Director of Public Prosecutions v MA
[2019] VCC 301
•8 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-02110
| THE QUEEN |
| v |
| BRUCE MA |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 March 2019 |
| DATE OF SENTENCE: | 8 March 2019 |
| CASE MAY BE CITED AS: | DPP v Ma |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 301 |
REASONS FOR SENTENCE
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Catchwords: Importation of commercial quantity border controlled drug. GBL. For personal use. Director accepts no commerciality. Just over CQ threshold.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth of Australia | Mr J Grant | Commonwealth Direction or Public Prosecutions |
| For the Accused | Ms S Lacy | Doogue + George Defence Lawyers |
HIS HONOUR:
1Bruce Ma, you have pleaded guilty to a single charge on the indictment that has been filed before me yesterday morning. The charge is one of importing a commercial quantity of a border-controlled drug. That drug was a drug referred to as gamma-butyrolactone, but for ease of reference, I shall refer to it as GBL in the balance of these reasons.
2The commercial quantity is 1 kilogram. You imported just a small quantity above that commercial quantity threshold.
3The maximum penalty, as you heard, is life imprisonment and/or a vast fine, or both.
4Of course, the offence of importing a commercial quantity of a border-controlled drug is, obviously enough, a serious offence. The authorities in this area confirm that view, but having said that, the offence can, as we know, cover a vast array of conduct, a large number of differing drugs, and massive differentials in terms of the quantity of a given drug.
5The maximum penalty, though, applies as the maximum independent of the actual factual setting. So it is, then, that someone involved in a large-scale commercial operation - for instance, someone importing by ship 10 tonnes of pure cocaine - would face the same maximum penalty of someone importing a gram above the commercial quantity threshold of that same drug.
6Obviously enough then, an assessment of the individual facts is a critical path to the imposition of penalty. That is, obviously because - though the maximum is the maximum, what a judge is required to do is to pass a sentence of a severity appropriate in all the circumstances of the offence. It is not one-size-fits-all by virtue of the one maximum penalty applying. It never has been and hopefully, it never will be.
Facts
7I turn then very briefly to the facts. There is a short agreed summary before me. It is marked as Exhibit A. I do not think there is any great need for me to go into enormous detail in these, my reasons, and that is because I will sentence in accordance with that agreed summary.
8In mid-2017, you did some internet searches on the purchase of this drug, GBL. You ordered a litre. That was mislabelled, it would seem, by the shippers, although it ultimately did arrive in Australia. That, as we know, is not the subject of this charge. It was before me really only as to the context.
9Because when that quantity did not arrive, you contacted the shippers and advised them of the non-arrival of the parcel. You then had the order re-sent, and that is what arrived in this country from Lithuania on 16 September 2017, and the indictment relates to that particular quantity. That is what is the subject of this importation.
10That bottle, or parcel, was intercepted. It was tested. It was found to contain this drug, and it was then held. There was no controlled delivery, in this case, although you continued to make enquiries in terms of the tracking and the enquiries of the company involved in the movement of it.
11Ultimately, a warrant was executed at your house. That was on 19 December 2017. The interview was conducted on that same day, although the transcript bears the wrong date. I have read that interview in detail. You were fully cooperative with the police. You made full admissions.
12As to what was imported, and that is what I am dealing with, the drug GBL had a pure weight of 1,093.4 grams of pure GBL. And the Commonwealth deals with pure weights. So you were 93.4 grams above the commercial quantity threshold. There would be very different considerations applying and a different maximum had you fallen below that quantity and had been dealing with a marketable quantity.
13This drug (GBL) can in fact be imported by those with an appropriate permit, as it has a number of lawful uses. A cleaning agent is one of those uses. Drinking it is not one of them, and of course, you had no permit. It is very freely available on the internet, as disclosed by your conduct. It is easily ordered, easily imported, and it can be done so with a click of a button. As I understand it, it produces that same effect of that produced by GHB. There is reference to your previous use of GHB in one of the expert reports.
14So it is, then, that people who crave that euphoric effect may want that drug or one with similar effects courtesy of either the nature of the drug or the metabolisation process. So it is that we have 1,4-Butanediol, we have GBL, we have GHB - drugs that really had scarcely been heard of 20 years ago.
The actual precise chemical makeup is not the concern to the user. What is sought is the effect, and that is what you were seeking to obtain by bringing in this drug.15Frankly, it is incredible, really, that you, obviously a highly intelligent man and one who, in your biomed training, must have had some exposure to chemistry and the like - it is incredible that you, with that sort of background behind you, would consider introducing what essentially is a cleaning solvent into your system. But that is what you had in mind, and that is what you have done in the past. It is more incredible, though, that you would import it.
16So much, then, for my summary of the summary. And that is all it is. The full summary is agreed. I do not move beyond that agreed statement.
17I should add, though, I have not mentioned it precisely, but you used your own name. You, it would seem, used or supplied your correct phone number to those who were shipping the drug. To say it was unsophisticated would be something of an understatement. It was unsophisticated, it was naïve, but in doing what you did, you unmistakably have committed the crime of importing a commercial quantity of this drug into this country.
Mitigation
18Your counsel, Ms Lacy, conducted an excellent plea on your behalf and she prepared equally excellent written submissions as well. I am not going to work my way, in these reasons, through everything that she either said in oral submissions or wrote in her written submissions.
19Primarily, as you know, she relied upon:
· your guilty plea,
· its early stage,
· your cooperation with the police, including the making of the admissions that you made on interview.
· She relied upon the presence of what she said was significant remorse, or contrition.
· She took me to what was said to be your excellent background, including, of course, a lack of relevant prior history.
· She raised the spectre of some degree of impact on your professional life as an optometrist. She was not suggesting there was any sort of imminent loss of rights to practice or anything like that, but there would likely be a review before a panel and possibly with the outcome of there being conditions placed on your registration.
· A significant portion - the lion's share of the plea, really - was devoted to the context of this offending and the way in which the court should characterise its level of seriousness. And in particular, its lack of aggravating features in the way that it had been committed, the lack of sophistication, the lack of any profit motive or desire or hope to distribute the drug that was imported.
20So it was, then, this concept of the lack of commerciality was very prominent in the plea. And that is understandable.
21The drug itself, she argued, was a low-value drug. And decisively, she argued, it was imported here for personal use. And in terms of quantity, it being a quantity-based regime, this was simply a small tick over the commercial quantity threshold.
22She called a close friend, Dr Nguyen, a friend from your student days and since. She relied upon that evidence and also the two expert reports, and a handful of character references from those who know you, including your sister. There was also a newspaper article that pertained to, I think, the citizenship ceremony for your parents, purely to flesh out some of the personal background.
23Ms Lacy was arguing that it was open for this court, sentencing an offender in relation to this charge of importing a commercial quantity of a border-controlled substance, to impose a fine. That was her principal submission, but of course, the fallback was a disposition that did not involve your immediate imprisonment. That was the hope.
Prosecution
24The prosecutor, Mr Grant, who appeared on behalf of the Commonwealth Director, had also made written submissions on sentence that are likewise there attached as part of the materials and marked as Exhibit B. Again, there's no utility in restating all of those submissions.
25The Commonwealth Director, as you know, is calling for an immediate term of imprisonment in this case. Mr Grant, who appears on behalf of the Director, had prepared those detailed submissions and they were not controversial in terms of setting out many clear enough legal principles from the many cases that exist in this area and in higher courts. He dealt with aspects of your role.
26The DPP make a significant concession in this case; that your motivation was to bring in this substance for personal use. Now, that is a particularly important consideration in my task of assessing the nature and the seriousness and gravity of this offence. It seems to me at least that it sets it apart significantly from the vast majority of importations in a commercial quantity of a border-controlled drug. There is very often an aspect of commerciality at play. Not so here, and that again is critical to my task, and I cannot lose sight of that.
27The prosecutor took me to a chart of some other sentences that have been imposed for commercial quantity importations of this very drug. And there was also a selection of those cases for me to read, and I have read them in full.
Ms Lacy made some submissions as to some of those cases, and comparing and contrasting your particular position with some of those others previously sentenced by other courts.28I must say, I am not a great believer of the utility of that sort of advocacy.
At the end of the day, of course, what I am required to do, whatever may have happened in other cases, is to pass an appropriate sentence in your case.29At one point, indeed, maybe more than one point in dealing with the cases, she described one or other as being an "authority." Well, the case of Maxwell [2013] VSCA 50, for instance, would have that status in terms of the some of the legal principles there, what is important in this case. But the end outcome, the sentencing outcome of that case, is no binding precedent or authority at all and says nothing in terms of the sentence required in this case.
30She selected the least serious of those cases, at least in terms of outcome. That is again understandable, but that is the case of Colledge [2010] NSWCCA 302 that was dealt with up in New South Wales. For a start, it was dealt with back in 2010, a long, long time ago. And it was the subject of an appeal against the actual decision of the judge at first instance.
31And it is like comparing apples and oranges. Because in that case, demonstrably, it was less serious even though there was a greater quantity of the drug and even though there was some possibility of sharing it, as he, Colledge, believed that there was nothing unlawful at all in terms of the drug being brought into this country.
32There was a case also of Wang [2018] VCC, an unreported decision of one of my brother Judges. Much closer factually, actually, to this one, to your case, where a highly-educated person has brought in a very similar quantity of this drug and he received a 20-month term. He had done 17 days, and he was released forthwith. But again, though, that does not provide the answer to my sentencing exercise here.
33The reason that this sort of approach - that is, of going to other cases - is, in my view, of such limited assistance is that I have to deal with your case, a case of someone acting as you were acting in the knowledge of the illegality of what you were doing, bringing in what you were bringing in, but with your own personal motivation. It stands on its own, your case, as most actually do.
34So none of the cases are on all fours. They virtually never are. And quite aside from that, there is no one correct sentence. In those various other cases, there were particular sentences ultimately imposed, either in the appellate jurisdiction or otherwise. But another judge might equally have imposed a different sentence and been entirely correct. That is because there is a range of sentences available to a judge in any given case.
35So it is not my task to look at other sentencing outcomes, and then compare and contrast, and then, by a series of additions or subtractions from some figure in one or the other cases, reach some particular sentence in yours. That is not my task at all. What I have to do is to impose a sentence appropriate to the severity, in all the circumstances, of this case.
36Of course, consistency of sentencing is important. I am not saying otherwise, but there are never identical cases. There are not before me. There is never one correct sentence for a particular crime. What I have got to do is deal with you for your crime, and I am well familiar with your crime. I am well familiar with all of your personal circumstances.
Background
37I turn, then, to your personal circumstances. You are, after all, the person I am sentencing, so I need to know who I am sentencing. And I do. I am passing a sentence in relation to a person who is, I think, otherwise of very good character. Excellent character, really.
38You are 34 years of age, born in November 1984 up in Queensland. You have no relevant criminal history at all. The two matters on the criminal history occurred when you were young. They arose out of the same criminality in terms of the use of the computer. They were dealt with at different occasions, owing to the receipt by you of property the subject of the second of those charges, but they have no relevance at all, in my assessment, to my task. None.
39I am not going to restate your background in full. I have been told a fair bit about it. There is no issue with it. It is not controversial, and I accept that personal family background. As I say, it is set out in some detail in the written submissions. There were further oral submissions as to it, and also the reports placed before me.
40You are the youngest of three children. You were born to Chinese immigrants. Your parents were both teachers in their homeland. Your dad fled the regime and came to Australia in the mid-70s, your mother, I think, in 1980, and they married when she arrived.
41There is no reason for me to think that your parents were other than very hard-working, industrious people. They probably worked at a level below that where they had been working, and probably a product of immigrating to a new country. They had been teachers in China and they became business owners in Queensland, running a Chinese takeaway food outlet.
42As I have said, you are one of three children. You have got a couple of sisters. One has been in court, one has written an excellent reference for you. And all of the three children have achieved well in their own careers, it would seem.
43It is plain that you are very intelligent. You must have excelled at school.
You then went on to university, you did a Bachelor of Science. Again, I repeat: extraordinary that you would have that sort of grounding, that sort of experience, and yet be ingesting these extraordinary chemicals that you proposed to use. Anyway, a Bachelor of Science up at Queensland, then you moved into the biomed course up at the same university, then you took it to the next step by doing the optometry course down at Melbourne University.44You have had an excellent work history prior to graduation, and as I perceive it, full employment since. So upon your graduation in 2015, you completed the doctorate. You have had full employment. You worked initially, as I understand it, up in Ararat.
45You married in that same year, in 2016, but it was an unusual setting. Your wife was living in Melbourne at one point, you were up in Ararat until she joined you later in that same year. The decision had been taken, obviously, in the leadup to mid-2017, late April at the latest, obviously, that you were going to move back to Melbourne. And you did.
46Your wife gave birth to your daughter in July of that same year, and she is now 20 months of age. There were strains in your marriage and in your life in that timeframe. That much is plain enough - it is spelt out in the report of
Ms Hendricks. And you came back to Melbourne; that is where you were living at the time that you chose to commit this serious offence. Whatever may have occurred in the past, you remain together now and she is working as a dentist, you are working as an optometrist.47You were a person who, at the time of the offence, was in my judgment of excellent character, one with no relevant prior history and one who was forging a good career. Really, you would be the last person one would expect to commit an offence such as this.
Expert Reports
48I have the reports of Dr Barth and Ms Hendricks. Dr Barth saw you to provide a court report and has to be seen in that light. And that was in February 2019 he saw you, so what he does, he receives from you an account of what you say you have done and what has occurred in your life. Very often, those accounts are not particularly reliable. There is a self-interest from those who speak to psychologists in that sort of setting. After all, the report is being obtained to come to court.
49But here, I have Ms Hendricks' report, and she saw you in the timeframe - that is, from late March 2017 to April 2017. She was based up in Ararat. She has had five consultations with you. So that is you getting referred to a clinical psychologist, not for some flippant reason. This is not some invented account. You are seeing her because you needed to, because you perceived that you had serious enough issues in your life to justify going and seeing a clinical psychologist.
50And that all pre-dates this offending. And she describes those issues, she describes your account - so not some account after the event, but what you are consulting her for. And of course, then, that obviously supports the account that you then give after the offence to Dr Barth.
51So I act on each of those reports. There is no reason not to. I act on that material, and each describe that aspect of drug use, the reasons for drug use, the relationship strains in place. Ms Hendricks speaks of your anxiety and your depression and the reasons for that when she saw you in the lead-up towards the end of April 2017. And Dr Barth speaks of your treatment needs into the future.
52I want to deal, then, with some of the matters raised in mitigation. And I might chop and change in the course of these reasons, and perhaps apply terms that perhaps are more akin to terms used in a State sentencing exercise rather than the actual particular wording employed in the Commonwealth Act. But very much the same principles are at play. I want to make that clear.
Guilty Plea
53You pleaded guilty, and that is a significant aspect here. It is mitigatory.
It obviously is. You have done that at the earliest stage. Earlier still, of course, you have made full admissions and you have cooperated fully with the police. In these ways, you have facilitated the course of justice.54You, really, having committed this extraordinary offence - and it was a terrible decision to have done it, obviously - you could not have done more to bring it to an end and to take responsibility. That is what you have done.
55There is a utilitarian benefit applying in doing so; that is to say, you have pleaded guilty, you have saved the time and effort and expense associated with the conduct of a committal and then a trial up in this court. You have taken swift responsibility for your criminal act, and I take this all into account as I must, including, of course, the extent of your cooperation with the police and the admissions that you have made.
56You have facilitated the course of justice, and all these things merit a sizable recognition in the sentencing process. And hence, obviously, a reduction - that is the law.
Contrition/Remorse
57Are you contrite? Are you remorseful? Why on Earth would you not be?
But quite aside from that, I have your early plea, and that ordinarily would be indicative of some remorse. But I have also, independent of your guilty plea and the early nature of that plea, the admissions that you made and other material in the documents placed before me that speak of your high level of contrition for your criminal conduct.58So I take that into account in mitigation. And I have made it plain a moment ago, but I am not going to pay weight to the reference in the CCO assessment report of the struggle to take responsibility and the limited insight. You have taken the swiftest responsibility open and made full admissions, so I find that you are contrite. I take that into account in mitigation as well.
59I have already commented on your otherwise excellent character, there being no relevant priors.
Rehabilitation
60What, then, of your prospects of rehabilitation? A court is always engaged in that process and it is often not that easy, actually. There are often things that are significant intrusions onto a person's prospects into the future, such as significant mental health issues or psychiatric issues, or drug and substance issues.
61In a way, it might seem quaint to be talking of the prospects of rehabilitation of someone who I have already judged to be of excellent character. But of course, Dr Barth speaks of the need for you to do some pretty significant work in some areas into the future. I have not mentioned in my reasons up to this point, the fact that you saw one of his associates on a number of occasions in various sessions before you desisted.
62It is an extraordinary offence that you have committed. I seriously doubt that you would have considered doing what you did had you actually been fixed with some knowledge of the offence, and the provisions, and the code, and the maximum penalty at play. You knew what you were doing was wrong.
You knew the drug was illegal. I am confident if you had a copy of the Criminal Code in your hands and looked at the relevant provisions, you would not have considered doing what you did. But that is not a defence to what you did. It is an offence that you chose to commit. You had the opportunities to think long and hard about that, including, of course, that re-ordering process.63What is your risk of reoffending in the same way, though? I would say it is next to nil. I think your prospects of rehabilitation are excellent, as far as I can determine here. And that is because they always have been excellent prospects. You are bright, you are employed, you are married, you have a child, you have a good career, you have a unit to live in.
64You have no reason why, after this dip represented by this offending, that you cannot continue in that upward trajectory in your life and in your career.
So I think you have got excellent prospects into the future and a very much minimal risk of any sort of reoffending, especially in this way.
Professional Impact
65I suppose there is one unknown issue, though, in terms of your future prospects, and that is the professional consequences that are to be suffered by you, if any. I have been told that you have written to AHPRA and there no doubt will be some panel held, some investigation as to the potential ramifications of this offending upon your career.
66This sentencing outcome today would also have a role to play, no doubt, but there is a level of speculation at this point. I have got no idea what will occur in the future in terms of that panel and that investigation.
67It is not being suggested by your counsel that your career is in some way under threat. Possibly, there might be conditions attached to your registration. Maybe there will be publication of that outcome. That would be unpleasant, no doubt. It is hardly a feather in your cap, both in your current job or in future job applications.
68So no doubt you have concerns about all of that and where it is all going to lead, and the possible impact upon your career down the track. I take that into account as far as I am able to, but as I say, it is not a clear-cut case, as sometimes is the position, where one can know that a career will be actually forfeited. That is not the nature of these submissions at all.
69And for what it is worth, although it is nothing to do with me, there is nothing in your criminality in this case - given the concession made by the prosecution as to personal use being the motivating factor here, there is nothing here that strikes me as some mark against your fitness to practice as an optometrist. That is to say, this was not a commercial importation. There is no profit, there is no criminal syndicate or gang. It is you, ordering what you wanted to actually use.
70If there is any concern to be held, maybe it is more connected up to the fact of your being a person who has used drugs and the need then to make allowances for that in the extent to which your practice is monitored. But anyway, as I say, these are not matters for me to actually determine. A panel will, down the track.
Nature of offence
71As to the assessment of the character of this offence that I have to deal with, well, it seems to me at least that it must surely fall at the low level in terms of offence seriousness. I am not saying it is not a serious offence. It is an offence of importing a commercial quantity of a border-controlled drug. It has a maximum of life imprisonment.
72I cannot ignore that, but where does this particular instant offence sit on the spectrum of offence seriousness? That is the critical thing for me to determine. As to your role, the Crown essentially say: "This is you. It is you doing it. There is no-one else. You were it. You were not an underling, you were not under pressure in some hierarchy. It was you, researching. It was you deciding to buy. It was you deciding to import. No-one else. It was your venture entirely.”
73All of that is true, plainly. But equally plainly, in this day and age, it does not take much effort to do all of those things. The lack of those other things, the lack of hierarchy, the lack of criminal structure - well, that really points to the absence of what are very common aggravating features.
74That is because more often than not - indeed, I will go a bit further and say the vast majority of importations of a commercial quantity of a border-controlled drug have an unmistakable and clear commercial setting; that is, a vast profit driving the decision to import the drug - ordinarily, powders - into this country. There is a structure. There is a hierarchy. There are criminal associates in Australia and overseas. There is distribution in mind. There is sale in mind, and there is a high-value product that comes into the country, destined to be released at this end onto a market with untold damage.
75That is not what I am dealing with at all, and that is because there is no profit motive here. The Crown accept personal use, that that is the motivation for this importation. That the drug itself is also a drug of a very low value; we can see that in terms of the purchase price.
76This is a quantitative regime that I am dealing with. I am not here as judge to be making assessments of the dangerousness, or the differences in the effect or dangerousness of drugs that are prohibited from being brought into the country. I cannot make that judgment. I am not allowed to.
77Quantity is always a significant consideration. It is not the only matter for a court to consider, but is very often, the only differentiation between one importation of a commercial quantity and another - that is, the multiple of commercial quantities engaged in. Here we have, as I have said, a tick over the commercial quantity. So it is about as low as you could go.
78We have value. That is a different issue, and that is one I am entitled to have regard to. In a way, though, as I say, it is really academic to talk of value, as it is sometimes referred to, on a wholesale basis or on a street level. There are certain calculations that have been provided to other courts as are referenced in the other materials placed before me. It is obviously a low-value drug, even when sale is contemplated.
79Here, of course, there is no selling it. There is no profit motive. There is no intention to distribute. It is you and the drug. You intended to use it, and the Crown accept that. That is not me going out on a limb and making that call. That is the Crown, who bring this prosecution, conceding that that is the motivation.
80So we can contrast this case with many others where a commercial quantity - necessarily, of course - has come into the country and what has come into the country is a massively valuable product, and one that is bound for a market in this country, one where profit is the motive driving all those engaged in the importation to take the risk, one where such drugs with those high values are being introduced into the community with no doubt untold damage.
81That is not the position here at all. It is equally plain from the chart of sentences that have been provided to me, including the particular case of Maxwell, that the value of a drug can still be a significant factor. The sentencing outcomes for importation of a commercial quantity of this particular drug GBL sit far, far below sentencing outcomes for the more notorious powder drugs such as heroin and cocaine.
82Not because a court is making that prohibited consideration of the relative harmfulness of particular drugs. So it is not a differential made in terms of harmfulness. The differences arise because of the enormous reward differentials as between particular drugs.
83The extent to which financial reward is the driver is significantly a matter affecting the judgment of the seriousness of the offending and the level of culpability. The authorities, including Maxwell, make it plain that there is a material reduction in culpability where financial reward is either relatively small or even non-existent.
84This reduction in culpability is a matter in mitigation, and it can be established by an accused coming before the court, demonstrating on the balance of probabilities that he or she stood to derive little or no profit. Here, as I say, it is conceded by the prosecution that that is the position. So it is a commercial quantity importation, but one with no commercial element at all. You have got a commercial quantity, but no commerciality.
85And so there can be a significant reduction in the weight to be given to general deterrence and specific deterrence. There is no profit. There is no anticipated profit. There is no profiteering. There is no need to deter other profiteers.
That is not what we are dealing with here. There is no risk of further offences arising in this country arising from the distribution of the imported drug.86One of the reasons such a significant penalty is at play in terms of this particular offence set out in the Criminal Code - it obviously represents a legislative intention to visit very heavy punishment upon drug profiteers, and to cause like-minded people in the future to engage in this process of weighing up the potential financial rewards as against the risk of severe punishment should they be caught.
87So that consideration spoken of in the various authorities, including those referred to in the decisions, in the prosecution of Phommalysack, those considerations - they have no role to play in this case. We are not dealing with profiteers or profit or distribution, and therefore there can, I think, be significant reduction in the weight to be given to general deterrence here.
88So the nature and the circumstances of the offence - they are obviously something I am required to consider. How else can I sentence you? And they are set out specifically in the relevant provision of the Commonwealth Crimes Act. It is a touch over the commercial quantity, not a multiple of two or three or a thousand. There is no commerciality at all; that is, no profit motive at all, no intention to distribute.
89It is coming in for you, for personal use, and that is accepted. It is coming in in such a way that there is just a total lack of sophistication. It is in your own name and it has got your own phone number. And it has been brought in by a man of, in my judgment, otherwise excellent character with no relevant prior history, one who has pleaded guilty at the first available opportunity and who is demonstrating significant contrition, one who has made full admissions, one who, in my judgment, has excellent prospects of rehabilitation and a minimal risk of ever reoffending in this same way.
90What, then, is the appropriate sentence in this case? Prison is a disposition of last resort - s.17A of the Commonwealth Crimes Act tells me so. This is a low-level example of an offence of importing a commercial quantity of a border-controlled drug. So very significant reduction of the weight to be given to general deterrence, given the Maxwell factors that I have identified already in these reasons.
91I cannot ignore general deterrence, though. You and others referred to in the many other sentencing cases that have been drawn to my attention - you demonstrate how easy it is to bring into this country an illegal drug. Not every parcel can be screened. There is no need for a structure, there is no need for a gang, there is no need for assistance. You need a computer, or probably even a smartphone, and then on a click of a button the importation is up and running.
92So self-evidently, there is a need to deter others from conduct such as this. There is an ever-expanding range of drugs available in the community, and we have now these liquids with this euphoric effect that you were craving, be it butanediol or GHB or GBL. GBL obviously has got some currency in this country. You wanted it. You wanted to use it, not to clean the rims of your tyres but to ingest, and others obviously do as well as we can see from the cases
I have been referred to.93So even those considering importing this substance for personal use - well, they must be sent a clear message as well. It is not some minor offence. I make that very plain. But I have to make some assessment as to where you fall on the spectrum of offence seriousness of the offence of committing a commercial quantity importation, and I think it is on the very low level.
94Specific deterrence - that is, the need to deter you - I think that is very much achieved here. I would be very much surprised if you ever come back to a criminal court again. I hold very positive views as to your prospects of rehabilitation, as to your having a very low risk indeed of reoffending, almost non-existent in terms of this same style of offending. So I think almost no weight can be given to specific deterrence.
95There is obviously also, I think, a plain reduction in the extent of the weight to give to punishment and denunciation. I have still got to punish you. You know that. I have got to do it appropriately to the severity of the offending.
96So I take into account the matters germane to the exercise of my discretion as set out in s.16A(1)(2) of the Commonwealth Crimes Act. As I have said, I am required - there are different terms employed in the Act itself, but what it boils down to is, I am required to pass a proportionate sentence. As I say, s.16A(1) says: "of a severity appropriate in all the circumstances of the case."
97One of the circumstances of the case, of course, is that you are before the court on a commercial quantity importation. I have got to take into account the maximum penalty, and it is a high one. It is the highest known to our law. But I cannot be swamped by a pure consideration of that maximum penalty and have that lead to a lesser consideration of some of the other factors at play here. Because what I have got to do is I have got to actually consider the factual setting and all the various personal circumstances before me, and this is a most unusual setting.
98The prosecution say that I am required to lock you up in the circumstances. They are not putting a submission as to range, but they are suggesting that is open in the circumstances for me to impose a sentence that would permit the release on a recognisance release order. That means, it is a sentence of less than three years.
99The defence, Ms Lacy, on your behalf, suggest I should impose a fine.
They are submissions made by counsel. I am not bound by either of those.
Of course, I take them into account but I have got to reach my own view as to penalty, and their arguments as to penalty are not binding upon me.100But it is a low-level example of a serious offence for the various reasons I have detailed, the matters that are so plainly spelled out in that decision of Maxwell to which I have been referred. I do not believe for one moment that a fine, standing alone, could possibly be an appropriate disposition in this case.
101I put the rhetorical question, though, to the prosecutor in terms of the disposition they were urging upon the court being an immediate term. I said that if the outcome in this case was an immediate term of imprisonment, it was hard, really, to imagine any case of commercial quantity importation where there could be an avoidance of that outcome. And that cannot be the position.
102It is not a one-size-fits-all. I am required to pass an appropriate sentence in the circumstances of this case.
103I have had you assessed for suitability for a community corrections order. I told you not to take any comfort from that. I meant what I said, not to take any comfort from the fact that I was calling for the assessment or the fact that I was admitting you the bail. I wanted to get that report, I wanted to view the material, which I have viewed again overnight.
104Consistency of sentencing is important. I have said as much. The closest comparative case, at least before me, and that is all it is, is not an authority for anything. It is simply another instance of another judge passing another sentence, but Wang has some very strong parallels.
105It is a decision of a single judge, passing sentence. It is not of great value to me, but there were similar amounts - very similar, actually. In that case,
I think, there was some possibility of sharing of the product with others. But not an authority as to what I have to do in your case. Mr Wang got 20 months' imprisonment. He had done 17 days already, and was released pursuant to a recognisance release order on the day that that sentence was imposed.106That being said, a prison disposition in any case is a disposition of last resort; that is, imposing a term of imprisonment - it is a disposition of last resort. I have got to be satisfied that there is no other penalty or sentence that is appropriate in all the circumstances of this case. If I am satisfied that there is some other disposition that is open, a non-custodial disposition, then that is the direction
I have to head, irrespective of what another judge has done in another case.107And in this case, I am not satisfied that prison is the only option. Even prison with an immediate release on a recognisance. I believe that it is in fact open to impose a lesser penalty, and that is what I am going to do.
108I want to make very plain, though I think the reasons to date will make this clear enough: if there was an aspect at all of profit, a profit motive here, or a larger quantity of the drug implying such an anticipated profit, I would be immediately locking you up today. It would not be a matter of an immediate recognisance release. I would sentence you to a term of imprisonment and release you sometime down the track.
109But that is not the position, and the Crown tell me that is not. And I act on what is a very important Crown concession in this case as something that gives rise to, I think, a significant reduction in culpability, and therefore, obviously, must result in a significant reduction in penalty. So it leads me, ultimately, then, to reject their sentencing submission in terms of prison being the only option.
I do not think it is.110So I am going to release you on a community corrections order.
Explanation of Order
111You are a stranger to the courts, really. Your only experience of them was many years ago. And you had probation, you had community service as well. So you have got a little bit of an idea of what I am about to tell you, but you need to listen pretty carefully. You breach this order at your own peril. I am going to convict you, obviously. I have no option but to convict you. Even if
I had an option, I would.112I am convicting you of this charge of importing a commercial quantity of this border-controlled drug, and I am going to admit you to a two-year community corrections order.
113All right? So it commences today. It finishes then on 7 March 2021. You will need to attend at the Sunshine Community Corrections Services at the address given on the document. You will get a copy of this. It is at Foundry Road in Sunshine.
114Let me see, I do not think there was an appointment time. Anyway, it is within - I am just not following from this whether you have been provided with a particular appointment time, Mr Ma. Do you know if you have or not?
115OFFENDER: Yes, I have, Your Honour. It's on Monday, I believe. On Mondays at two.
116HIS HONOUR: Two o'clock. Anyway, that is within two working days. So you do not need to get down there today, but you do need to get down there on Monday. And you believe you have got that as a specified appointment.
So that is where you go, but as I say, it is a condition that you attend within two clear working days.117Now, these orders, as I think you know - they have been explained to you,
I think, broadly, and you have signed a document indicating you understand them. But it does not relieve me of the need to explain them to you, and I do not want anyone ever coming back in breach saying "I did not know what could happen." You will know, because I am telling you. I do not think I will ever see you again, actually.118But these CCO’s have got mandatory terms. They apply to every person who is placed on an order. I have got no discretion, so they apply to you. A lot of people have massive difficulties just with these mandatory terms, but a lot of people sitting where you sit have had very different lives from the one that you had and have no order, no stability, no employment. Nothing, actually. These should not concern you at all. You should have no problem complying with them.
119The first thing is, you must not commit another offence for which you could be imprisoned during the time the order was in force. Well, you stay out of trouble. You have done that virtually your whole life. It will not be an issue. But if you breach the criminal law with an offence punishable by imprisonment, you are back in front of this court.
120You have got to comply with any obligation under s.17 of the sentencing regulations. What is that all about? You have got to turn up in a totally fit state to do anything under the order, whether it be work or assessment or treatment. You have got to, I think, have a photograph taken for record-keeping purposes as well.
121You have to report to and receive visits as directed. You have got to, as I say, report within two clear working days of this order starting. And you have got to let them know within two clear working days of you changing any address, your address or job. You are not allowed to leave Victoria, and that is without first getting permission to do so from the Secretary, and you must obey all their lawful instructions.
122Now, they are pretty straightforward and they pose enormous problems to a lot of people who get placed on these orders. They should not cause you a concern in the world. You should be able to comply with those, because that is, after all, the sort of life you have been leading. You have structure in your life, you are a very intelligent man, and it should not be an issue.
123That is not to say that you will not be given permission, if you have got some particular reason to leave the State. You might have a trip or a holiday or something like that. Just raise it, and they will probably give you permission. But if you just get up and do what some people do, get up and leave - well, you will find yourself in breach.
124As I say, there would be many people who are put on these orders, the very fact of living a month without committing an offence is a real challenge. It will not be a challenge for you.
125So they are the mandatory terms. Breach any of those, you breach the order.
126Then there are the tailored condition. The very fact of being on the order, to some extent, is punitive. There is no question about that. You will be on it for two years. You are going to be doing some unpaid work; that is unmistakably punitive. I am going to keep that to a relatively low number of hours.
127It will not be pleasant. You will not enjoy it. There will be things you would rather be doing at the time. So be it. It is not meant to be pleasant. It is meant to be punishment, and it will be 200 hours of unpaid work you will need to do over the period of this order. You have got two years to do it, but get it done. Get it done early, and get it behind you.
128Then there are treatment and rehabilitation conditions. I am rather surprised in terms of the reference in the report to the lack of need for a drug condition here. I think, given the nature of this offence and given the nature of the issues that you had, that it caused you to seek out this drug both in the past and at the time of the offending, I think it would be foolish not to have that particular condition.
129So there is going to be a treatment and rehabilitation condition. They may take the view that there is no need for you to do anything. If that is the view they take, so be it. But I am arming them with the ability to require you to undergo assessment and treatment, including testing for drug abuse or dependency as directed by the Regional Manager.
130And you must also undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.
131Now, look, that is a mouthful. No-one is seriously suggesting there is any need for some of those more dire things, but Dr Barth himself is suggesting there is a need for further treatment. There obviously is, and that is what you will be directed to do. And it may well be - they have got those reports. It may well be they simply tell you to keep doing what you are doing to keep seeing Barth's associate. But anyway, whatever they tell you to do, you must do.
132So that is the full suite of terms and conditions. So you breach any of those and you breach the order. I would be very surprised if I ever clap eyes on you again. I would not say that of most people that I see in the dock who I place on these orders, but in your case, I would be. I have expressed my view that you are highly unlikely to offend in the future.
133But compliance with this order is a different proposition. As I say, it is not just breached by committing an offence. It is breached by non-compliance, and
I have had people who I have been very confident about in the past who
I thought would never breach an order. They thought they would never breach the law, and they did not.134But they breached the order - by not turning up, by putting work above unpaid work, by not communicating with the officer, by not turning up for treatment or the like, or testing. There are any number of ways that people have breached these orders. I have seen almost every way. I would be surprised to see you again. I hope I do not, but that is what happens.
135If you breach the order, you come back, and you come back to this court.
Not to the Magistrates' Court. You come back in front of me, because it is my order. I am signing it, you will be signing it, and if you breach it, you come back before me.136I am giving you an opportunity. I am giving you an opportunity for the reasons I have advanced. I take the particular view I take of this particular instance of the commercial quantity importation. And the chief matter that is raised is that which has been conceded. That is the differentiating factor of this being for personal use, there being no profit motive at all at play here.
137So I am giving you this opportunity. The Crown, represented by
Mr Grant, on behalf of the Commonwealth Director of Public Prosecutions, urges me to lock you up in the face of the particular circumstances of this case. I am not. I am not, for the reasons that I have announced. But I am giving you an opportunity, and it might be judged by some to be a lenient disposition. I do not know. I am doing what I regard as appropriate in the circumstances.138But do not treat it as an opportunity for you to breach this and come back and seek further leniency. That is not the way it works. I do not think I will see you again, but if I do, it is far more likely to have a most unhappy ending for you.
139Let me just consider what I have to tell you in terms of the Commonwealth regime in terms of breaching these orders. Because if you breach this order - it is in place for the next two years, as you know. If you fail to comply, then you will be brought back before me, and I have a variety of options if you are brought back before me. I can impose a monetary penalty, I can revoke the order and re-sentence, or I can take no action.
140You should work on the very clear theory that if you breach this order, what is judged to be at least from the Crown's perspective, a lenient disposition - overly lenient, really. If you breach it, you are back in front of me. Work on the theory that it is likely in that setting that I would revoke the original order and then re-sentence.
141The next step up the sentencing hierarchy for someone breaching a community corrections order is that which the Crown are urging upon me today. That is a term of imprisonment. So work on that theory. You comply with the order, do what you are told to do over the next two years - end of story. Breach it, you come back in front of me. And you come back in front of me, and you should really be working on the theory that if that occurs, the order will be revoked. And there is a realistic, very real possibility of your being sent immediately to prison.
142You do not need to be in that position. You simply comply with the order and you will avoid that outcome. But it is amazing how many people I have seen who consent, as you will, to the order, who have avoided a term of imprisonment, as you have, who have it in their control to avoid going to prison, who then breach the order.
143The point I am making: do not come back expecting that there will be a second chance. This is it. Comply with the order or else, really, is the subtext there.
144In addition to this community corrections order, I am convicting and fining you the sum of $2,000. That will be payable to the registrar of this court. I think it is then paid onto the AFP. But in any event, I am making that order in addition to the community corrections order.
6AAA
145I have made plain I have taken into account your guilty plea.
I have told you of the need to discount the penalty as a result of that. In a way, these things are artificial, these s.6AAA declarations. They are very hard to actually fix upon, because I would be dealing with a very different person in a trial setting. It is not just a matter of the fact of a guilty plea.
You have pleaded guilty. In a trial, you would not have. I am finding you to have remorse as well in making judgments about your prospects of rehabilitation. All those things shift in the setting of a trial.146Nonetheless, I am required to make the declaration. Had you conducted a trial and been found guilty of this offence, I would convicted and sentenced you to two-and-a-half years' imprisonment. I would have fixed a non-parole period of 18 months[1]. That is to be noted in the records of the court.
[1] His Honour notes that the release mechanism should have been a Recognisance Release Order after 18 months.
147Let me just see if I have adequately explained the order, the potential ramifications upon the breach, and if there is anything else I need to mention. Then I will have the order come down for signature. Mr Grant, firstly you.
Any other matters I need to deal with?148MR GRANT: No, Your Honour.
149HIS HONOUR: All right. Ms Lacy?
150MS LACY: I just wanted to raise, Your Honour, in the Corrections report there's a recommendation that flips over the page into p.2.
151HIS HONOUR: Yes. In terms of making allowance, in terms of the unpaid work?
152MS LACY: Yes, that's right.
153HIS HONOUR: I have not pronounced that because I am not ordering it.
154MS LACY: Yes, thank you, Your Honour.
155HIS HONOUR: He is to do the unpaid work, and he is to do such counselling as he is directed to do. And the counselling does not cut out the number of hours. He has got to do the 200 hours of unpaid work.
156MS LACY: As Your Honour pleases.
157HIS HONOUR: Any other matters at all, or not? No?
158MS LACY: No.
159HIS HONOUR: Let me just have a look, then, at the document. Just have a look at the document coming down there, please. Does that seem to be in accordance with my stated intentions?
160MS LACY: It does. Would Your Honour have me take it?
161HIS HONOUR: I will have my associate bring it down to you. You can go down as well, if you want. I mean, do you want it - make sure your client is consenting. I am assuming he is.
162MS LACY: Yes, he is.
163HIS HONOUR: Yes. I will sign that order as well. If you could just stand up, please? Mr Ma, I have explained this order in some detail. You have now signed it. Do you understand the effect and the conditions of this order?
164OFFENDER: Yes, I do, Your Honour.
165HIS HONOUR: And you do consent to entry into this order?
166OFFENDER: Yes, I do.
167HIS HONOUR: And you understand the ramifications of potential breach of it?
168OFFENDER: Yes, I do.
169HIS HONOUR: All right. I will sign that order, then you will get a copy of that in a moment and you will be free to leave the dock once I have left the Bench. And just get cracking on that order, and get the work behind you. Get that unpaid work done as quickly as you can get it done, and deal with such counselling as is required, and get on with your life. Do not put yourself in breach of this order. To do so would be to jeopardise your liberty. Do you understand?
170OFFENDER: Yes, Your Honour.
171HIS HONOUR: Yes, all right. No other matters?
172MS LACY: No, Your Honour.
173HIS HONOUR: Thank you for your assistance. I will sign the formal orders downstairs. I had not realised how late it was. I am sorry I sat into lunch for you all. Yes, I will sign the formal orders downstairs in chambers. So 10.30 Tuesday.
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