DPP (Cth) v Maxwell
[2013] VSCA 50
•13 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0207
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| KUIA ANASTASIA MAXWELL | Respondent |
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| JUDGES | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 January 2013 |
| DATE OF JUDGMENT | 13 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 50 |
| JUDGMENT APPEALED FROM | DPP (Cth) v Maxwell (Unreported, County Court of Victoria, Judge Rizkalla, 24 August 2012) |
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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Importing commercial quantity of border-controlled drug (gammabutyrolactone, or ‘GBL’) – Plea of guilty – Respondent sentenced to 4 years’ imprisonment, non-parole period 2 years – Whether judge erred in assessing objective seriousness of offences – Relevance of low financial reward – Whether sentence manifestly inadequate – Sentencing practice for offences involving GBL – Whether anomalously low – Whether compatible with quantity‑based sentencing regime – Sentence within range reasonably available – Appeal dismissed – Criminal Code Act 1995 (Cth) s 307.1.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr L Crowley | Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr M Cahill with Mr D Cash | Matthew White & Associates |
MAXWELL P
WEINBERG JA
PRIEST JA:
Introduction
The respondent (‘KM’)[1] pleaded guilty to two counts of importing a commercial quantity of a border-controlled drug (gammabutyrolactone, or ‘GBL’).[2] She was sentenced as follows:[3]
[1]The abbreviation is used for ease of reference only.
[2]GBL is a border-controlled drug pursuant to the Criminal Code Act 1995 (Cth) s 314.4(1).
[3]DPP (Cth) v Maxwell (Unreported, County Court of Victoria, Judge Rizkalla, 24 August 2012), [57]–[58] (‘Reasons’). A single non-parole period was fixed in accordance with s 19AB(1)(d) of the Crimes Act 1914 (Cth).
Charge on Indictment Offence Maximum Sentence Cumulation 1 Import commercial quantity of border‑controlled drug[4] Life imprisonment and/or $825,000 fine 3 y Base 2 Import commercial quantity of border‑controlled drug Life imprisonment and/or $825,000 fine 2 y 6 m 12 m[5] Total Effective Sentence: 4 y Non-Parole Period:
2 y
[4]Contrary to the Criminal Code Act 1995 (Cth) s 307.1.
[5]This cumulation was achieved by the sentencing judge ordering that the sentence on charge 2 commence one and a half years from the date of sentence: Reasons, [65].
The Commonwealth Director of Public Prosecutions appealed against the sentence on two grounds; namely that:
(a)the sentencing judge erred in her assessment of the objective seriousness of the offences; and
(b)the sentence was manifestly inadequate.
In support of the second ground, counsel for the Director argued that current sentencing practice for importation offences involving GBL was anomalous, and incorrect. It was submitted that GBL had been wrongly treated by sentencing judges as falling into a less serious category than other drugs (such as cocaine), and that this had led to unjustifiably low sentences. According to counsel’s submission, this sentencing differential could not be explained merely by the significant reward differential between GBL and other drugs.
At the conclusion of the Director’s submissions, the Court announced that the appeal would be dismissed, and that reasons would be published in due course. These are those reasons.
In summary, we concluded that:
(a)no error had been made by the judge in assessing the objective seriousness of the offence;
(b)the sentence imposed was within the range reasonably available in the circumstances of the case; and
(c)current sentencing practice for importation offences involving GBL was appropriate for this form of the offence, having regard to its objective seriousness and the need for specific and general deterrence.
Our detailed reasons are as follows.
Circumstances of offending
The circumstances of the offending were as follows. Between 1 and 31 January 2010, KM placed an online order for two one-litre bottles of GBL. Some time after 11 January 2010, the GBL was sent to a Singapore post-office box. It was then re-routed to KM’s home address, where it was received by KM (charge 1).
Charge 2 relates to the importation of a further quantity of the same drug on 31 July 2010. Customs officers intercepted a package at Tullamarine Airport addressed to ‘Neve Night’, a name that KM used as a pseudonym. The package was seized and examined by the Australian Federal Police. It was found to contain one bottle holding 1,155 millilitres of pure GBL. The amount specified by the Criminal Code Act 1995 (Cth) as a commercial quantity of GBL is one kilogram.[6]
[6]Criminal Code Act 1995 (Cth) s 314.4(1).
The wholesale value of the three litres of GBL imported by KM was between $6,600 and $9,000. Its street value was between $10,440 and $17,400.[7]
[7]Reasons, [12].
The police attended KM’s residence to speak to her about the seized package. KM pretended to be her fictitious twin sister ‘Kay Maxwell’. She denied having any knowledge of the package or of a person called ‘Neve Night’. It was not until the record of interview that KM admitted that she did not have a twin sister.
Once KM admitted this fact to police, she made various other admissions. The Crown accepted that, given that there were no actual drugs intercepted in relation to charge 1, and that this charge was laid largely on the basis of KM’s admissions and emails that were subsequently found on her computer,[8] this was a matter that could properly be taken into account in mitigation. KM accepted that the amount of GBL involved in the first charge would have been in excess of a commercial quantity.[9]
[8]Ibid [7].
[9]Ibid [11].
KM alleged in relation to both charges that she had placed the orders for GBL under duress. The trial judge ultimately rejected this claim.[10]
[10]Ibid [26].
Ground 1
The first ground of appeal contended that the judge erred by assessing the objective seriousness of the offending ‘solely or primarily on the basis of the amounts of the drug imported’. The relevant passage of the sentencing reasons was in these terms:
The second relevant issue is the size of the importation in your case. The two charges are of a commercial quantity. That makes the offence objectively serious. But I accept, as your counsel submitted, that although each is above the commercial amount, they are at the bottom end [of] the scale of the amounts that would relate to that type of offending. So, objectively, the offending is at the lower end of seriousness within the range of this very serious offence. It also has to be inferred that the offending was for profit, given that I reject the evidence that you have proffered to the contrary.[11]
[11]Ibid [54].
As the Director’s submission pointed out, while the quantity of drugs is highly relevant to assessing the objective seriousness of trafficking and importation offences, weight is not the principal sentencing factor and should not ‘swamp’ other factors.[12] In the present case, it was said, the judge failed to give adequate consideration to a number of other relevant factors, which led to her Honour’s erroneous conclusion that the offending was at the ‘lower end of seriousness’ for this offence.
[12]Wong v The Queen (2001) 207 CLR 584, 609 (‘Wong’); DPP v Gonzalez [2011] VSCA 175, [32].
Counsel for the Director contended that the following considerations were ‘plainly relevant’ to an assessment of the objective seriousness of KM’s offending:
(a)the maximum penalty of life imprisonment;
(b)the fact that KM committed the offences for profit;
(c)the value of the drug imported;
(d)the fact that KM had organised the importation, ordered and paid for the imported GBL and received delivery of the first parcel;
(e)the fact that she knew of the quantities being imported and that it was illegal to import GBL;
(f)her knowledge that the GBL was going to be used to make GHB, which was to be sold; and
(g)the fact that the offending involved ‘some degree of planning and organisation’, in that KM had used a pseudonym to place the orders and had set up the Singapore post office box for re‑routing of the parcels.
These were certainly relevant considerations. But the sentencing reasons demonstrate that they were taken into account. Her Honour considered the quantity of GBL imported within the broader context of the offending, and addressed each of the factors relevant to objective seriousness.
First, her Honour referred specifically to the fact that the offences attracted a maximum penalty of life imprisonment.[13] An offence carrying that maximum ‘is to be viewed as being of the utmost seriousness’,[14] but a judge must always be guided by the facts of the particular case.[15]
[13]Reasons, [13].
[14]Nguyen v The Queen (2011) 31 VR 673, 676 [2] (‘Nguyen’).
[15]R v Geddes (1936) 36 SR (NSW) 554, 555–6; cited with approval by McHugh J in Markarian v The Queen (2005) 228 CLR 357, 383 [65].
Secondly, her Honour recognised the aggravating features of the offending. She upheld the Crown’s submission that KM’s involvement was ‘significant’ because she had ordered and paid for the GBL, used her own email account and ‘sent a further email of 15 June suggesting continuing regular orders’.[16]
[16]Reasons, [53].
Finally, her Honour noted that the offences were committed for profit[17] and that, according to KM’s version of events, she knew that the GBL would be used to make GBH.[18]
[17]Ibid [54].
[18]Ibid [6].
Her Honour went on to state that, because the amounts trafficked were of a ‘commercial quantity’ the offending was ‘objectively serious’.[19] At the same time, the amounts were ‘at the bottom end of the scale’,[20] being just over the commercial quantity of GBL in relation to charge 2, and approximately twice the commercial quantity (‘2 x CQ’) of GBL in relation to charge 1.
[19]Ibid [54].
[20]Ibid.
The sentencing regime being quantity-based, the scale of the importation will almost always be a very significant factor in sentencing. Ordinarily, the larger the quantity imported, the more serious will be the offence (other things being equal).[21] Since importations can involve many multiples of a commercial quantity of the drug in question,[22] it is quite correct to say that an importation which involves (only) one or two multiples is ‘at the bottom end’ of the quantitative scale. But there is another important factor in the present case — the low financial return (likely to be) derived from sales of GBL.
[21]Nguyen (2011) 31 VR 673, 676 [2].
[22]Ibid 700–701 (Table A).
The significance of the (anticipated) financial return
In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence.[23] Other things being equal, an importation which is undertaken because it will bring — or is expected to bring — a large financial reward to the offender will be more serious than one where the expected reward is small or non‑existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.[24]
[23]R v Paliwala (2005) 153 A Crim R 451, 459 [44]; R v Liu [2005] NSWCCA 378, [53]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 63 [261] (‘De La Rosa’).
[24]See, eg, the remarks of the sentencing judge quoted in Barbaro v The Queen [2012] VSCA 288, [45] (‘Barbaro’).
As the High Court stated in Wong:
In general, … the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.[25]
[25]Wong (2001) 207 CLR 584, 608 [64] (emphasis added). See also Barbaro [2012] VSCA 288, [44].
Likewise in R v Pidoto and O’Dea,[26] this Court took into account on resentencing the fact that ‘[t]he quantity and value of the drug in which the appellants trafficked were substantial’.[27] Similarly in De La Rosa, the ‘very significant financial gain’ of approximately $48,000 received by the offender was recognised as a key factor for the purposes of sentencing in drug importation cases.[28] In R v Gates,[29] Eames JA, when noting that the offending was a ‘very significant instance’ of drug trafficking, stated that:
The quantity of the drug and the sums involved in trafficking it were substantial. Although the applicant may not himself have yet received substantial sums with respect to the trade he obviously anticipated significant rewards for his criminal conduct, in which he engaged over a lengthy period and at a high level.[30]
[26](2006) 14 VR 269 (‘Pidoto’).
[27]Ibid 288 [91].
[28](2010) 79 NSWLR 1, 64-5 [267.4]. See also Nguyen (2011) 31 VR 673, 683 [35].
[29][2005] VSCA 61.
[30]Ibid [27].
The offending in the present case may be contrasted with offences that involve complex international operations and millions of dollars of expected profits.[31] This importation involved an online purchase at low cost and with low returns. Her Honour noted the relatively low value of the GBL[32] as compared to other drugs and concluded that ‘objectively, the offending is at the lower end of seriousness within the range of this very serious offence’.[33]
[31]See, eg, Ng v The Queen [2010] NSWCCA 232; Chan v The Queen [2010] NSWCCA 153; R v Cheung (2010) 203 A Crim R 398; De La Rosa (2010) 79 NSWLR 1; Barbaro [2012] VSCA 288.
[32]Reasons, [12].
[33]Ibid [54].
The appeal submission for the Director, however, was that because the sentencing regime was quantity‑based, there was no scope for sentence differentiation by reference to reward. According to the written submission:
The Code adopts a quantity‑based penalty regime distinguishing between drugs according to set quantities but otherwise making no distinction in terms of maximum penalties. The regime is founded upon the legislature having made its own differentiation between drugs in deciding upon the applicable commercial quantities prescribed. Accordingly, a section 307.1(1) Code offence involving GBL should not be treated as any less serious than the same offence involving other types of border controlled drugs, such as cocaine or heroin, simply because of the identity of the drug. If a substance exceeds the prescribed commercial quantity, it is to be treated, for the purposes of the relevant offence under the Code, as being identical to every other substance in the schedule of commercial quantities respectively.[34]
[34]Citations omitted.
This submission relied on the decisions of this Court in Pidoto[35] and of the High Court in Adams v The Queen.[36] In a footnote, the submission further contended:
Despite the observations of the High Court in Adams, sentences imposed to date for offences involving GBL do not accord with the range of sentences for similar offending involving a different drug, such as heroin, cocaine, MDMA or methylamphetamine. The disparity in earlier sentences may be accounted for by the fact that up until Adams, there was a perception that certain drugs were to be considered as ‘mid‑range drugs’ as opposed to ‘hard drugs’ like heroin or cocaine.
[35]Pidoto (2006) 14 VR 269.
[36](2008) 234 CLR 143, 146 (‘Adams’). See also R v Corbett [2008] NSWCCA 42, [25].
With respect, this submission misapprehends what was — and what was not — decided, first in Pidoto and subsequently in Adams (which upheld the decision of this Court in R v Adams).[37] The principle established by those decisions was that, under the quantity‑based sentencing regimes established respectively for drug trafficking offences (State) and drug importation offences (Commonwealth), there was no scope for a sentencing judge to differentiate between drugs on the basis of perceived differences in harmfulness. As the High Court majority said in Adams:
In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity‑based system, should apply a judicially constructed harm‑based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme.[38]
[37][2007] VSCA 37.
[38]Adams (2008) 234 CLR 143, 148 [10].
Nothing said in either Pidoto or Adams suggested that the financial reward anticipated by the offender was irrelevant to sentencing. On the contrary, the joint judgment in Pidoto pointed out that the specification of the amounts which would constitute the commercial quantity of particular drugs was based on anticipated profit.[39] The statutory presumption was that the quantities selected would lead to a ‘consistency of monetary value’ across the range of drugs. The Court said:
[39]Pidoto (2006) 14 VR 269, 272–3 [14]–[15].
When the amounts constituting the commercial quantity of certain drugs of dependence were lowered by the Sentencing and Other Acts (Amendment) Act 1997, the then Attorney-General said:
The offence of trafficking in a commercial quantity of a drug of dependence will continue to attract a maximum penalty of 25 years. The offence is intended to apply to the sorts of drug traffickers who ply their trade in expectation of enormous profits.
The quantities of drugs comprising those commercial quantities have been reviewed and lowered to reflect more realistic dollar value amounts of between $100,000 to $250,000. This should ensure that trafficking ventures which are truly commercial in nature attract the higher maximum penalty …
It was considered that the quantities currently set out in schedule 11 of the Act are at such high levels that large scale drug ventures which are blatantly commercial in nature are not being caught by the Victorian provisions.
Because the motivation for trafficking drugs is primarily economic profit, the levels set for the different drugs in schedule 11 will reflect a consistent monetary value or number of doses of a drug. The bill reduces quantities to a level that more realistically reflects the commercial nature of criminal ventures.
The express purpose of the quantification in Sch 11 was thus to establish, in relation to each nominated drug of dependence, the quantity of that drug which would justify characterising the trafficking as ‘truly commercial in nature’. What brings an offence within s 71AA is the quantity of the drug trafficked, not any property of the drug in question (other than that it must be a drug of dependence and one for which a commercial quantity has been specified).[40]
[40]Ibid 272–3 [14] (citation omitted), quoting Hansard: Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873, 876 (Jan Wade, Attorney-General) (emphasis added).
Ordinarily, of course, it is unnecessary for the prosecution to prove — and it may in any case be difficult or impossible to prove — what the anticipated return for the offender was. But, on ordinary principles, it is open to a person convicted of involvement in a drug importation to seek to mitigate his/her culpability by establishing on the balance of probabilities that he/she stood to derive little or no benefit personally.
Likewise, in a case such as the present, it must be open to the offender to prove that a commercial quantity of the particular drug imported had a fraction of the wholesale or retail value of a commercial quantity of another drug. Put another way, by this means the offender seeks to establish that — contrary to the legislative presumption — the importation of a commercial quantity of the drug in question was not ‘truly commercial in nature’ but could only ever have produced a relatively small return.
Current sentencing practice for importation of GBL
On the plea, counsel for the Director helpfully referred the sentencing judge to a series of decisions concerning sentences imposed for importing a commercial quantity of GBL. For ease of reference, we have listed those cases, and their key features, in Table A attached to these reasons.
The submission for the Director on the appeal — though not on the plea — was that, insofar as these decisions reflected a distinct sentencing practice for the importation of this particular drug, that practice was indefensible as a matter of sentencing law. According to the submission, sentencing courts had, without reasonable justification, consistently imposed lower sentences for the importation of a commercial quantity of GBL than for the importation of equivalent quantities of other drugs such as heroin and cocaine. This sentencing differential was said to be incompatible with the quantity‑based sentencing regime, and this Court was invited to say so.[41]
[41]Cf DPP v Werry [2012] VSCA 208, [63]; Hogarth v The Queen [2012] VSCA 302, [48].
We would reject this submission. In our opinion, the consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential to which we have referred. Indeed, the very consistency of the sentencing practice can be seen to reflect the fact that sentencing judges view a drug offender’s culpability as materially reduced in a case such as this, where the likely financial reward is relatively small.
Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general. As has often been said, the sentence to be imposed for a drug importation (or trafficking) offence must signal both to the offender, and to other would‑be offenders, that the potential financial rewards to be gained from such activities are outweighed by the risk of severe punishment.[42] Obviously enough, the greater the anticipated reward, the more powerful the deterrent message must be. The converse is also true.
[42]See Nguyen (2011) 31 VR 673, 682 [34.8]–[34.9]; R v Nguyen and Pham (2010) 205 A Crim R 106, 126–8 [72].
There is another reason why general deterrence may be seen to be of increased importance if the anticipated reward from dealing in illicit drugs is high. Where the potential to reap large profits from dealing in a particular proscribed drug is great, the potential for the commission of offences involving that drug — with corresponding risk of harm to the community — might be regarded as greater. Thus, considerations of general deterrence and community protection are of more significance in those cases than in a case like the present.
To treat a low‑reward drug like GBL differently for sentencing purposes is in no way inconsistent with the statutory assumption that a commercial quantity of drug A is to be viewed for sentencing purposes as being just as harmful as a commercial quantity of drug B. But it is to recognise that the very high maximum penalties fixed for offences involving a commercial quantity (or more) reflect a legislative intention to visit very heavy punishment on drug profiteers. Plainly enough, KM does not fall into that category.
On the plea, counsel for KM drew attention to one of the cases in Table A, DPP (Cth) v Colledge.[43] The offender there had pleaded guilty to importing a little over 2 x CQ of GBL. Although (unlike KM) he had relevant prior convictions, he was fined $3,000 (the fine having been increased by the Court of Criminal Appeal from $500). The prosecutor told the judge that this decision showed that there was ‘quite a wide sentencing discretion’ in GBL cases.
[43][2010] NSWCCA 302.
The prosecutor drew the judge’s attention to the case of DPP v Harvey,[44] where the offender (with no relevant prior convictions) pleaded guilty to importing 12.4 x CQ of GBL and was sentenced to two years’ imprisonment. He was to be released after eight months, upon giving security of $2,000 and on condition of good behaviour for two years. The judge was also taken to the case of DPP v Hahn,[45] where the offender (who had relevant prior convictions) pleaded guilty to importing 2 x CQ of GBL, and was sentenced to 12 months’ imprisonment. These sentences may be contrasted with those imposed in R v Hill; ex parte DPP (Cth).[46] The quantity imported was 4.6 x CQ of GBL and sentences of five and six years respectively were imposed on the individual offenders. Unlike KM, however, each offender had pleaded not guilty, and each had relevant prior convictions.
[44]DPP v Harvey (Unreported, County Court of Victoria, Judge Wischusen, 27 May 2011).
[45]DPP v Hahn (Unreported, County Court of Victoria, Judge Nicholson, 24 October 2011).
[46](2011) 212 A Crim R 359.
Counsel for the Director also provided to the sentencing judge, and to this Court, a table of sentences imposed for importation of similar quantities of other drugs. These were said to provide a proper basis for the submission on sentencing range made by the prosecutor on the plea, that there should be a head sentence of seven to 10 years and a non‑parole period of four to six-and-a-half years.
As Weinberg JA pointed out in the course of argument, however, in the cases where sentences of that magnitude had been imposed, the street value of the drug was in the millions of dollars. Using the information in the Director’s table, the following examples are illustrative:
·R v Dusanjh:[47] involved in importing approximately 1.04 x CQ of cocaine, with a street value estimated at $1.2–$1.9 million; motivated by financial gain; sentence 10 y 6 m, non‑parole period 6 y;
·R v Llalla:[48] involved in importing 1.1 x CQ of cocaine, with a street value estimated at $1.5–$1.7 million; acted for financial gain; sentence 8 y, non‑parole period 5 y; and
·R v Pedreira:[49] involved in importing approximately 1.6 x CQ of cocaine, with a wholesale value of approximately $925,000; offence committed to obtain money; sentence 10 y, non‑parole period 6 y.
[47](Unreported, District Court of New South Wales, Judge Charteris, 28 April 2010).
[48](Unreported, District Court of New South Wales, Judge Sorby, 17 February 2011).
[49](Unreported, District Court of New South Wales, Judge Garling, 15 December 2011).
Ground 2
Under the second ground of appeal, the Director contended that the individual sentences and the single non-parole period for the aggregate sentence were manifestly inadequate. According to the written submission, this was because the sentencing judge:
failed to give sufficient weight to the following factors:
(a) the objective seriousness of the offences;
(b) the principle of general deterrence;
(c) the principle of specific deterrence;
(d) the need to ensure KM was adequately punished for the offences;
(e) the need to ensure consistency in punishment,
and gave too much weight to:
(f) the respondent’s subjective features and mitigating factors.
As this Court said in DPP v Karazisis,[50] the ground of manifest inadequacy (like the ground of manifest excess) is a stringent one, difficult to make good:
Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[51]
[50](2010) 31 VR 634.
[51]Ibid 662–3 [127] (citation omitted).
In our view, her Honour arrived at a sentencing conclusion that was reasonably open to her, given the circumstances of the offending and of the offender. First, as discussed above, her Honour considered and correctly assessed the objective seriousness of the offending. Secondly, her Honour emphasised the importance of general deterrence. Her Honour stressed that general deterrence was of great importance due to ‘the difficulty in detection and the social consequences of this type of crime’ and that KM’s conduct warranted ‘severe punishment’.[52] Her Honour further stated that any sentence must neutralise any potential financial reward to be gained for engaging in such conduct.[53]
[52]Reasons, [55].
[53]Ibid. See also Nguyen (2011) 31 VR 673, 682 [34.8].
In our view, a sentence of four years with a non-parole period of two years — for a first offender — would operate as a very significant deterrent, given that the potential profits — even at the most generous estimate — amounted to $17,400.
Third, the sentencing reasons demonstrate that her Honour was cognisant of a number of factors relevant to specific deterrence. Her Honour referred to KM’s initial lack of co-operation with the police and her initial denial of any knowledge of the seized package.[54] In addition, her Honour referred to the fact that KM did not consider arranging the delivery of drugs to friends during 2010 to be a criminal offence or that it was wrong.[55]
[54]Reasons, [9].
[55]Ibid [23].
Fourth, her Honour accepted, as she was bound to do, that there were a number of mitigating factors that had to be taken into account. Most importantly, her Honour accepted that KM had made a voluntary admission in relation to charge 1, and she was entitled to credit for accepting responsibility for that charge.[56] A voluntary admission by an offender is an important indicator of remorse and prospects of rehabilitation.[57] At the hearing of the appeal, counsel for the Director accepted that the admission was a very significant point in KM’s favour.
[56]Ibid [13].
[57]Dosen v The Queen [2012] VSCA 307, [28].
Her Honour also accepted that KM was entitled to a reduction of sentence due to her guilty plea. Her Honour noted, however, that this plea was ‘clearly … pragmatic’ due to the strong Crown case,[58] and that KM’s poor credit ‘impact[s] upon mitigation you might otherwise have received by way of inferred remorse as a result of your plea of guilty’.[59] Her Honour found KM to be ‘a person who is at best unreliable and at worst dishonest in [her] dealings with this court’.[60] KM had previously fabricated two medical documents in support of a variation of bail reporting conditions,[61] and the judge found that KM ‘could not really see that that was something that was wrong’.[62] On another occasion, KM falsified a medical report to state that she was pregnant,[63] and admitted to telling lies to the police on a number of occasions.[64]
[58]Reasons, [13].
[59]Ibid [28].
[60]Ibid [25].
[61]Ibid [17]–[18].
[62]Ibid [18].
[63]Ibid [19].
[64]Ibid [21].
As a result of KM’s poor credit, her Honour did not accept her claim that she had committed the offences while acting under duress:
I am of the view that you have acted on your own professed survival instinct, and that you have lied in order to advance your case here for mitigation. I do not propose, therefore, to give any credit in sentence based upon duress or coercion by a third party as your motivation for offending.[65]
[65]Ibid [26].
The judge found KM to be a committed mother, who had a strong desire not to use drugs in order that she might regain custody of her son. In this regard, her Honour accepted that the random drug screens required by the Family Court had demonstrated that KM was capable of abstaining from drug use.[66] Her Honour noted that KM’s prospects of rehabilitation were dependent on her being able to balance the use of prescription drugs with counselling and professional help.[67]
[66]Ibid [50].
[67]Ibid [51].
Conclusion
We concluded that the sentence imposed could be seen to reflect the giving of appropriate weight to all relevant considerations. We therefore dismissed the appeal.
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TABLE A
DPP (Cth) v Maxwell - S APCR 2012 0207
Cases identified by the Director involving the importation of GBL
| Case name | Age of offender | Plea | Priors | Assistance to police | Maximum penalty | Primary offence | Role of offender | Total GBL quantity (grams) | Multiple of commercial quantity | Sentence |
| R v Nicholas (Unreported, District Court of South Australia, Judge Clayton, 28 January 2009) | 31 | G | Y | N | Life | Import commercial quantity of border-controlled drug | Principal | 5,2517 | 52.52 | 3 y 6 m |
| R v Davidson [2009] NSWCCA 150 | 24 | NG | N | N | Life | Import commercial quantity of border-controlled drug | Principal | 30,500 | 30.5 | 6 y |
| DPP (Cth) v Colledge [2010] NSWCCA 302 | 34 | G | Y | N | Life | Import commercial quantity of border-controlled drug | Principal | 2,060 | 2.1 | $3,000 fine (increased on appeal from $500 fine) |
| R v Hill; ex parte DPP (Cth) (2011) 212 A Crim R 359 (offender: Bakir) | 36 | NG | Y | N | Life | Import commercial quantity of border-controlled drug (aid and abet) | Principal | 4,601 | 4.6 | 6 y |
| R v Hill; ex parte DPP (Cth) (2011) 212 A Crim R 359 (offender: Gray) | 22 | NG | Y | N | Life | Import commercial quantity of border-controlled drug | Intermediate | 4,601 | 4.6 | 5 y |
| R v Hill; ex parte DPP (Cth) (2011) 212 A Crim R 359 (offender: Hill) | 32 | NG | Y | N | Life | Import commercial quantity of border-controlled drug (aid and abet) | Principal | 4,601 | 4.6 | 6 y |
| DPP v Harvey (Unreported, County Court of Victoria, Judge Wischusen, 27 May 2011) | 28 | G | N | Y | Life | Import commercial quantity of border-controlled drug (aid and abet) | Accessory | 1,2438 | 12.4 | 2 y (to be released after 8 m upon giving security of $2,000 and on condition of good behaviour for 2 y) |
| DPP v Hahn (Unreported, County Court of Victoria, Judge Nicholson, 24 October 2011) | 28 | G | Y | N | Life | Import commercial quantity of border-controlled drug | Principal | 2,000 | 2 | 12 m (wholly suspended upon giving security of $1,000 and on condition of good behaviour for 13 m) |
| DPP v Lawrence (Unreported, County Court of Victoria, Judge Parsons, 31 October 2011) | 35 | G | N | N | Life | Import commercial quantity of border-controlled drug | Principal | 3,589.1 | 3.59 | 6 m |
| R v Elrifai (Unreported, District Court of New South Wales, Judge Syme, 23 February 2012) | 33 | G | N | N | Life | Import commercial quantity of border-controlled drug | Principal | 14,112 | 14.11 | 1 y 8 m (wholly suspended upon giving security of $10,000 and on condition of good behaviour for 1 y 8 m) |
| R v Lessard-Mailhot (Unreported, Supreme Court of Queensland, Henry J, 12 July 2012) | 29 | G | N | N | Life | Import commercial quantity of border-controlled drug | Principal | 3,475.5 | 3.48 | 3 y (to be released after 13.5 m upon giving security of $10,000 and on condition of good behaviour for 3 y) |
| R v Stephens (Unreported, Supreme Court of Queensland, Applegarth J, 17 July 2012) | 29 | G | Y | N | Life | Import commercial quantity of border-controlled drug | Intermediate | 21,372.8 | 21.37 | 5 y 4 m |
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