R v Bonham; ex parte Director of Public Prosecutions (Cth)
[2014] QCA 140
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- R v Bonham; ex parte Director of Public Prosecutions (Cth)[2014] QCA 140
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R v Bonham; ex parte Director of Public Prosecutions (Cth)[2014] QCA 140
R v Bonham; ex parte Director of Public Prosecutions (Cth)[2014] QCA 140
SUPREME COURT OF QUEENSLAND
CITATION: | R v Bonham; Ex parte Director of Public Prosecutions (Cth) [2014] QCA 140 |
PARTIES: | R |
FILE NO/S: | CA No 79 of 2014 SC No 38 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Director of Public Prosecutions (Cth) |
ORIGINATING COURT: | Supreme Court at Cairns |
DELIVERED ON: | 13 June 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 June 2014 |
JUDGES: | Margaret McMurdo P and Philippides and Dalton JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY INADEQUATE – where the respondent pleaded guilty to four counts of recklessly importing marketable quantities of border controlled drugs and one count of importing border controlled drugs – where the respondent was sentenced to an effective term of four years imprisonment to be released on parole after serving six months – where the respondent was engaged in the lawful business of importing substances to assist him in making a lawful cannabis-like substance – where the respondent's customers asked him if he could lawfully supply "party pills" – where the respondent adopted amateurish means to research the drug's legality and made enquiries which were not particularly broad or diligent – where the respondent threw the imported drugs away as soon as he realised they were illegal – whether the sentence imposed was manifestly inadequate Crimes Act 1914 (Cth), s 16A(2), s 19AB(1) Criminal Code 1995 (Cth), s 307.2(1), s 307.3(1) Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15, cited Alavy v The Queen [2014] VSCA 25, considered Chong v R [2011] NSWCCA 182, cited DPP v Coory (2011) 214 A Crim R 301; [2011] VSCA 316; considered Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Calis, unreported, Supreme Court of Queensland, Mullins J, 7 November 2012, considered R v Calis [2013] QCA 165, considered R v Carter and Sullivan unreported, Northern Territory Supreme Court, Martin CJ, 21 August 2009, considered R v Labanon; Ex parte Commonwealth Director of Public Prosecutions [2006] QCA 529, considered R v Massey, unreported, Supreme Court of Queensland, Jackson J, 28 June 2013, considered R v McBride (2003) 143 A Crim R 246; [2003] NSWCCA 282, citedR v Sutton [2013] QCA 151, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited |
COUNSEL: | M J Copley QC, with G P Lynham, for the appellant J M Sharp for the respondent |
SOLICITORS: | Director of Public Prosecutions (Cth) for the appellant Brisbane Criminal Lawyers for the respondent |
- MARGARET McMURDO P: The respondent was charged with four counts of importing marketable quantities of border controlled drugs under s 307.2(1) Criminal Code (Cth) (counts 1, 3, 4 and 5); importing border controlled drugs under s 307.3(1) Criminal Code (Cth) (count 2); and dealing with proceeds of crime under s 400.9(1A) Criminal Code (Cth) (count 6). On 26 November 2013 he pleaded guilty to counts 1 to 5. After a seven day trial in February 2014, the jury were unable to reach a verdict on count 6 and were discharged. After the four day retrial the following month, a different jury found him not guilty. On 17 March 2014 the judge (who presided at both trials) sentenced him to four years imprisonment on counts 1, 3, 4 and 5 and to 18 months imprisonment on count 2. His Honour directed under s 19AB(1) Crimes Act 1914 (Cth) that he be released on parole after serving six months. The appellant, the Commonwealth Director of Public Prosecutions, has appealed against those sentences contending that they are manifestly inadequate (ground 1) and that the judge erred in imposing a non-parole period of only six months imprisonment, being one-eighth of the overall head sentence (ground 2).
The circumstances of the offending
- The parties agree that the respondent was sentenced on the following factual basis. On 2 August 2011 a package addressed to the respondent at a street address in Clayfield arrived in Sydney from China. Customs officers opened it and found a bag of pinkish off-white powder and a bag of pink crystalline substance. One bag weighing 127.1 grams contained 102.5 grams of 4-fluoroamphetamine (a drug analogue of amphetamine, differing from it only in that 4-fluoroamphetamine has a fluorine atom) with a purity of 80.7 per cent (count 1). The other bag weighing 23 grams contained 20 grams of 4-methyl-N-ethylcathinone (a drug analogue of methcathinone, differing from it due to the presence of two alkyl groups) with a purity of 83.9 per cent (count 2). The respondent did not receive the package.
- On 26 August 2011 another package addressed to the respondent, this time at a company with a Darwin GPO box address arrived in Sydney from China. It was forwarded to the post office box but not collected and returned to Sydney where Customs officers opened it on 11 October 2011. It contained two bags of dark powder with a total weight of 198.9 grams containing 34.4 grams of 4-fluoroamphetamine with a purity of 17.3 per cent (count 3). The respondent did not receive the package.
- Emails on the respondent's computer showed the following. On 10 October 2011 he requested "John" in China to supply 500 grams of "4-fa"[1] and 100 grams of "4mec"[2] and asked the price. John replied that the "4-fa" could be supplied for $A3,000 and the "4mec" for $A1,200. The respondent replied that he would pay with funds from his business account and requested the items be delivered to him care of the address of a tobacconist's shop in Cairns. The "4mec" was not despatched but the order for "4-fa" was and on 19 October 2011 the respondent confirmed it had arrived.
- On 16 November 2011 the respondent arrived in Cairns by plane from Perth and booked into a hotel. He later visited the tobacconist and collected some boxes (count 4). The next day Australian Federal Police officers executed a search warrant at his hotel room but did not find any border-controlled drugs. Next to his laptop was a note with the words "4-methylmethcathinone", "4-fluoroamphetamine" and "4-fa". The respondent gave evidence at his trials that when he discovered on the AustLII website on 16 November 2011 that the Drugs Misuse Act 1986 (Qld) listed 4-fluoroamphetamine as a dangerous drug, he threw the boxes he had collected from the tobacconist into a rubbish bin.
- On 12 November 2011 a package addressed to the respondent at his company with the street address of his Cairns hotel arrived in Sydney from China. Customs officers opened it and found a beige powder weighing 1.043 kilograms containing 135.6 grams of 4-fluoroamphetamine with a purity of 13 per cent (count 5).
- The total weight of 4-fluoroamphetamine seized by police was 272.5 grams. On the assumption that the package which the respondent discarded had a purity of 13 per cent (the lowest level of purity found in the seized packages) the total pure weight of imported 4-fluoroamphetamine was 337.5 grams. The total pure weight of the 4‑methyl-N-cathinone was 20 grams. In all, the respondent paid $11,520 for these drugs. He was the sole importer and intended to sell them for profit which was potentially between $31,500 and $90,000.
- The respondent gave evidence at his trials that he was engaged in the lawful business of importing substances to assist him in making synthetic cannabis which he lawfully on-sold to adult stores and tobacconists. When customers asked him if he could supply lawful "party pills", he checked the Drugs Misuse Act 1986 (Qld) on the AustLII website. As it did not disclose that the substances the subject of counts 1 to 5 were proscribed, he imported the drugs.
The submissions at sentence
- The prosecutor referred the judge to a number of cases to provide assistance in the sentencing process including R v Calis;[3] R v Massey[4] and R v Carter and Sullivan.[5] He submitted a period of actual custody was required in the present case.
- The respondent had no criminal history and was 49 years old when the offences occurred and 51 at sentence. He was born in England and was an Australian citizen. His counsel tendered material supporting her contention that he had a solid work history. He had attained a Certificate IV in occupational health and safety and hoped in the future to work as a safety officer, perhaps in the mining industry. He suffered from medical ailments: a heart condition with high blood pressure and depression for which he took medication twice daily; severe sleep apnoea requiring him to wear a gum re-alignment brace at night and which had to be cleaned daily in a special solution to prevent bacteria build-up; bleeding gums for which he used anti-bacteria mouthwash twice daily; 30 per cent hearing loss in the right ear and 20 per cent hearing loss in the left ear and memory loss as a side effect from his medication. His 88 year old mother was frail and ill and lived in the Canary Islands and he was anxious to spend time with her.
- Defence counsel submitted that the respondent's level of criminality differed from that of most offenders in the cases upon which the prosecution relied. His criminality was at the very lowest end of the range of offending of this kind. He pleaded guilty at an early stage on the basis that he was reckless in not appreciating the true state of the law. The most helpful case was Carter and Sullivan, also a case of a reckless mistake as to the law. At the time of the offending, the respondent was conducting a legitimate business. As soon as he realised the drugs he was importing for his business were unlawful, he stopped importing them and threw away those he had received. He would not re-offend so that personal deterrence was not a factor in sentencing in this case. A sentence which required the respondent to serve actual time in custody was inappropriate.
- The sentencing judge invited counsel to find during the lunch adjournment cases providing some guidance as to applicable legal principles as to sentencing in such a novel case.
- In reply, the prosecutor referred to DPP v Coory[6] as authority for the proposition that ignorance of the law was no excuse for the objective gravity of the respondent's offending.
The judge's reasons
- In sentencing, the primary judge made the following observations which show how carefully his Honour considered the matter. The respondent's guilty pleas were entered at an early stage. The sentencing was delayed by the trials on count 6. At the retrial the jury took but 20 minutes to acquit. He was in a business lawfully importing a substance which he sprayed on vegetable matter and then sold as a synthetic cannabinoid at tobacconists and sex shops. The product was variously called "HUSH" or "SHHH" and apparently gave some euphoric effect. His importations of that apparently lawful substance were sometimes delayed or unsuccessful because of seizures by Customs. He was aware that he was operating a business in a grey area of the law where new synthetic products were being produced faster than legislatures could proscribe them. The prospect that the authorities would mistakenly perceive the respondent's imports as being unlawful was why he imported them to locations close to his various markets. When customers enquired whether he could provide a lawful "party pill", he searched on the internet and thought he could lawfully import 4-fluoroamphetamine and generate a product which he could lawfully on-sell. Similarly, he thought he could develop a potential new legitimate business outlet importing 4-methyl-N-ethlycathinone but this was a fleeting interest and resulted in but one importation.
- After setting out the circumstances constituting the offences, the judge noted that the respondent checked the AustLII website on 16 November 2011 and discovered the Drugs Misuse Act Regulations had been amended to add 4-fluoroamphetamine to the list of banned drugs. Until then, the means the respondent had adopted to research the drug's legality "were amateurish to say the least". He made no active enquiries with the Federal Police or Customs. He did not look at the Commonwealth legislation on AustLII. The judge accepted, nevertheless, that the respondent did make enquiries although they were not particularly broad or diligent. He imported the drugs for on-supplying in a commercial context, reckless as to whether their importation was unlawful. As soon as he realised they were illegally imported, he threw away the drugs he received. That was the most likely inference from the jury's not guilty verdict on count 6 and was consistent with the fact that no unlawful drugs were found in his possession.
- He was a first offender who had been naïve and reckless. For 51 years he had been a worthwhile member of the community with a sound work history. He had future work plans and suffered from a variety of medical conditions. His Honour noted that the gravity of counts 1, 3, 4 and 5 was reflected in the maximum penalty and in the sentencing patterns in other cases. Convictions for importation of such drugs were serious and attracted significant sentences for reasons of deterrence, particularly general deterrence. Concurrent sentences should be imposed. The respondent had demonstrated contrition under s 16A(2)(f) Crimes Act in disposing of the drug for which he had paid about $3,000. Desisting from continuing his offending was a particularly significant mitigating consideration. He was cooperative with the authorities only in his early guilty plea. This was not a case that called for significant personal deterrence. He was unlikely to re-offend and he had carried the burden of these charges for some time. Any lengthy period of imprisonment may mean he would not see his ailing 88 year old mother again but this could not be a significant determinative consideration in sentencing for offences of this kind.
- Many of the cases put forward by counsel were not comparable but they did show that very significant penalties are imposed for importation offences. Carter and Sullivan involved the importation of methcathinone, a less serious level drug than 4‑fluoroamphetamine. There, a jail sentence was imposed with immediate release but there was no commercial motive and the offending was for personal use. The respondent's case was more serious. In R v Calis[7] and R v Labanon; Ex parte Commonwealth Director of Public Prosecutions[8] the offenders had acted recklessly but they were obviously offending in a context where they must have realised that what they were doing was unlawful so that those cases were not comparable. Coory provided some assistance as it was a case where there was recklessness as to the lawfulness of the enterprise,[9] as did the observations of the Court of Appeal in Labanon.[10] But by contrast, the present respondent was intending to add another legitimate limb to his existing lawful business. The manner of his offending did not demonstrate a consciousness that what he was doing was against the law. His use of different delivery addresses for the imported product did not demonstrate that he was he was up to no good but rather characterised the geographical spread of his operation and spread the risk of a wrongful seizure of what he perceived to be a legitimately imported product.
- Whilst ignorance of the law was no excuse as to liability, it lessened culpability in sentencing. The offender who imported drugs to make money from their on-sale without knowing they are illegal was obviously less culpable than the offender who did so knowing it was against the law. The assessment of the offender's culpability included a consideration of the degree of recklessness or wilful blindness engaged in, together with the offender's motivating purpose. The respondent's importation of drugs was for the commercial purpose of on-selling to others for profit. His efforts to ensure he was importing a lawful product were surprisingly cursory. The judge noted his advantage in seeing the respondent and others give evidence and emphasised that the respondent voluntarily desisted from offending once he realised the imported product was unlawful.
- The cases to which his Honour had been referred suggested that importations of the kind to which the respondent had pleaded guilty attracted sentences ranging between five and ten years imprisonment. The exercise of the sentencing discretion in the respondent's unique circumstances was difficult. He should receive a lesser sentence than usual, although a period of actual detention must be imposed. Offenders who fail to take proper care in ascertaining whether they are actually breaking the law must know that such reckless behaviour will result in a significant penalty.
The appellant's contentions in this appeal
- The appellant emphasised that the maximum penalty for counts 1, 3, 4 and 5 was 25 years imprisonment and for count 2, 10 years imprisonment. These penalties were based on a regime which emphasised the quantities of border-controlled drugs and financial rewards available from dealing in them, not any legislative perception of a particular drug's harmfulness: Adams v The Queen.[11] Other sentences imposed for importing similar marketable quantities of border-controlled drugs were relevant: Wong v The Queen.[12] The respondent's sentence, when compared to sentences imposed in similar cases, was unreasonable or plainly unjust and was not of a severity appropriate in all the circumstances. General deterrence was of particular importance. The respondent was a mature man who was wilfully blind to the possibility that the drugs he imported were border controlled drugs. He intended to sell the drugs, not to keep them for his own use, and his judgment was not clouded by addiction.
- In Chong v R,[13] a 26 year old addict with an irrelevant criminal history imported as a courier 151 grams of pure cocaine with a street value of between $86,343 and $135,990. She was sentenced to six years imprisonment with a non-parole period of three and a half years. On appeal, the sentence was found to be manifestly excessive and a sentence of five years and three months with a non-parole period of two years and nine months was substituted.
- In Alavy v The Queen,[14] the Victorian Court of Appeal considered a seven year sentence with a non-parole period of five years "fairly typical" and not manifestly excessive in circumstances where Alavy had imported 397.8 grams of pure methamphetamine. The drugs were worth between $228,000 and $495,000. The applicant had no prior convictions, was not a user of drugs and had a good employment history.
- In R v Sutton,[15] a 52 year old man pleaded guilty to importing 127.2 grams of pure cocaine into Australia by secreting it inside his body. He intended to use some and sell the rest to friends. He had a previous conviction for supplying a prohibited drug, for which he was sentenced to two years imprisonment. He unsuccessfully appealed against his five year sentence with a non-parole period of two and a half years. The Court of Appeal regarded his criminality as less serious than that of a courier of drugs for others.
- The judge was right to identify that ordinarily the appropriate head sentence for the respondent's offences would be between five and 10 years imprisonment. Whilst the respondent's abandonment of the drugs was a relevant consideration, it was not a controlling or predominant one. Similarly, whilst his ignorance of the law should also be considered,[16] the judge placed too much weight on this factor. In determining that the head sentence should be somewhat less than the lower end of the five to 10 year range and that the non-parole period should be considerably shorter than would ordinarily be the case, the judge imposed a sentence which was manifestly inadequate.
- As to ground 2, the appellant accepted that the judge had a discretion to fix a non-parole period under s 19AB Crimes Act and could fix the non-parole period to take effect at any time during the periods of imprisonment imposed: Hili v The Queen; Jones v The Queen.[17] But the judge had to take into account the matters set out in s 16A(1) and (2) Crimes Act and the need for deterrence.[18] Despite the mitigating features, a non-parole period of only six months was manifestly too short to deter those who might be inclined to import border controlled drugs to on-sell for profit. It was also too short a period to deter those who would commit such offences and point to ignorance of the law as an explanation for it. Justice required that the non-parole period be substantially longer than six months to effectively deter those inclined to import drugs without first taking reasonable steps to apprehend whether the importation was proscribed.
- The appellant contended the appeal should be allowed; the cases upon which the appellant relied demonstrated that a more severe sentence of no less than five years imprisonment should be imposed and the respondent should spend longer than six months in custody.
Conclusion
- The maximum penalty for counts 1, 3, 4 and 5 was 25 years imprisonment and for count 2, 10 years imprisonment. In determining whether the sentence was manifestly excessive, this Court must consider the sentence as a whole, both the head sentence and the non-parole period. A judge exercising the sentencing discretion must, through the process of instinctive synthesis discussed in Wong v The Queen,[19] consider the many exacerbating and mitigating features peculiar to that particular case.
- The respondent pleaded guilty on the basis that he was reckless in his belief that the drugs could lawfully be imported. There is no appeal from the sentencing judge's following findings of fact. The respondent was operating a lawful business importing legal substances which he on-sold as having an effect similar to illegal substances. He checked the Queensland legislation on the AustLII website and did not find that the substances he imported were proscribed. He destroyed the imported border-controlled drugs which he received, once he realised he had acted unlawfully. Those findings were well open on the evidence, especially as the judge had the advantage of twice seeing and hearing the respondent give evidence and be cross-examined on this and related issues.
- How a sentencing court deals with an allegation that the offender did not know he was acting unlawfully will turn on the circumstances of each case. In Coory the Commonwealth Director of Public Prosecutions appealed against the adequacy of the sentence of 20 months imprisonment with an immediate release order. Coory pleaded guilty to importing and possessing for profit 4-methylmethcathinone, a drug not then proscribed under Victorian law. It was proscribed under Commonwealth law although the traffickable, marketable and commercial quantities had not yet been fixed. He pleaded guilty but he asserted, without giving evidence on the point, that he believed he was not acting unlawfully. Harper JA considered that this assertion should be given little, if any, weight; if he did not know, he certainly suspected that the importation was illegal.[20] By contrast, in the present case the judge's uncontested findings meant that, in exercising the sentencing discretion, his Honour was right to give some weight to the respondent's belief, albeit reckless, that he was acting lawfully.
- In Labanon, the respondent was convicted after an eight day trial of importing a large, commercial quantity of methylamphetamine. The jury delivered a special verdict that he acted recklessly rather than deliberately. He was sentenced to six years imprisonment with a non-parole period of three years. The Commonwealth Director of Public Prosecutions successfully appealed, contending the sentence was manifestly inadequate. This Court noted that the special verdict warranted a significantly lesser sentence than that imposed on his co-offenders (14 years imprisonment with a non-parole period of seven years, and 12 and a half years imprisonment with a non-parole period of five years and nine months) as they did not have the benefit of such a finding.[21] But as Labanon was a mature officer on a US warship who agreed to carry the package containing the drugs for others, this Court determined that he must have been well aware of the risks in so doing. The sentence was manifestly inadequate and a sentence of eight years imprisonment with a non-parole period of four years was substituted.
- It is common ground that Labanon's offending was objectively much more serious than that of the respondent. In the present case, the judge accepted cogent evidence, also accepted by the jury, that the respondent was running a legitimate and successful business importing lawful substances and that he searched the AustLII website to ascertain whether the substances were proscribed before he imported them. Although he could and should have made much more extensive enquiries, unlike Coory and Labanon he did make some plausible efforts to ascertain whether the drugs were proscribed; once he found they were, he discarded the drugs he had received. This made him less reckless than both Labanon and Coory. The matters listed in s 16A(2) Crimes Act were also relevant in sentencing the respondent, particularly s 16A(2)(a), (c), (f), (g), (j), (k), (m), (n) and (p).
- The comparable cases relied on by the parties at sentence and in this appeal demonstrate that ordinarily an offender's importations of these amounts of border-controlled drugs would result in a sentence of about five years imprisonment (Massey, Chong and Sutton). But, as the primary judge appreciated, this was no ordinary case. The relevant, competing circumstances of the offenders in Chong, Alavy and Sutton on which the appellant placed emphasis were so different to the respondent's that these cases are of limited assistance in determining whether the sentencing discretion in this case was properly exercised.
- Carter and Sullivan is more helpful. They each entered timely guilty pleas to importing methcathinone (maximum penalty, 10 years imprisonment) and possession of MDMA (maximum penalty, two years imprisonment). The judge described the circumstances as "quite unusual" and noted that counsel had not been able to point to a like case. They were seeking a loophole in the drug laws and hoped to obtain from overseas non-proscribed drugs close in their effect to proscribed drugs in Australia. Initially, they thought they were operating lawfully but it became apparent that there was a significant risk that they were acting unlawfully so that they were reckless in their offending. They were drug users and planned to use the imported substances themselves or perhaps give some away to friends. Neither had previous convictions and both had dependent children. Sullivan was 34 and had been medically discharged after 13 years military service. Carter was 26 and had a responsible position in business and a sound work history. They were each sentenced to two years and three months imprisonment and, because of the mitigating features including their belief they were acting lawfully, the sentence was fully suspended for three years.
- The sentencing judge in this case rightly recognised that the respondent's offending was objectively more serious than that of Carter and Sullivan: the maximum penalty on each of counts 1, 3, 4 and 5 was 25, not 10, years and the respondent was planning to on-sell for profit. But the respondent's recklessness was certainly no greater than that of Carter and Sullivan and it was, at least in part, their belief that they were acting lawfully which saved them from a period of actual custody. The sentencing judge recognised the inherent and objective seriousness of the respondent's offending and that in many cases where offenders import border-controlled drugs of this quantity, penalties in excess of five years imprisonment were imposed. His Honour rightly considered that the sentencing principle requiring general deterrence necessitated a period of actual custody. The judge was entitled to consider that the unique mix of mitigating circumstances warranted a head sentence slightly less than usual for offending of this kind. The head sentence of four years imprisonment was not manifestly inadequate in all the circumstances.
- In sentencing for Commonwealth offences, the non-parole period, commonly, is set at about the two-thirds point. A sentencing judge, however, has a discretion to fix the non-parole period to take effect at any time during the period of imprisonment: Hili v The Queen; Jones v The Queen.[22] The question is whether the non-parole period of six months imprisonment makes the sentence as a whole manifestly inadequate.
- The respondent did not profit from his endeavours; indeed, he lost the money he invested and destroyed the border-controlled drugs he received upon learning that they were proscribed. The judge rightly concluded that the respondent's law-abiding history meant that he was most unlikely to re-offend so that personal deterrence was not a relevant factor. General deterrence was, however, a significant consideration. The appellant contends that six months actual detention was insufficient to act as a deterrent to others. But the sentence included the recording of convictions for five serious offences. No doubt such a criminal history would significantly detrimentally impact upon various aspects of an otherwise law-abiding person's life, including the ability to obtain visas for and travel to some countries. The sentence involved aspects of public shaming: his trials, sentence and appeal were heard in public and the reasons in this appeal have been published and are freely available on the internet. The criminal justice process has continued over more than two and a half years of the respondent's life. He has been required to serve six months actual imprisonment, with all that entails in terms of loss of liberty and dignity. On his release, he will be subject to the burden of parole for a further three and a half years. It seems to me that otherwise law-abiding business people would be deterred by such a sentence from importing substances of the kind and quantities with which this case is concerned to on-sell for profit without making the necessary enquiries to ensure the legality of their undertaking.
- The serious aspects of the offending warranted a four year head sentence but the novel combination of mitigating features justified the respondent spending an unusually short proportion of that sentence in actual custody. In this extraordinary case, a non-parole period of six months imprisonment being but one-eighth of the overall head sentence did not make the sentence manifestly inadequate. The sentencing discretion was soundly exercised.
- For these reasons, I would dismiss the appeal.
- PHILIPPIDES J: I agree for the reasons stated by McMurdo P that the appeal should be dismissed.
- DALTON J: I agree that the appeal in this matter ought to be dismissed, and I agree with the reasons of the President.
- The sentencing remarks of the primary judge are very careful and balance all factors relevant to his discretion. In my view it is particularly significant in this case that the respondent was a man of mature years with no criminal history who intended at all times to stay within the law. The primary judge said, and I agree, that the sincerity of this intent was demonstrated by his throwing away the drugs sent to Cairns immediately he realised that they were illegal. He made no attempt to recoup the money he had spent thus far, perhaps by attempting to on-sell just that package and then desisting from his scheme to import 4-fluoroamphetamine. Further evidence of the sincerity of his belief is found in his having the packages of drug posted to him in his own name.
- This case is distinct, in my view, from a case where an offender suspects that he or she is, for example, assisting in an illegal operation by moving drug or precursor drug but is reckless in the sense that he or she undertakes the acts recklessly indifferent to whether or not the behaviour is legal. The offender here could have researched the question of whether 4-fluoroamphetamine was proscribed by law more thoroughly than he did. In that respect he was careless. But it is important in my view that he did have a sincere intention only to act lawfully.
Footnotes
[1] A recognised abbreviation for 4-fluoroamphetamine.
[2] It is common ground that this is an abbreviation for 4-methyl-N-ethylcathinone.
[3] Unreported, Supreme Court of Queensland, Mullins J, 7 November 2012; [2013] QCA 165.
[4] Unreported, Supreme Court of Queensland, Jackson J, 28 June 2013.
[5] Unreported, Northern Territory Supreme Court, Martin CJ, 21 August 2009.
[6] [2011] VSCA 316; (2011) 214 A Crim R 301.
[7] [2013] QCA 165.
[8] [2006] QCA 529.
[9] [2011] 214 A Crim R 301; [2011] VSCA 316, Harper JA, [38].
[10] [18].
[11] (2008) 234 CLR 143, 146, [3].
[12] (2001) 207 CLR 584, 609, [67].
[13] [2011] NSWCCA 182.
[14] [2014] VSCA 25.
[15] [2013] QCA 151.
[16] R v McBride (2003) 143 A Crim R 246, 252, [40]-[41].
[17] (2010) 242 CLR 520, 529-530, [29].
[18] Hili, 533, [40]-[41].
[19] (2001) 207 CLR 584, [75], [77].
[20] (2011) 214 A Crim R 301, 309, [38].
[21] [18].
[22] (2010) 242 CLR 520.