Director of Public Prosecutions (Cth) v McMurray
[2024] VCC 1289
•19 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01005
CR-20-01006
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| BRETT GRAHAM MCMURRAY |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2024 | |
DATE OF SENTENCE: | 19 August 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v McMurray & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1289 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Guilty plea – importing a commercial quantity of a border-controlled drug – GBL – motivation for offending not profit-related – imported GBL to clean steel moulds and to manufacture GHB for personal use – co-accused aided and abetted in the importation – limited role – delay – first offender actively involved in the steps taken to effect the importation - role of co-offender in the importation was a limited and subsidiary one
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth)
Cases Cited:Smith v R.; R v Afford [2017] HCA 19; DPP v Merryfull and Bloomfield [2023] VSCA 244; DPP (Cth) v Maxwell [2013] VSCA 50; R v College [2010] NSWCCA 302
Sentence: McMurray: convicted and sentenced to 18 months’ imprisonment, released after serving six months of the term of imprisonment
Tran:convicted and sentenced to 12 months’ imprisonment, released immediately
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Ms S.J. Holmes | Commonwealth Director of Public Prosecutions |
| For Offender McMurray | Mr A.S. Dickenson | Rainer Martini & Associates |
| For Offender Tran | Mr N.A. Howard | Peter Lunt Lawyers |
HER HONOUR:
1Brett McMurray, you have pleaded guilty to one charge of importing a commercial quantity of a border-controlled drug, namely gamma-butyrolactone ('GBL'), contrary to s 307.1(1) of the Criminal Code Act (Cth) ('the Code'), the maximum penalty for which is life imprisonment or 7500 penalty units, or both.
2Ly Tran, you have pleaded guilty to having aided, abetted, counselled or procured Brett McMurray to import a commercial quantity of a border-controlled substance contrary to s 307.1(1) of the Code, the maximum penalty for which is life imprisonment or 7500 penalty units or both, by virtue of s 11.2(1) of the Code.
Circumstances of offending
3The circumstances of your offending are as follows.
4In 2018 you, Mr McMurray, were employed as the General Manager of Della Precast, a company that manufactured concrete slabs using steel moulds. The business was owned by Mr Edward Della-Bosca, and operated out of premises in Westpool Drive, Hallam.
5In July 2018, you made enquiries with Victoria Police about the process of applying for permission to supply GBL as a steel cleaning product. Your email to Victoria Police dated 4 July 2018 was headed, 'Permit to purchase and process Controlled Substance application'. In the body of the email, you wrote that you had become aware that GBL is a 'highly effective steel cleaner'. You said that you had approached a chemical supplier but had been informed that the product required a licence. You said you understood that GBL was a controlled substance, and that the product would come into your factory labelled as another substance and marked 'poison'.
6Victoria Police responded that day, advising you (incorrectly) that GBL is controlled by Health Victoria and that applications are available on their departmental website.
7GBL is a border-controlled substance and a prohibited import under the Customs (Prohibited Import) Regulations 1956. Although it has a number of industrial applications, GBL is also used in the manufacture of illicit drugs. As a consequence, GBL cannot be imported into Australia without permission or authorisation from the Secretary of the Department of Health of the Commonwealth.
8As it transpires you never sought nor obtained permission or authorisation to import GBL into Australia and made no further enquires following receipt of the advice given by Victoria Police.
9On 10 October 2018, Australian Border Force officers took possession of a consignment from China which was addressed to the premises of Della Precast in Westpool Drive, Hallam, and named you as the consignee. The description given to the consignment was that it contained 'detergent'.
10Australian Border Force officers conducted presumptive testing of the liquid contained in a 25-litre container found within the consignment, which tested positive for GBL. Subsequent analysis revealed that the container held 21,674.3 grams of GBL, with a purity of 96.6 per cent.
11You and your then partner (now wife), Ms Tran, had travelled overseas on 31 October 2018. When you returned to Australia on 6 November 2018, you were questioned by border force officers about the consignment and importation of GBL.
12You told the ABF officers that you ordered the GBL from China in order to reduce 'patchy' colouring in concrete manufactured by your business, Della Precast. You said that you had previously tried other products to rectify the discolouration of the concrete, without success. You denied knowing that GBL could be used in the manufacture of methylamphetamine.
13You provided ABF officers with a copy of an email from a company called Chem-Supply Pty Ltd dated 6 November 2018. The owner of that company, Richard Eveleens, later confirmed with investigators that he communicated with you on 5 November 2018 about establishing an account with Chem-Supply and obtaining approval to transact in GBL.
14On 6 November 2018, you provided ABF officers with access to your phone which contained a receipt from Western Union dated 20 September 2018 in the sum of $2794.69 made out to Ly Tran.
15Your employer, Mr Della-Bosca, subsequently provided a statement to investigators confirming your employment as General Manager with Della Precast. He agreed there had been a problem with colour consistency with the concrete product since May 2018, but said that he had never requested staff to purchase chemical supplies from overseas and that he alone was responsible for payment of all corporate purchases.
16Investigators also obtained a statement from John Stavrakis, who ran another chemical supply company, Mera Chemicals Pty Ltd. Mr Stavrakis confirmed that he had assisted you in relation to a problem with black residue on concrete panels being manufactured by Della Precast in September 2018.
17On 16 November 2018, the federal police executed a search warrant at your property in Rowville. Investigators conduced a digital record of conversation with you during which you stated that:
·you were aware the imported product was a restricted chemical that required a permit, but not a prohibited chemical;
·you imported and paid for the GBL after Ly (Tran) said you could buy it overseas, and that it 'was an easy option';
·you were fully aware it was GBL but had no idea it was a drug-related product;
·you spoke to Victoria Police after you ordered the GBL;
·your reason for the importation was to use it 'as a release agent' in moulds for concrete panels to overcome discolouring issues;
·you changed the GBL name because you understood it was restricted but were 'desperate' and 'wanted to make sure the product wasn’t stopped'; and
·that you did not understand you required a permit to import the substance.
18Investigators also conducted a record of conversation with you, Ms Tran, on 16 November 2018 during which you stated that:
· Brett (McMurray) did the research into GBL and it had a range of uses, from cleaning to health benefits;
· GBL is the actual substance [being imported] but you knew that it could turn into GBH (or something similar) and were aware that GBH is a party drug;
· you told Brett McMurray that the product could be sent from China and gave him this information and he started looking into it;
· the reason for obtaining 25 kilograms was because you were advised you would not be able to secure more; and
· you paid for the order as Brett McMurray was busy at work.
19Mr McMurray, the police also searched your iPad and located email exchanges between you and an unknown person using the name 'Eric' via email between 21 August 2018 and 30 August 2018. I note that these emails were exchanged subsequent to your enquires with Victoria Police. In these emails, you ask about the price per litre of GBL and how it may be delivered to Melbourne 'securely'. On 27 August 2018, you wrote to 'Eric' stating that you would pay for 50 kilograms of GBL, asking for confirmation that it is of the 'highest purity' and asking how it would be listed for import. On 28 August 2018, 'Eric' responded to you confirming that purity is 99.7 per cent and stating that 'they may use name flavour to send'.
20On 29 August 2018 you wrote to 'Eric' stating you would pay $1500 into a Western Union account that day. You asked that the first container of 25 kilograms be sent 'urgently' and the second in one week’s time. You asked that they be labelled differently. You asked that the container be sent to the Westpool Drive Hallam address and asked that it be posted to 'B Tran' in order to 'protect my personal liability'. 'Eric' responded that he would change the product name because if it was labelled GBL it would be difficult to get through customs. You replied, 'No, no, no, please do not ever [write] this as the penalties in Australia are significant'. You told 'Eric' you were comfortable with it being labelled a cleaning or food product, 'even saline or anything, certainly never reference what it is'.
21During the search of your residential property in Rowville, the police located a piece of paper in a kitchen cupboard on which you had written various notes and calculations. During your record of conversation, you admitted that you wrote the document and that it relates to the manufacture of GHB. A forensic expert later examined the note and concluded it contained a step-by-step process to chemically react GBL with sodium hydroxide. Although not further detailed in the note, the forensic expert was of the opinion that the chemical reaction, if continued to end, would result in the sodium salt of GHB.
22Police also located scientific glassware and laboratory equipment, including a pump, heat source and PH paper in the study.
23Both you and Ms Tran told police these items were used to try to manufacture perfume because the perfume preferred by Ms Tran (Blue Bottle Bvlgari) was no longer available. However, a statement subsequently obtained from the retail manager at Chemist Warehouse confirmed that this perfume was still available and stocked. A further statement provided by the Director and Master Perfumer of Fleurage Pty Ltd, stated there is no need for heat, pumps or tubing when making perfume. Further, that PH paper is not required as the ingredients used to manufacture perfume are PH neutral.
24On 14 June 2019, investigators analysed the two phones seized from your address.
25Mr McMurray, a search of your web history revealed searches of the sites for information regarding GHB between February and March 2018, including:
'- does orange juice reverse the effect of GHB;
- how to quickly reverse the effect of GHB;
- if I have liquid on top of [an] almost white at the bottom has the GBL reacted with the NaOH?
- why use distilled water when making GBH (sic)
- human consumption of GBL RATES
- how to test GHB for quality
- how to test GHB for strength and quality.'
26You had also searched websites under headings such as 'reliable GBL supplier', 'buy gamma-butyrolactone Australia' and 'where to buy GBL, gamma- butyrolactone Melbourne'.
27Ms Tran, analysis of your phone recovered an Australia Post receipt dated 20 September 2018, showing payment of $2794.69 AUD sent to the Western Union account of the customer in China, and Western Union paperwork recording this payment was made by you. Images containing the relevant tracking number for the consignment of the GBL were also found on your phone.
Commonwealth sentencing
28The offence of importing a commercial quantity of a border-controlled drug is a Federal offence. Section 16A(1) of the Crimes Act 1914 (Cth) (the Act) provides that in determining the sentence to be passed in such a case, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. In addition to any other matters, the court must take into account the matters listed in s 16A(2) of the Act which I now address in turn.
Nature and circumstances of the offence – s 16(A)(2)(a)
29I turn first to discuss the nature and circumstances of your offending and to assess the objective gravity of your offending.
30The objective gravity of the offence of importing a commercial quantity of a border-controlled drug is unambiguously reflected in the maximum penalty of life imprisonment. As the prosecution submissions highlight, elementally the offence is committed when an offender intentionally imports a substance into Australia, the substance comprising a commercial quantity of a border-controlled drug and the offender intends or is reckless as to the substance being a border-controlled drug.[1]
[1]Smith v R; R v Afford [2017] HCA 19
31The objective gravity of the offence is informed by a number of relevant factors as set out in the case of Nguyen (2010) 205 A Crim R 106. Here, you Mr McMurray were actively involved in the steps taken to effect the importation, as is clear from your email correspondence with the person identified as 'Eric'. I am satisfied that you were the driving force behind the importation. The quantity of GBL you arranged to import was significant, being 21.6 kilograms of pure GBL. This is 21 times the commercial quantity. Your email exchange with 'Eric' indicates you intended this to be the first of two such importations, although you are only to be sentenced for the one importation.
32In this case, however, your motivation for the offending stands in stark contrast to that of most drug importation cases. Usually, the gravity of the offence is aggravated by the fact the border-controlled substance was imported as part of the illicit drug trade, motivated by the prospect of significant profits. Here, the prosecution concedes there is no evidence you intended to traffic in GHB or otherwise to on-sell the GBL. Rather, I am satisfied that your motivation to import the commercial quantity of GBL was two-fold. Firstly, that you sourced and imported the GBL as a cleaning agent for use cleaning the steel products to remedy the discolouration of concrete manufactured by Della Precast. Secondly, as evidenced by the notes found at your premises, you intended to convert a quantity into GHB for your personal use. The fact you stood to derive little or no benefit from the importation beyond this is relevant to your sentence as it reduces your moral culpability for your conduct considerably.
33I do, however, reject one explanation you and Ms Tran provided when interviewed by police, stating the GBL was to be used in the manufacture of perfume for Ms Tran. This explanation is entirely inconsistent with the evidence subsequently obtained by investigators from suppliers that the perfume was readily available at the time. As a purported explanation for the vials and other laboratory equipment, it is not plausible or consistent with the items found. For instance, heat and PH paper is not required to manufacture the perfume. I am satisfied the laboratory equipment was in your possession for the purpose of manufacturing GHB, albeit for your personal use only.
34Although yours was not sophisticated offending, you were clearly aware that the importation was not lawful, and you risked the prospect of significant penalties. In your email correspondence with 'Eric', it is clear that you asked for the name of the product to be changed to avoid detection. However, I note that you took no other steps to conceal your identity.
35I assess your offending as a lower-level example of an inherently serious offence.
36Ms Tran’s role in the importation was a limited and subsidiary one. It was she who suggested that GBL may be supplied out of China, leading to your research of this option. Ms Tran also researched the uses of GBL, including its use to create GHB to enhance sexual libido. It was Ms Tran who paid the amount of $2794.69 into the Western Union account, at your direction. Ms Tran played no further role in the importation.
Personal circumstances – s 16A(2)(m)
37I turn now to your personal circumstances.
38Mr McMurray, you were born in Cardiff, New South Wales, in October 1975 and are now 48 years of age. You were 42 at the time of the offending.
39You report a stable childhood, enjoying a close relationship with your parents and older brother. You attended primary school in Cardiff without any social or behavioural issues. You completed Year 12 in Newcastle and thereafter worked with your father in concreting until 1998.
40You completed a carpentry apprenticeship and obtained a Certificate 4 in building before moving to live in Sydney to work with a construction company, including work as a site supervisor on the Olympic Grounds in advance of the 2000 Sydney Olympics. You moved to Melbourne in 2002 to take up a position with ProBuild, where you worked until 2014. You then worked with a small construction company before joining Della Precast in October 2015 as its General Manager, where you were employed at the time of the offending in 2018. That business failed in March 2021. This was a cause of significant distress for you having been involved in negotiations to purchase the business.
41You then gained employment with another construction company, FDC, where you suffered hip injury following a workplace fall. In October 2023 you had hip replacement surgery, followed by another in January 2024. The cost of that surgery placed you under significant financial strain.
42You commenced your own business as a sole trader undertaking maintenance and servicing work recently.
43You have previously been married but your relationship ended after a year. You have no children. You have been in a relationship with Ms Ly Tran for the past eight years and live together in Rowville.
44Ms Carla Lechner, psychologist, assessed you for the purposes of the plea hearing. In her report dated 4 June 2024, Ms Lechner states you developed symptoms of depression around this time but considers these have now subsided. She is of the opinion you are prone to 'reactive depression' and would benefit from further psychological treatment to manage this.
45You have admitted a prior criminal history. Relevantly, you have a previous court appearance for possession and use of amphetamine for which you were fined, without conviction, on 15 June 2006. You were fined for driving related offending in 2007 and subsequent to this offending you were convicted on 21 December 2021, for possession of GHB, ecstasy, a further unnamed drug of dependence and possession of substances, material or equipment for trafficking in a drug of dependence. On that date you were fined, with conviction, an aggregate of $3,000.00.
46You report using ecstasy in your mid-20s on a weekly basis and have used GHB, amphetamines, including ice, and other illicit drugs recreationally.
47Ms Tran, you were born in Vietnam in October 1983 and are now 39 years old. You were 34 years old at the time of the offending.
48You migrated to Christchurch, New Zealand, with your family when you were six before relocating to Melbourne with your family in 1995 when you were 11 years old. You are now an Australian citizen.
49Your parents, who continue to live in Melbourne, remain supportive of you. Your father is now retired and your mother works in the family operated café.
50You completed Year 12 at Springvale Secondary College in 2000 and began a Bachelor of International Trade the following year. You ceased study a year later because of the travel involved to attend RMIT.
51Between 2002 and 2016 you worked in real estate, including as property manager with Barry Plant Real Estate in Bentleigh for six years. You then resigned to work for Della Precast with Mr McMurray from 2017. Since 2022 you have been working in the family café in Mulgrave five days a week.
52You have no prior criminal history but following this offending you were subsequently fined $400, without conviction, by the Magistrates Court on 21 December 2021 for possession of GHB, ecstasy and trenbolone.
53You report using ecstasy as a teenager, and then ecstasy, GHB and ice with your husband between 2017 and 2018. You state you have not used any form of illicit drugs since 2020, despite the subsequent court appearance for possession of illicit substances, including GHB and ecstasy in 2021.
54Psychologist, Mr Jeffrey Cummins, who assessed you on 29 August 2024, states in his report that you present with 'sufficient symptoms' to be diagnosed with depression of moderate severity, arising from these proceedings.
Contrition and Guilty plea – s 16A(2)(f) & (g)
55Your guilty plea is a highly relevant sentencing consideration. You both pleaded guilty to the offences for which you are to be sentenced following a final directions hearing in this court in February 2023 and a jury trial listed for that month was vacated. Although you both entered guilty pleas at a late stage in the proceedings, your pleas facilitated the course of justice and saved the court and the community the time and resources associated with a trial. The utility of your pleas is heightened in circumstances where you pleaded guilty at a time where there were still delays occasioned by the impact of the pandemic on the criminal justice system.
56Beyond the remorse inherent in your plea, you have both expressed regret for your conduct to Carla Lechner and Jeffrey Cummins during your psychological assessments.
General deterrence and denunciation – s 16A(2)(ja)
57With any offence involving the importation of a commercial quantity of a border- controlled substance, general deterrence and denunciation are sentencing considerations of great significance. The authorities make it clear that the rationale for this is because of the difficulty in detecting such offending and the significant harm to the community that flows from the importation of such substances into Australia.
58In this case the need for general deterrence and denunciation is moderated to some extent given the concession made by the prosecution that the GBL was not imported for a trafficking purpose. Appropriately, some moderation is required having regard to the rather unusual circumstances of this case.
59Nonetheless, the sentence I impose must operate to deter others from arranging to import large quantities of border-controlled substances for any reason, given the inherent seriousness of this offence.
Specific deterrence and prospects of rehabilitation, and delay (s 16A(2)(j) and (n))
60The context of your offending is relevant to my assessment of your prospects of rehabilitation and the related need for the sentence I impose to specifically deter you both from future offending.
61You report that you were in the process of purchasing the business interest in Della Precast from the owner and for that reason you, Ms Tran, had joined the business to support Mr McMurray in that process. When the transfer was due an issue arose about the surface irregularities in the concrete slabs with a customer. The owner, Mr Della-Bosca had given you, Mr McMurray, responsibility to resolve the issue. It was in response to this that you undertook research and discovered that GBL was an effective cleaner for the steel moulds. I accept there was a degree of financial and timing pressure that led you to resort to the illegal importation of the GBL to resolve this issue, however, your offending was a serious lapse in judgement.
62Notwithstanding your prior conviction for possession and use of amphetamines in 2006, you, Mr McMurray, had otherwise led a largely pro-social, law-abiding life with many years of employment in the construction industry. In the context of having committed this offence, in part to produce a quantity of GHB for personal use, it is of concern that you have subsequently been convicted for possession of GHB and other illicit substances in 2021.
63In a frank reference provided by your brother, Mr Brian McMurray, dated 26 February 2024, he states that he is acutely aware of your strengths and weaknesses, including poor decision-making and lapses in judgement. However, he speaks highly of your work ethic and the sacrifices you made to keep the Della Precast business afloat, devoting four years of your life to this endeavour. He says you are deeply embarrassed, apologetic and ashamed about your offending.
64You, Ms Tran, have no prior convictions, and given the outcome, were less involved in the drug possession charges for which you were fined without conviction in 2021. You have otherwise lived a law-abiding life, working in the real estate business for many years and more recently in your family-run café to assist with financial pressures after Mr McMurray ceased working. The character references provided on your behalf speak positively of you as a person with a strong work ethic, a commitment to your family and others. I assess you have very strong prospects of rehabilitation, and that specific deterrence has little, if any, role to play sentencing you, Ms Tran, for this offence.
65The lengthy delay associated with these proceedings is also relevant to sentence. This offending occurred in October 2018 and the search warrant was executed at your premises in November 2018, but the two of you were not charged until January 2020. The prosecution is unable to provide much explanation for this delay other than to note that the iPhones seized from your property were not analysed until June 2019. After January 2020 the matter was subject to multiple committal mentions and then directions hearings in this court, in part necessitated by funding issues and a change of legal representation for you, Ms Tran.
66As this chronology demonstrates, you now fall to be sentenced more than five years after you were interviewed by police in November 2018 and more than four years after you were charged in January 2020.
67In the recent case of DPP v Merryfull & Anor[2], the Court of Appeal summarised the import of delay as a factor in mitigation of sentence, stating as follows:
“It is beyond doubt that significant delay between the time an offender is charged and ultimately sentenced can be a powerful mitigating factor. There are two limbs to the consideration of such delay: unfairness and rehabilitation.
…
The unfairness limb concerns the anxiety caused by a charge hanging over an accused’s head. A report of a psychologist may satisfy the evidentiary requirement but ‘[t]here will also be cases where, depending on the duration, cause and other circumstances of the delay, a court may readily accept the delay caused anxiety to the offender without the need for supporting evidence.’
The rehabilitation limb concerns whether, during the period of delay, an accused made progress towards rehabilitation. There are two aspects to this limb: remorse and reform. The first requires evidence of acceptance of responsibility for the offending, acknowledgment of its wrongfulness and expression of contrition. The second requires evidence of the steps an offender has taken to reform. Such evidence might include obtaining counselling or other professional assistance, refraining from committing any further offences and contributions made to the community. Both remorse and reform must be demonstrated for a sentencing judge to give full weight to the limb. ‘Less than full weight will be accorded where reliance is placed merely on abstinence from further offending'.”
[2]DPP v Merryfull and Bloomfield [2023] VSCA 244 [44]-[46]
68In this case, I give full weight to the unfairness limb of delay for a number of reasons. First, the delay associated with these proceedings has undoubtedly been a source of anxiety and stress for you both with this serious charge hanging over your heads. In your case, Mr McMurray, Ms Lechner specifically states that the delay associated with the resolution of these charges has taken its toll on you financially and psychologically. This is a form of punishment in itself.
69As to your prospects of rehabilitation Mr McMurray, Ms Lechner assesses you with no current symptoms of any underlying psychological disorder and reports that you have no ongoing drug or other substance abuse problems. You have an extensive work history and the ongoing support of your partner and brother. Your subsequent conviction for drug possession offences causes me a level of concern but on balance I consider your overall prospects of rehabilitation to be positive. The need for the sentence I impose to specifically deter you is correspondingly reduced.
Comparative cases
70I have considered the cases to which I was referred by the prosecution, noting that comparable cases may serve to illustrate the possible range of available sentences. Each of the cases involved the importation of a commercial quantity of GHB. In the case of Maxwell[3], the Court of Appeal observed that the consistently lower sentences imposed reflect the enormous reward differential associated with GBL. As stated, there is no evidence that you imported GBL for a trafficking purpose or for financial reward.
[3]DPP (Cth) v Maxwell [2013] VSCA 50.
71Undeniably, the cases to which I was referred demonstrate that terms of imprisonment, ranging from four to six years, have been imposed on offenders where a commercial quantity of GBL is imported for a profit motive.
72The only case where there was no profit motive attached to the offending is that of R v Colledge[4], a decision from 2010. In that case the New South Wales Court of Criminal Appeal re-sentenced a 34-year-old offender to a $3,000 fine for importing 2,060 grams of GBL through an overseas consignment. In that case the offender incorrectly believed the drug was not illegal and had made no attempt to conceal his purchase which was for personal use. The offending was characterised as being at the very bottom of the scale of the offence. In contrast here, I note that the quantum imported, being 21.6 grams of GBL, was significantly higher and you were aware of the unlawfulness of your conduct.
[4]R v Colledge [2010] NSWCCA 302.
Submissions
73Both counsel appearing on your behalf submitted that all relevant sentencing considerations could be met by the imposition of appropriately structured community correction orders.
74In contrast, the prosecution submissions highlight the inherent seriousness of the offence, as signalled by the maximum penalty of life imprisonment, and submitted that the offending warrants the imposition of a sentence of immediate imprisonment with the fixing of a recognisance release order for both of you.
Consideration
75I have given careful consideration to the sentencing submissions made by all parties.
76Ultimately, I have concluded that a community correction order would not adequately reflect the gravity of the offending, noting the quantity of GBL imported in the knowledge it was a controlled substance. Parliament has unmistakably indicated the inherent gravity of conduct in importing a commercial quantity of a border-controlled substance, irrespective of the motivation to do so, by fixing a maximum penalty of life imprisonment.
77However, I do not accept that a term of immediate imprisonment is warranted in Ms Tran’s case, given her subsidiary role in the offending conduct and other matters in mitigation. In so concluding, I have had regard to the need to impose a sentence of a severity that is appropriate to all the circumstances of the case, including the sentencing principle of parsimony and proportionality.
78In contrast, in your case Mr McMurray, I consider a sentence involving an immediate term of imprisonment, subject to a recognisance release order, is warranted. I have formed this conclusion balancing the key role you played in importing the GBL in this quantity, aware it was wrong, whilst giving appropriate weight to the matters in mitigation of sentence, including the utility of your plea, favourable prospects of rehabilitation and the impact of the delay in these proceedings. As I stated, your motivation for engaging in this offending places your conduct in a less egregious category for this type of offending, hence the availability of a recognisance release order.
Sentence
79Balancing the matters to which I have referred, while guided by the maximum penalty for the offence, I sentence you as follows:
80Mr McMurray, if you could please stand.
81On Charge 1, importing a commercial quantity of a border-controlled drug, you are convicted and sentenced to 18 months’ imprisonment.
82Pursuant to subsection 20(1)(b) of the Crimes Act 1914 (Cth) I direct that you be released after serving six months of the term of imprisonment imposed on Charge 1, upon you giving security by way of recognisance of $1,000 on the condition that you are of good behaviour for a period of two years. If you are of good behaviour for that period, there will be no further punishment.
83Please have a seat.
84Ms Tran, if you could please stand.
85On Charge 2, aiding, abetting, counselling or procuring the importation of a commercial quantity of a border-controlled drug, you are convicted and sentenced to 12 months’ imprisonment. I order that you be released immediately upon giving security by way of recognisance of $1,000 on condition that you are of good behaviour for a period of 18 months. If you are of good behaviour for that period, there will be no further punishment.
86Please have a seat.
87If you are both not of good behaviour for the period of the recognisance, you may be brought back before the court. Depending on the nature and seriousness of any transgression, the court may either take no further action, impose a fine, extend the period of your good behaviour, impose a different penalty or revoke the recognisance release order, resulting in your imprisonment for the balance of your sentence.
88Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your guilty pleas the sentence I would otherwise have imposed on you, Mr McMurray, is a sentence of three years' imprisonment with a non-parole period of two years, and on you, Ms Tran, a sentence of 18 months’ imprisonment subject to a recognisance release order following a period of immediate imprisonment.
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