Petkos v The Queen

[2020] HCATrans 212

[2020] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S56 of 2020

B e t w e e n -

JIM PETKOS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 DECEMBER 2020, AT 9.30 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the current COVID practice of the Court and to minimise the touching of lecterns, I will note the appearances. 

MR I.S LLOYD, QC appears with MR T. BICANIC for the applicant.  (instructed by Proctor & Associates)

MR P.J. McGRATH, SC appears with MS M. A. KUMAR for the respondent.  (instructed by Office of the Director of Public Prosecutions (NSW))

GAGELER J:   Thank you, Mr Lloyd.

MR LLOYD:   Thank you, your Honour.  Your Honours, may I start by the overall submission that we expand upon in our written submissions obviously that we submit the matter warrants the grant of special leave both at the level of general importance and at the level of the administration of justice on the particular facts of this case.

GAGELER J:   What is the principle in Maxwell that you say was not applied?

MR LLOYD:   If I could take your Honour briefly to Maxwell - I take it your Honours obviously have a copy of it.  It was a case dealing with a Commonwealth importation.  There were two charges in that case of the importation of the same drug the subject of this case, that is, the drug colloquial known as GBL. 

If I could just pick up Maxwell at paragraph 20, near the end of that paragraph there is a concluding sentence that says – and remember obviously this was in the face of a Commonwealth inadequacy appeal where the Commonwealth was challenging the inadequacy of the sentence in the lower court.  The Court of Appeal commented at the end of paragraph 20:

But there is another important factor in the present case — the low financial return (likely to be) derived from the sales of GBL.

The court then goes on traditionally in 21 and 22, quoting the decision of this Court in Wong where it was obviously stated that the greater the reward the offender hoped to receive for a drug transaction, then the heavier the punishment would be expected.  But the court went further, we submit, in Maxwell, and if I could pick up where they said things that we say go beyond this Court’s decision in Wong.  If I could take your Honour to paragraph 29 of Maxwell and pick it up at the second sentence:

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. 

Again, probably adopting Maxwell, going no further but we say that the next paragraph established a principle further than Wong and I would read, if I may, paragraph 30:

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.

So, the concept, I interpose, is being established by the Victorian Court of Appeal that as a sentencing principle an offender is entitled to compare and contrast the value of one drug on the schedule with another drug on the schedule.  We go on, if I could move down to paragraph 32 and the final sentence of paragraph 32 as I understand it was the basis of the Crown’s sentencing appeal:

This sentencing differential was said to be incompatible with the quantity‑based sentencing regime, and this Court was invited to say so.

Then, 33:

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.

They had already said where there was an enormous reward differential.  So we submit that the Court of Appeal established a sentencing principle that where an offender charged with a drug offence, whether it be an importation, whether it be a State supply - much of the legislation Australia‑wide is in similar terms, quantity‑based - but where an offender could reasonably establish an enormous reward differential then that would serve to reduce the objective seriousness of the criminality ‑ - -

EDELMAN J:   Mr Lloyd, can I take you to page 16, paragraph 15 of the application book?

MR LLOYD:   Yes, your Honour, I have it.

EDELMAN J:   Assuming everything that you say is correct, why is not that opening sentence of paragraph 15 taking into account the fact that the applicant “stood to make only a modest profit”?

MR LLOYD:   Your Honour, yes, I concede that.  It is said on three occasions by the learned sentencing judge that the applicant was only to make a modest profit.  But we say he should have gone further, with respect, and allowed the comparison of the enormous reward differential between GBL and the profits in other drugs such as cocaine, ice and MDMA.  The submission was made in the lower court that that comparison should have been made to further reduce, despite the fact of the modest profit, the objective seriousness of the offending into the lowest level.  I hope I have answered your Honour’s question.

GAGELER J:   You draw that principle out of paragraphs 32 and 33 of the decision in Maxwell, do you?

MR LLOYD:   Indeed.

GAGELER J:   On one view, paragraphs 32 and 33 are simply directed to explaining what were profiter’s comparable verdicts.

MR LLOYD:   Yes, that is so, your Honour, but we say there is a flavour throughout Maxwell which did not come through in the lower court in our case here of the enormous reward differential between drugs.

GAGELER J:   If you state it in propositional form, what is the precise sentencing principle that you say emerges from Maxwell that was not applied here?

MR LLOYD:   Putting it on my feet I would say this, that in sentencing a drug offender and when assessing the objective seriousness of the individual offending, a sentencing judge is entitled to and should have regard to an enormous reward differential between the subject drug and other drugs in the schedule.

EDELMAN J:   In effect, your submission is that the sentencing judge ought to have taken into account not only that there was a small reward in the context of this case but should have reduced the sentence further because the small reward is in comparison with other drugs?

MR LLOYD:   Indeed, that is our submission.  One looks at the profit - and we have raised this in our written submissions in the application book at page 44, paragraph 11.  I summarise there the monetary amounts in this case - and it was not in dispute that my client bought the overall quantity of GBL paying 800 USD from China over the internet which, on currency rates, came to a little over 1,100 AUD and he was to sell it, according to text messages, for a little over $1,000 a litre making a total sale price of $7,750 subtracting the purchase price that came to a profit of a little over $6,650 which equates to about the sale of an ounce of cocaine on the street.

So it is a massive differential, when one looks at the sale of cocaine, for example, which sells for $200,000 a kilo, or thereabouts.  These figures are well‑known and easily accessed.  There is a yearly Australian Government publication by the Australian Criminal Intelligence Commission, its Illicit Drug Data Report, which comes out every year.  It came out at the end of September this year and it prices street values, wholesale values of both GBL, cocaine, heroin and the like.

GAGELER J:   So the application of your principle in this case is that the sentencing judge erred by not taking into account the fact that GBL is a low reward drug in comparison with cocaine, which is a high‑reward drug?

MR LLOYD:   That is so, your Honour.  I could not have put it better, with respect.  That comparison was not made.  It was said by his Honour, and it was agreed in the facts, that there was a modest profit to be made.  But we say where his Honour fell into error, and as did the Court of Appeal, they did not go on and make the comparison with high‑value drugs.

GAGELER J:   Thank you. 

MR LLOYD:   Your Honour, I think that really covers what we say is the point of general importance.  Dealing with the visitation point, I think I can make the point best by merely going to the – near the end of the judgment of Justice Hamill delivering the decision of the State CCA.  If I could just take your Honours to page 34 of the application book, to paragraph 42:

I would grant leave to appeal because the sentence is a severe one in all of the circumstances, and the issue concerning the application of Maxwell to sentencing cases in New South Wales involving GBL is important.

He then of course dismisses the appeal.  So the reality is that if your Honours were to allow this appeal and find that what we have submitted is a sentencing principle from Victoria, going further than the High Court’s decision in Wong, it would have a real effect on the sentence in this case.

EDELMAN J:   Was there any evidence before the sentencing judge as to how many doses of GBL were contained in the 6.2 litres?

MR LLOYD:   No, there was not, your Honour.  There was no evidence as to how GBL is actually consumed.  It is a relatively new drug, and no one – I have not been able to find literature that really tells you how it is taken.

EDELMAN J:   What is the commercial quantity?

MR LLOYD:   Commercial quantity is a litre, or a kilo. 

EDELMAN J:   This was six times the commercial quantity?

MR LLOYD:   It was a charge of a large commercial.  The large commercial quantity is four kilos, under the State legislation.  And the charge of large commercial here was - I think it was 5.3.  So it is a little ‑ ‑ 

GAGELER J:   Thank you, Mr Lloyd.  We do not need to hear from you, Mr McGrath.

We are not persuaded that there is an error of sentencing principle in the decision of the Court of Criminal Appeal.  The application is dismissed.

The Court will now adjourn.

AT 9.43 AM THE MATTER WAS CONCLUDED