentencing Assessment Report. He also provided the Court with a substantial number of personal references, from a variety of people in the local community: family, friends, people he has studied with and under, people he has worked with, employers. Universally they describe him as a reliable, hardworking and responsible man. The words "decent" and "trustworthy" occur regularly. They each note their surprise and shock that he is in the position he is in today. They speak of how; he has worked multiple jobs, how he is respected in his current occupation, and how he has studied with intentions to improve himself. Those involved at the university he attends, although he has temporarily suspended his studies, speak of him as a conscientious student. The references speak of a man who throughout his life has been involved actively in the community both in sport and as a volunteer at a local service club.
2. He is new father. This offence and the consequences of it have strained his relationship. But he is still supportive of his partner, who also has a young child from another relationship. He is providing paternal support to his young baby. He, because of his working hours, is able to spend considerable time with the children allowing his partner to work.
3. The medical reports speak of; his anxiety and depression and the struggles he has had with those conditions, the consequences of his arrest and the realisation he could be going to gaol. He spent a couple of days in gaol, I am sure that taught him a salutary lesson.
4. As I said earlier, he comes across as a naïve and gullible man, but someone who also failed to pay any appreciation to the seriousness of the offence that he was involving himself in.
5. I note that Hamilton is not unblameworthy, he has a criminal record, but not for anything as substantial as this.

Submissions

1. Mr Galloway on his behalf took me to a number of relevant decisions of this Court and the Court of Criminal Appeal: including R v Corbett [2008] NSWCCA 42 and R v Davidson [2009] NSWCCA 150. He submitted that while consistency in sentencing is important, there were examples of sentencing for matters such as this where non-full time custodial sentences were imposed or where the full-time sentences imposed were relatively lenient. It was submitted that considering all the circumstances a sentence other than imprisonment could be imposed, particularly when I had regard to the sort of man who was being sentenced today, it being unlikely he will ever reoffend again
2. Mr Brown took me through matters specific to the present case and in particular those enumerated and set out in s 16A Crimes Act 1914. As is clear the offender was the sole person involved in the importation and the sole beneficiary of the importation. He took me to authorities to which I have briefly referred about the nature of the drug and highlighted the purchase price which by comparison with ordinary paint removers must have generated a degree of suspicion, because it is so relatively high. I think I can take judicial notice of the price of paint remover at Bunnings. I cannot however take judicial notice of any evidence about whether this is or is not a more superior product other than the evidence given today.
3. He noted it is admitted the matter for sentence is part of a course of conduct. He addressed on the question of whether this offending was founded on and recklessness and/or actual knowledge. I do not need to discriminate between one or the other bit generally, recklessness is treated less seriously than an importation with actual knowledge. Here frankly the offender, against interest has admitted actual knowledge of the nature of the drug being imported.
4. Mr Brown accepted that the plea had utilitarian value and that in addition to that the offender has shown cooperation with law enforcement and the course of justice.
5. The Director's ultimate submission in all the circumstances full time imprisonment is the only appropriate penalty. While appropriate concessions were made, that remains their position.

Synthesis

1. A judge must synthesise all relevant factors. I can and will take into account the guidance offered by the decisions of appellate courts. Those decisions must be given proper weight. I also have regard to the decisions imposed by my colleagues on this Court. But every offender and every fact, situation has its individual features, and they must be considered.
2. The principal reason advanced for a sentence of full time imprisonment is to extract appropriate retribution for what on any view a very serious crime. Retribution is required, not in the sense of punishment, for punishments sake rather as lawyers understand it; punishment designed let this to this offender, and more importantly others in the community, know and hopefully understand as this offender clearly did not, that to import any prohibited drug, let alone in the quantities here, is a particularly serious offence. It must be understood that and in many, many cases, given the maximum penalty fixed by Parliament res a full time custodial sentence, sometimes of some length is often required.
3. Judges sometimes ponder on the utility such statements have, given that Parliament has already made it very clear to the public how severe the maximum penalty for those who import border controlled drugs of this quantity is. But still, people, such as this offender, naively assume that if something is available on the internet or has some other purpose that they can import it without consequence. The community must understand that to do so puts them at risk and puts the community at risk.
4. Here when I consider the many other manifold purposes of sentencing there is much to be said for not requiring this offender to go to gaol, with consequent disruption that will obviously flow to his family, to his work, to his and his family's capacity for living in the community. Given the support he provides them, the consequences for his family of him going to gaol will be particularly severe. In an appropriate case notwithstanding family hardship gaol is entirely justified. This requires give the question of full-time custody anxious consideration.
5. Although no oral submissions were made on the prospect of rehabilitation, I find that it is unlikely that this offender will ever offend in a like manner again.
6. In my view that so serious was the offending that having regard to the principles that I have set out that a custodial sentence is required. That sentence however can be moderated by directing that he be released immediately on conditional release pursuant to s20(1)(b) Crimes Act 1914 or subject to an Intensive Correction Order.
7. The only condition suggested by Community Corrections is that he obey and take their guidance and supervision for the two years maximum as I understand it. I could also order he do up to 200 hours of community service. There is an additional necessary condition that he does not leave the State without permission of Community Corrections.
8. After further discussion about possible orders and conditions I determined that as all the preconditions for an Intensive Correction order are met that would be the most appropriate disposition as a Commonwealth release order would not allow for Community Service and orders.

Orders

1. There be a sentence of two years imprisonment. It is a fixed Commonwealth term. That term can be served by intensive correction in the community. The conditions of the order include; 1. That you be of good behaviour, that is the most important condition. 2. that you obey all directions of Community Corrections, that you accept their supervision for as long as they deem necessary, 3. that you report to the Wollongong Office within seven days, that is Monday. You can telephone to make the appointment. 4. That you complete 200 hours of community service.
2. If you breach an order you will be dealt with by Community Corrections. They can, if it is a serious breach put you in custody for a period up to the balance of any sentence that is outstanding.
3. I do not think there are any other orders required. You will have to enter that order in the court office before you leave today.
4. You raised your eyes to the heaven, Mr Hamilton, you were right to do so. You and the community have to understand that just because something is available on the internet, just because there are promises made on the internet, does not mean that they are true. If it is too good to be true, it probably isn't.

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: 10 February 2023