R v Andrew Charles CORBETT [2008] NSWCCA 42

Reported Decision: 181 A Crim R 522

New South Wales Court of Criminal Appeal

CITATION: R v Andrew Charles CORBETT [2008] NSWCCA 42

HEARING DATE(S): 28 September 2007

JUDGMENT DATE: 4 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Harrison J at 11

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Crown appeal - sentence imposed upon respondent in relation to two charges of attempting to import a border controlled drug, namely gammabutyrolactone, being a commercial quantity, contrary to ss 11.1(1) and 307.1 in Part 9.1 of the Criminal Code Act 1995 - maximum penalty of life imprisonment and/or a fine of $825,000 - plea of guilty - sentence on first count to 150 hours of community service and on second count to 360 hours of community service to be served concurrently – statutory regime distinguishing between drugs in prescribing the threshold trafficable and commercial quantities, but otherwise without distinction as to applicable maximum penalties - trial judge erred - no scope for judicial or forensic enquiry about individual characteristics of any of the listed substances except by reference to quantity - seriousness of an offence relating to a border controlled drug should be determined by reference to statutory provisions relating to it, rather than by some comparison with other border controlled drugs - sentences inadequate - harsh and unfair to subject respondent to more severe penalty even in circumstances where error is demonstrated - exercise of Court's residual discretion not to interfere

Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Code Act 1995 Customs Act 1901 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005