McMurray v The King - [2024] VSCA 276

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0168

BRETT GRAHAM MCMURRAY	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2024
DATE OF JUDGMENT:	21 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 276
JUDGMENT APPEALED FROM:	[2024] VCC 1289 (Judge Chambers)

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CRIMINAL LAW – Appeal – Sentence – Importing commercial quantity of border controlled drug (gamma-butryolactone or GBL) – Sentence to 18 months’ imprisonment with release on recognisance after serving 6 months – Whether judge erred in consideration of relevance of maximum penalty – Whether judge erred in holding that general deterrence was relevant whatever the motivation for the importation – Whether sentence manifestly excessive – Applicant’s complaints of specific error without substance – Applicant’s complaint of manifest excess not reasonably arguable – No reasonable prospect of less severe sentence being imposed – Application for leave to appeal refused.

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Counsel
Applicant:		Mr AS Dickenson
Respondent:		Ms K Breckweg
Solicitors
Applicant:	Rainer Martini & Associates
Respondent:	Commonwealth Director of Public Prosecutions

PRIEST JA
BEACH JA:

On 22 February 2023, the applicant pleaded guilty in the County Court to one charge of importing a commercial quantity of a border controlled drug (gamma-butyrolactone, also known as GBL) contrary to s 307.1(1) of the Criminal Code (Cth). The maximum penalty for importing a commercial quantity of a border controlled drug is life imprisonment.
On 19 August 2024, following a plea hearing on 16 July 2024, the applicant was sentenced to a term of imprisonment of 18 months.[1] Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the judge ordered the applicant to be released after serving six months’ imprisonment, upon the applicant giving security by recognisance in the sum of $1,000 to be of good behaviour for two years.[2]
[1]DPP (Cth) v McMurray [2024] VCC 1289, [81] (‘Reasons’).
[2]Ibid [82].
The applicant now seeks leave to appeal against sentence. His proposed grounds of appeal are:
1.The sentencing judge erred by failing to accurately apply principles regarding the maximum penalty of the offence.
2.The sentencing judge erred in holding that general deterrence was applicable whatever the motivation for importation.
3.The sentence of immediate imprisonment was manifestly excessive.

Circumstances of the offending

Gamma-butyrolactone (GBL) is a border controlled substance which can be used in the manufacturing of illicit drugs. It has other non-drug industrial uses but, under the Customs (Prohibited Import) Regulations 1956,[3] is not permitted to be imported into Australia without authorisation.
[3]Regulation 5, Schedule 4, item 98A.
At the time of his offending, the applicant was employed as General Manager at Della Precast. On 4 July 2018, he sent an email to Victoria Police requesting an application form to permit him to supply GBL for the purpose of steel cleaning. In the email, the applicant referred to having educated himself as to why GBL is ‘a controlled substance’. Police incorrectly advised the applicant that Health Victoria controlled GBL and applications were available online.
On 10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McMurray v The King

Details

AGLC: McMurray v The King [2024] VSCA 276
Case: [2024] VSCA 276
Decision Date: 21 November 2024

CaseChat Overview and Summary

McMurray brought an appeal against his sentence, which was imposed after he was found guilty of importing a commercial quantity of the border controlled drug gamma-butyrolactone, also known as GBL. The appeal was heard in the High Court of Australia. The central issues in this appeal were whether the trial judge erred in the consideration of the relevance of the maximum penalty for the offence and whether the judge erred in holding that general deterrence was relevant regardless of the motivation behind the importation. Additionally, the appeal questioned whether the sentence was manifestly excessive.

The High Court found that the applicant's complaints regarding the specific errors alleged lacked substance. The court held that the trial judge did not err in considering the maximum penalty, as it was an appropriate factor for the sentencing judge to take into account. Furthermore, the court determined that the relevance of general deterrence in the sentencing process was correctly acknowledged by the judge, irrespective of the applicant's motivation. The Court also found that the sentence was not manifestly excessive, and the applicant's argument to this effect was not reasonably arguable. The Court concluded that there was no reasonable prospect of the applicant receiving a less severe sentence if the appeal were to be successful.

Accordingly, the application for special leave to appeal was dismissed. The Court found that the applicant had not demonstrated that the appeal raised an error of law of general public importance or that the sentence was manifestly excessive. As such, the original sentence of 18 months’ imprisonment, with release on recognisance after serving 6 months, was upheld.

Orders