DPP (Cth) v Maxwell

Case [2013] VSCA 50


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

  1. 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].

  1. 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. 

  1. 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.   

  1. At the conclusion of the Director’s submissions, the  Court announced that the appeal would be dismissed, and that reasons would…

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DPP (Cth) v Maxwell [2013] VSCA 50
Case
[2013] VSCA 50
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CaseChat Overview and Summary

The Commonwealth Director of Public Prosecutions (DPP) appealed against the sentence imposed on Maxwell, who had pleaded guilty to importing a commercial quantity of gammabutyrolactone (GBL), a border-controlled drug. Maxwell was sentenced to four years' imprisonment, with a non-parole period of two years. The appeal centred on the sentence's adequacy and the court's assessment of the offence's objective seriousness. The primary issues were whether the trial judge erred in assessing the objective seriousness of Maxwell's offences, particularly considering the relatively low financial reward, and whether the sentence was manifestly inadequate and anomalously low within the context of the quantity-based sentencing regime applicable to offences involving GBL.

The court examined the principles of sentencing and the established practices for offences involving GBL. It considered the trial judge's assessment of the objective seriousness of the offences, the relevance of the low financial reward, and the appropriateness of the sentence within the existing sentencing framework. The court held that the trial judge had correctly applied the relevant principles and that the sentence was not manifestly inadequate. It found that the sentence was within the range reasonably available and was compatible with the quantity-based sentencing regime for offences involving GBL. The appeal was dismissed.

The court's decision was based on the thorough assessment of the trial judge, who had considered all relevant factors and applied the appropriate legal principles. The sentence imposed was deemed to be appropriate and not anomalously low when compared to other cases involving similar quantities of GBL. The appeal was dismissed, and the original sentence remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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