New South Wales Court of Criminal Appeal CITATION: R v COLLEDGE [2010] NSWCCA 302 HEARING DATE(S): 4 August 2010 JUDGMENT DATE: 10 December 2010 JUDGMENT OF: Macfarlan JA at 1; Hulme J at 2; McCallum J at 29 (i) Appeal allowed; DECISION: (ii) Quash the sentence imposed by Hosking DCJ on 20 April 2010; (iii) Order that the Respondent pay a fine of $3,000; and (iv) Allow the Respondent 3 months to pay. PARTIES: Regina Paul COLLEDGE FILE NUMBER(S): CCA 2009/278535 COUNSEL: Applicant: Mr W Roser QC Respondent: Ms S Walsh SOLICITORS: Applicant: Commonwealth DPP Respondent: Viney Williams Lawyers LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Hosking DCJ - 10 - IN THE COURT OF CRIMINAL APPEAL 2009/278535 MACFARLAN JA RS HULME J McCALLUM J Friday, 10 December 2010 REGINA v PAUL COLLEDGE Judgment 1 MACFARLAN JA: I agree with RS Hulme J. 2 RS HULME J: This is a Crown appeal against a sentence imposed by Hosking DCJ on the Respondent in respect of a charge that the Respondent imported a commercial quantity of a border controlled drug, viz gamma-butyrolactone, commonly and hereafter referred to as "GBL". The quantity involved was 2060 grams, the minimum commercial quantity being 1 kilogram. The Respondent pleaded guilty to the offence at the first reasonable opportunity. The sentence imposed was a fine of $500. 3 The statutory provision against which the Respondent offended was s 307.1 of the Criminal Code Act 1995 (Cth). That provision and an ancillary one necessary to appreciate its operation are as follows:- 307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for life or 7,500 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c). 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) … (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. 4 The Respondent's plea to the charge carries with it as a necessary implication that he was at least reckless as to whether or not the GBL was a border controlled drug, in other words that he was aware of a substantial risk that that was so and, having regard to the circumstances known to him, it was unjustifiable to take the risk. 5 The Respondent came to the attention of the authorities when an international mail parcel containing the drug was intercepted at the Sydney Gateway Facility. The contents of the parcel were described as "parts". Examination revealed that the parcel contained the GBL. The parcel was addressed to the Respondent at his place of work. 6 Some weeks later search warrants were executed at the Respondent's home and place of work. At the latter premises nothing of significance was found but at the Respondent's home police found a number of bottles and other objects containing remnants of GBL. Also found were a number of containers of empty gel capsules, syringes and scales, an ecstasy tablet and 3 grams of cannabis leaf. 7 Those executing the search also seized a computer and associated equipment. Subsequent examination of this equipment revealed a number of emails relating to the ordering of the drug the subject of the charge, attempts to track its delivery progress and emails relating to earlier purchases of other parcels of the same drug. 8 During the search of his home, and in an ERISP in which the Respondent, accompanied by his solicitor, participated some months later, he made many admissions and, it may be said, he did so freely. The tenor of what he said was that he had experimented with drugs, more often than not legal ones, had read about GBL, noticed that it was openly advertised on the web and apparently not illegal in a number of first world countries overseas, that he had conducted a search of Austlii that led him to believe that the drug was not illegal in New South Wales, that he had used the GBL for a substantial period, and that on a number of occasions he had ordered it from overseas and paid for it in his own name without any attempt at concealment. He did acknowledge that he believed the United Kingdom government proposed to make the drug illegal in late 2009. 9 In this connection it is worth recording that counsel who appeared for the Crown in the sentencing proceedings informed Hosking DCJ that GBL was in fact inserted in the schedule of the Drug Misuse and Trafficking Act 1985 (NSW) only on 7 December 2007. Furthermore, it was common ground that the drug has a number of legitimate industrial uses. 10 In response to a request of the Court, after the hearing of the appeal counsel for the Crown informed the Court that GBL first came within the purview of relevant Commonwealth legislation on 24 October 1996 as item 15A of the Schedule to the Customs (Narcotic Substances) Regulation. Item 15A of the Schedule was "4 Hydroxybutanoic acid, its salts and esters". The Crown also asserted that GBL is an ester of Hydroxybutanoic acid and there was no contradiction by or on behalf of the Respondent. 11 The Respondent gave evidence during the sentencing proceedings. In substance he confirmed the accounts he had given previously. He said that he had experimented with psychodelic and other drugs and was pleased to find one that he thought was legal. He also gave evidence of, in partnership, conducting a number of businesses employing a significant number of people. He did not smoke or drink alcohol and said that one of the advantages of GBL was that its use did not result in hangovers or inhibit his ability to function in those businesses. He said that he had given some very limited amount of GBL to a very limited number of other people, the drug being so cheap that it was not worth charging for it. According to the Respondent, the GBL had a disgusting taste which could be avoided by using a syringe to fill the gel capsules and ingesting those. He said that he had not asked the supplier of the drug seized to make any illegal declaration as to the contents of the parcel. 12 The Respondent also said he would not have continued ordering GBL if he had thought it was illegal. He said that the sheer fear of having to go through again the experiences since the GBL the subject of the charge had been found is enough to ensure he never touches drugs again. 13 Hosking DCJ found that the Respondent was an honest witness and said that he was impressed with his evidence and indeed that it had not been the subject of any serious challenge during cross-examination. His Honour characterised the offence as being at the very bottom of the scale for the kind of offence and said that in the circumstances he regarded a full time custodial sentence as had been urged to be completely inappropriate and, in light of that conclusion, in fact prohibited by the terms of s 17A of the Crimes Act 1914 (Cth). 14 In light of his assessment of the Respondent his Honour observed that he had not the slightest doubt that the Respondent would never offend in the same way again. His Honour went on:- In my view, it is not necessary to place him under any form of recognisance for any purpose of specific deterrence, nor in my view, in the particular facts of this case is it necessary for such an order to address the question of general deterrence. In my view, the appropriate penalty in this case which falls in my view at the very, very bottom of the scale of this kind of offence is the imposition of a fine. 15 His Honour reached these conclusions despite recognising that the Respondent had been convicted in September 2008 of possessing an unauthorised firearm and fined $400 and in "June 2009, arising out of the things the investigators found on the execution of the search warrant at the premises he was fined $500 again … for possession of ammunition without a licence or permit, possession of a prohibited weapon and possession of two prohibited drugs, I think one MDMA tablet and a very small quantity of cannabis leaf which was for the Respondent's own personal use." 16 On the other side of the coin were some personal health issues, testimonials and the report of a forensic psychologist. It is sufficient to say so far as these matters are concerned that the Respondent had suffered from cancer when he was 14 and a recurrence later in the course of which he was introduced to what he described as the pleasant experience of morphine - an experience that inspired research and then experimentation with further substances. His Honour quoted from the psychologist's report, saying he accepted what was said. The quotation reads:- He described a shattered belief in himself as a result of the charges laid for this. He described a profound feeling of remorse for the offending behaviour despite his lack of knowledge that he was offending. He emphatically stated that had he known he was breaking the law then he would not have considered importing the product. His remorse is based on his realisation that he broke the law which is opposite to his norm. 17 In support of the appeal, the Crown placed great emphasis on parts of Part 1B of the Crimes Act and it is accordingly appropriate to quote some of the provisions:- 16A Matters to which court to have regard when passing sentence etc. (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) … (f) the degree to which the person has shown contrition for the offence; (g) if the person has pleaded guilty to the charge in respect of the offence—that fact; (h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (n) the prospect of rehabilitation of the person; 17A Restriction on imposing sentences (1) A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. 18 Reference was made to numerous cases of importation or other dealing in large quantities of prohibited drugs and long passages from those cases were quoted. It was submitted that his Honour failed to "impose a sentence… that is of a severity appropriate in all the circumstances of the offence" and that his Honour gave little weight to the objective seriousness of the offence and the course of criminality in which the Respondent had been engaged. It was submitted that his Honour's findings concerning specific and general deterrence were wrong and that a judge sentencing for the importation of a border controlled drug "must sentence on the basis that the sentence imposed will act to deter not only the offender from the commission of further offences but also to deter other members of the community from the commission or the same or similar offence or offences in the future". (Emphasis in original). 19 With respect to their author, the submissions wholly ignore the inclusion in s 16A(1) of the word "all", concentrate on quantity and the simple fact of importation and fail to recognise that there is more to offending, or even the objective criminality of an offence than merely the actus reus – see R v Way (2004) 60 NSWLR 168 at [86]. The proposition quoted in the second part of the immediately preceding paragraph ignores general sentencing practice and is inconsistent with what Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2007) 207 CLR 584 at [71] and with an oft cited statement by Mahoney ACJ (with the concurrence of Adams J, in R v Lattouf (Unreported, NSWCCA, 12 December 1996). 20 In Wong v The Queen, the three judges said:- The sentencer must, therefore, "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence" s 16A(1). Standing alone, the reference to imposing "a sentence… of a severity appropriate in all the circumstances of the offence" might be read as directing the sentencing Judge to determine a sentence proportionate to the wrong doing without regard to considerations of rehabilitation or incapacitation of the offender… or the offender's prior criminal history. But s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the Court the sentencer must take those into account. This group of matters is very diverse. … what is noticeably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. … Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command. (Emphasis in original) 21 In R v Lattouf Mahoney ACJ, with whose reasons Adams J agreed, said:- It is in my opinion necessary that the law allow to a sentencing judge a discretion to determine the sentence appropriate for the particular offence, for the particular offender, and for the circumstances of the particular case. General sentencing principles must be established, so that the community may know the sentences which will be imposed and so that sentencing judges will know the kind and the order of sentence which it is appropriate that they impose. But, of course, principles are necessarily framed in general terms. General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. For this reason, it is in my opinion important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge. Second, it is important to recognise the nature of the interests involved in the sentencing process. There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it. … But there are other interests to which the sentencing process must have regard; there are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. 22 Later cases in which the second paragraph of this passage has been endorsed include R v Clark (1997) 95 A Crim R 585 at [590-1]; R v Henry (1999) 46 NSWLR 346 at [10]; R v Ridgeway [2000] NSWCCA 286 at [37] and R v Bolt (2001) 126 A Crim R at [78]. 23 When one has regard to Hosking DCJ's findings as to the Respondent's state of knowledge, motivation, likely use of the drugs the subject of the charge, general character and likelihood of re-offending, his Honour was quite entitled to conclude as he did that no custodial sentence was appropriate. 24 When asked during the hearing of the appeal whether the Crown had a fall-back position against the possibility that its primary submission that there should be a full time custodial sentence was rejected, counsel appearing said at one stage that he did not, nevertheless mentioning the possibility of a sentence of imprisonment being suspended or an order for community service. 25 Given what has been said above and Hosking DCJ's views as to the impact of s 17A of the Crimes Act, the first of these alternatives must be rejected. So far as the second is concerned, while s 20AB of the Crimes Act authorises the making of a community service order, there was no evidence before Hosking DCJ or before this Court of the nature of that required before such an order can be made – c.f. Crimes (Sentencing Procedure) Act 1999 (NSW), s 86. 26 However, there still remains the question whether the penalty imposed by Hosking DCJ was manifestly inadequate. In my view it was. The recklessness implicit in the Respondent's plea means that a more substantial penalty should have been imposed than merely $500 which, compared against the statutory maximum is almost nominal. In my view an appropriate fine would be $3,000. 27 There was no discussion during the hearing of the appeal as to the Respondent's financial situation. In these circumstances, the Court should allow a reasonable, perhaps more than a reasonable time, for the fine to be paid. 28 Accordingly, I would propose the following orders:- (i) Appeal allowed; (ii) Quash the sentence imposed by Hosking DCJ on 20 April 2010; (iii) Order that the Respondent pay a fine of $3,000; and (iv) Allow the Respondent 3 months to pay. 29 McCALLUM J: I agree with RS Hulme J. As his Honour has observed, the Court was not addressed as to the respondent's capacity to pay a fine. In that context, I note that it would be open to the respondent to make an application to the Registrar of this Court under s 10 of the Fines Act 1996 for further time to pay in the event that, notwithstanding the extended period proposed by RS Hulme J, there is a real difficulty. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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