R v Busby - [2018] NSWCCA 136

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Busby [2018] NSWCCA 136
Hearing dates: 4 May 2018
Decision date: 06 July 2018
Before: Hoeben CJ at CL [1]
Walton J [2]
Button J [3]
Decision:
(1) The two pleas of guilty entered by the respondent, Ethan Alexander Busby, are rejected.
(2) The convictions entered against, and sentences imposed upon, the respondent by Acting Judge Armitage are quashed.
(3) The two outstanding charges against the respondent are remitted to the District Court for trial.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – asserted manifest inadequacy and other asserted errors – underlying issue – evidence of respondent on sentence inconsistent with pleas of guilty– requisite mental element with regard to quantity in state drug offences – pleas of guilty rejected – convictions and sentences imposed upon the respondent quashed – remitted to District Court for trial
Legislation Cited: Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Alhassan v R [2017] NSWCCA 73
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248
Dunn v The Queen (1986) 32 A Crim R 203
R v CWW (1993) 32 NSWLR 348; 70 A Crim R 517
Siafakas v R [2016] NSWCCA 100
Yousef Jidah v R [2014] NSWCCA 270
Category: Principal judgment
Parties: Regina
Ethan Alexander Busby
Representation:
Counsel:
B Hatfield (Crown)
I Lloyd QC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Criminal Defence Group (Respondent)

File Number(s): 2015/337189
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 December 2017

Before:

Acting Judge Armitage

File Number(s):

2015/337189

HOEBEN CJ AT CL: I agree with the analysis of Button J and the orders which he proposes.
WALTON J: I agree with Button J.
BUTTON J:

Introduction

On 15 March 2017, Mr Ethan Alexander Busby (the respondent) pleaded guilty to two offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act). The first count averred that, on 16 November 2015 in a suburb of Sydney, he knowingly took part in the supply of the prohibited drug MDMA (commonly known as ecstasy) in the amount of 20.88 kilograms, that amount being more than the large commercial quantity of that drug.
As at 16 November 2015, the large commercial quantity of ecstasy to be found in Schedule 1 (the Schedule) of the Act was 0.5 kilogram or 500 grams.
The second count averred that, on the same date and at the same location, the respondent knowingly took part in the supply of the prohibited drug cocaine in the amount of 2.23 kilograms, that amount being more than the large commercial quantity of that drug.
On the same date, the large commercial quantity of cocaine to be found in the same Schedule was 1 kilogram.
Each offence carried a maximum penalty of imprisonment for life, along with a standard non-parole period of 15 years.

Sentence and Crown appeal

The matter came before Acting Judge Armitage for sentence on 10 November 2017 in the District Court at Campbelltown.
Included in the number of documents that were tendered before the learned sentencing judge was a statement of agreed facts. They may be summarised as follows.
A co-offender of the respondent became the subject of surveillance by police after they had been informed that the co-offender was involved in supplying prohibited drugs.
On 16 November 2015, the police observed the co-offender exit his home carrying a suitcase. The co-offender placed that suitcase into the boot of a taxi, and entered that vehicle. The taxi travelled to a carpark, in which another motor vehicle, a silver Lancer, was parked.
The co-offender alighted from the taxi and removed the suitcase from its boot. At the time, the co-offender was wearing gloves. He transferred the suitcase from the boot of the taxi to the boot of the silver Lancer. The co-offender entered the front passenger seat of the Lancer and sat there for a few seconds. He then alighted from that vehicle, and walked away.
The respondent was seen to be seated in the driver’s seat of the Lancer. He drove it to Parramatta, where he was stopped by police. There the respondent was asked whether there was anything in the Lancer that he would like to disclose. He responded “I don’t think so”.
Police opened the boot of the Lancer, and saw a suitcase secured by a locked padlock. The respondent denied knowledge of who owned the suitcase. A key to the padlock was located in the centre console of the Lancer. The suitcase was opened, and found to contain 19 packages of ecstasy with a weight of 20.88 kilograms. The purity of the ecstasy was no less than 73%. The estimated wholesale value of the ecstasy was something over $835,000.
Also located in the suitcase were three packages of cocaine, which together weighed 2.23 kilograms. The purity of the cocaine was a little over 61%. The wholesale value of the cocaine was a little over $624,000. The ecstasy and the cocaine were packaged identically.
In a subsequent conversation with a detective, the respondent was asked whether he knew what was in the suitcase. He replied “I thought it may be bud”, referring to a form of cannabis leaf, which is also, of course, a prohibited drug. He denied knowing the person for whom he was transporting the drugs. He claimed that he was to be paid for his services in “bud”, in an amount that police estimated to be worth about $80.
The silver Lancer was searched, and a backpack was located on its front passenger seat. Found inside the backpack were the house keys and wallet of the respondent, along with some latex gloves. A Blackberry mobile phone was also found in the centre console of the Lancer; the respondent told police that he had seen that phone in the vehicle, but it was not his.
Later, the home of the respondent was searched. A locked safe was located. The respondent provided police with its pass code, and inside it police found a set of stained latex gloves, and paraphernalia to do with a Blackberry that matched the device and sim card located inside the Lancer.
Finally, police searched the home of the co-offender, and located three mobile phones and almost $190,000 in cash.
Subjectively, the respondent had been born in January 1991, and was therefore 26 years of age in November 2017. He had no criminal antecedents.
The sentencing judge found that the respondent had suffered developmental difficulties; had sought psychological counselling throughout his school years; had struggled academically and left school after completing year 10; and had undertaken various forms of employment and education since school. His Honour also found that the respondent was a shy and introverted young man whose social interactions were limited; that there was a question as to whether the respondent suffered from attention deficit hyperactivity disorder; and that there were in evidence “heartfelt” references from many persons, including the parents of the respondent, along with a similarly described letter of apology from the respondent.
The respondent gave evidence in the defence case on 10 November 2017. In evidence-in-chief, he spoke of being “pretty sorry”, and “disgusted at the position” he had got himself into (proceedings on sentence transcript (POST) 10.49). He explained that the offences occurred when a man who used to sell him marijuana “asked me if I’d help him out to get a bit of marijuana, borrow his car if I helped him out” (POST 12.7). He spoke of that person asking him to pick up a suitcase of marijuana from one location, and driving it to another. He explained that his fee would be “a quarter of weed”, which he estimated to be worth about $80 (POST 12.11 and following). He denied ever opening the suitcase, or touching the keys to it (POST 13). He confirmed on oath that his statement on arrest “I thought it may be bud” was the truth (POST 13.47). He agreed that he had lied to the police out of fear when he said that he did not know the person for whom he was transporting the suitcase. His evidence was that he was “shocked to see the quantity of hard drugs in that suitcase” (POST 15.2).
The respondent was cross-examined to the effect that it was false for him to suggest that a drug dealer, with whom he had been in contact for only a month or so, would entrust to him a suitcase, the contents of which were worth well over $1 million (POST 18.41).
The evidence of the respondent was also impugned on the basis that it was not to be believed that he would undertake this criminal task for the paltry reward of cannabis worth $80 (POST 21.33). He was also cross-examined about the presence of the Blackberry in the Lancer, and the presence of the paperwork and packaging for that device located in the safe at his home (POST 23 and 24).
The cross-examination concluded with repetition of the proposition that the respondent was not telling the truth about “agreeing to drive this, what you thought was a suitcase of cannabis across town for $80 worth of cannabis”. The respondent denied that he was lying (POST 26.7).
In subsequent discussion between Bench and Bar table, the Crown seemingly conceded that the presentation in the witness box of the respondent was important to the assessment of his sophistication (POST 27.34 and following). The Crown also accepted that it was open to the sentencing judge to “find it difficult to be satisfied that [the respondent] believed it was anything but a suitcase of marijuana” (POST 27.50 and following). The Crown also accepted that what the respondent believed he was doing was “a significant matter when you’re assessing the objective seriousness” (POST 28.32).
Having made all those concessions, the Crown made it clear that its position was that no sentence other than one of full-time imprisonment was appropriate (POST 28.39 and following).
Ultimately, and contrary to the submission of the Crown, his Honour referred the respondent for assessment as to his suitability for the making of an Intensive Correction Order (ICO). Underpinning that step was, of course, the assessment by the sentencing judge that a head sentence of two years or less was a possibility.
In due course, the assessment was found to be favourable. On 13 December 2017, again contrary to the continuing submission of the Crown, his Honour imposed for the two offences a cumulative head sentence of imprisonment for two years, and ordered that it be served by way of an ICO.
The Crown promptly appealed against that sentence to this Court. The ground initially notified was that the sentence pronounced was manifestly inadequate. Later, further grounds were relied upon, as follows (I have numbered them as they appear in the Crown written submissions):

Ground one: His Honour erred in finding that the respondent thought that he was transporting cannabis although he did not know how much.

Ground two: His Honour erred in finding that the objective criminality of the offences was near the bottom of the range.

Ground three: His Honour erred in applying a 25% discount for the respondent’s late plea of guilty.

Ground four: The individual sentences and overall sentence are manifestly inadequate.

Underlying issue

To recap: the respondent was to be sentenced for two offences, each of which carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The quantity of the cocaine was more than double its applicable large commercial quantity, and the quantity of the MDMA was far beyond that figure. The value of the two prohibited drugs was something in the order of $1,450,000. And yet a cumulative sentence of two years was imposed. Even more notably, that sentence had no component of full-time custody. In my respectful opinion, such an outcome is prima facie suggestive of error, by way of manifest inadequacy of sentence. How did such a sentence come to be imposed?
The answer is to be found in the position of the respondent, foreshadowed by what he told police on arrest, and confirmed by him on oath in the proceedings on sentence.
His position – accepted by the sentencing judge – was that he did indeed possess for supply a large commercial quantity of the two prohibited drugs, in terms of their objective weights. But, as I have recounted, he believed that the contents of the suitcase were the prohibited drug cannabis leaf, not the prohibited drugs ecstasy and cocaine. On that basis, he pleaded guilty to the two counts alleging supply of a prohibited drug. And he pleaded guilty to the two counts alleging supply of a large commercial quantity thereof, on the basis that he was aware that the suitcase contained more than the large commercial quantity, in terms of the two weights, of ecstasy and cocaine.
It will be recalled that the large commercial quantity of ecstasy was 0.5 kilograms, and the large commercial quantity of cocaine was 1 kilogram. I interpolate at this stage for the convenience of the reader that, as at the date of the offences, Schedule 1 of the Act stated that the large commercial quantity of cannabis leaf was 100 kilograms.
In other words, the position of the respondent at first instance, and sought to be maintained by senior counsel (who appeared both at first instance and on appeal) on his behalf on the Crown appeal, was that the pleas of guilty of the respondent to the two counts – founded as they were upon an intention to involve himself in the supply of the incorrect drug, but believing that the suitcases contained more than the large commercial quantity of the correct drugs – were legally apposite.
The correctness or otherwise of that legal proposition is, in my opinion, central to the disposition of this Crown appeal.

Legal principle

In discussing that controversy, I believe that it is useful to set out some basic propositions.
First, a person charged with supply of a prohibited drug (or an analogous offence pursuant to the Act) is guilty of that offence even if the drug actually supplied was different from the prohibited drug the offender believed the substance to be: see Dunn v The Queen (1986) 32 A Crim R 203, referred to as recently as in Siafakas v R [2016] NSWCCA 100.
In other words, a person charged with the supply of heroin cannot escape liability, even if the drug on analysis is found objectively to be heroin, but the offender sincerely believed it to be cocaine.
Secondly, in order to prove an offence pursuant to the Act that is aggravated by the subject matter of the offence being a commercial quantity or a large commercial quantity of the prohibited drug in question (whether by way of the creation of an aggravated offence by s 25(2), or the seeming creation of a circumstance of aggravation on sentence, pursuant to s 33(3)(a) of the Act), it is incumbent upon the prosecution to prove not only an intention to do the prohibited act (such as supply, manufacture or cultivate), but also an intention to do so with regard to that alleged quantity: see R v CWW (1993) 32 NSWLR 348; 70 A Crim R 517; Sheller JA (Allen J agreeing) at 355; Smart J at 357. That proposition has been confirmed many times by this Court over the past 25 years.
Thirdly, the second proposition does not apply to Commonwealth offences to do with, for example, importations of illicit substances: see Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, and s 307.1(3) and s 307.2(3) of the Criminal Code Act 1995 (Cth). The structural reasons for that inconsistency of approach between state and federal offences do not need to be further explored now.

Application of principle to this appeal

Applying those propositions to the integrity of the plea entered here, it can be seen that, as a matter of analysis of discrete steps, the above principles have been the subject of compliance. I say that because, on his evidence, the respondent did indeed believe that he was possessing for supply a suitcase that contained cannabis leaf, a prohibited drug. And one can readily accept that he was aware that the contents of the suitcase weighed more than the combined large commercial quantity of the prohibited drugs ecstasy and cocaine; that is, 1.5 kilograms.
But I cannot accept that the correct way to analyse this situation is by way of discrete, unconnected facts or factors. In other words, I do not believe that, in analysing liability for this offence, the focus upon what was in the mind of the offender can shift from, as a primary step, the incorrect drug, and as the next step, the applicable quantity for the correct drug or drugs.
My research suggests that this particular question has not been squarely placed before this Court before. Nor did the parties to the appeal refer us to any decision that authoritatively solves the conundrum. Having said that, in the recent decision of this Court in Yousef Jidah v R [2014] NSWCCA 270, it was said at [34]:

“The elements of the offence under s 25(2) of the DMT Act, applicable to this case, were that the appellant attempted to obtain possession of what he believed to be a prohibited drug, for the purposes of supply in an amount not less than the large commercial quantity applicable to that drug. To establish the count, it was necessary for the prosecution to prove that the appellant attempted to take possession of the drug for the purposes of supply, knowing or believing that the substance in the 45 boxes was a prohibited drug of not less than a large commercial quantity.”

That passage was referred to with approval in Siafakas at [41], and Alhassan v R [2017] NSWCCA 73 at [19].
In my opinion, that passage suggests that the drug that one intends to supply, and the drug, the aggravated quantity of which one intends to supply, must be identical. On the other hand, the word “that” in the fourth line of that extract is arguably equivocal. And, in any event, the focus of that appeal was not upon this particular legal question.
Speaking more generally, the correctness of the analysis of senior counsel for the respondent may be tested by considering an extreme hypothetical example, which is founded on the different natures and different weights of two drugs that are prohibited by the Act.
A person is tasked with transporting a satchel, the contents of which weigh 3 grams. Those contents are in fact a large number of pieces of blotting paper that contain many tens of thousands of doses of the powerful hallucinogen LSD, worth a great deal of money. The large commercial quantity to be found in the Schedule of the Act with regard to Lysergic acid and its hallucinogenic derivatives is 0.002 kilograms; that is, 2 grams.
The person who transports the satchel is arrested, and pleads guilty to a count averring the supply of a large commercial quantity of a prohibited drug; namely, LSD.
On sentence, the hypothetical offender gives evidence that he or she believed the satchel to contain no more than 3 grams of cannabis. As I have said, the large commercial quantity of cannabis leaf is 100 kilograms. On the other hand, the “small” quantity of cannabis appears in the Schedule as 30 grams. In other words, 3 grams of cannabis leaf is 1/10 of the quantity below which the offence of supplying cannabis is a Table 2 offence, which is to be disposed of summarily unless the prosecution elects otherwise.
The submission is made on sentence by defence counsel that such an offence would almost inevitably be dealt with summarily, and furthermore would almost inevitably result in a non-custodial sentence. Emphasis is placed upon the modern focus on subjectivism in the criminal law; that is, only punishing offenders for what they actually intended to do. The contention is that the offence should be dealt with by way of a $500 fine.
And yet, in the hypothetical example, as here, the offender has pleaded guilty to an offence that carries a maximum penalty of life imprisonment, and a standard non-parole period of 15 years.

Turning to the obverse side of the coin, the submission is made on sentence by the Crown that the hypothetical offender has pleaded guilty to an offence carrying a maximum penalty of life imprisonment, and is liable to condign punishment of imprisonment for many years, even though the Crown accepts that the offender actually believed that he or she was possessing for supply only a very small amount of cannabis, worth a paltry sum.
One instinctively resiles from both of those outcomes – a wrongfully lenient sentence, or a wrongfully harsh one – as bordering on the absurd. And in my opinion, that reaction argues powerfully for the proposition that, in truth, a hypothetical offender who has admittedly done what I have described is not guilty of the offence under consideration.
As my example shows, any disparity between the nature, the weight, and the potency relative to mass of two or more prohibited drugs, all of which one can infer are reflected in the Schedule, would lead to anomalous results if the legal analysis of senior counsel for the respondent is correct. The anomaly is marked between drugs such as ecstasy and cocaine and cannabis leaf, and extremely marked between drugs such as LSD and cannabis.
I cannot accept that the anomalous result for which senior counsel contends is a correct reading of what Parliament objectively intended by way of the structure of the Act.
Quite apart from the line of reasoning based on my extreme example, the matter may be thought of more simply, as follows. The position of the respondent was that he believed that he possessed for supply something more than 1.5 kilograms of cannabis. The large commercial quantity of that prohibited drug, to repeat, is 100 kilograms (in fact, because there were two counts pertaining to the contents of the suitcase, it is at least arguable that the applicable weight was 200 kilograms of cannabis). And it is to be recalled that the combined weight of the ecstasy and cocaine was no more than 24 kilograms. All that the respondent intended to possess for supply was something over 1.5 kilograms of cannabis, nothing more. In other words, on his evidence, the respondent never intended to possess for supply more than the large commercial quantity of a prohibited drug.
In short, I do not believe that the pleas of guilty were properly entered, due to what I respectfully regard as a faulty legal analysis of the elements of the two offences, with particular focus upon the mental element with regard to the large commercial quantity.
To express that another way, in my opinion the evidence given in the proceedings on sentence by the respondent traversed the validity of his two pleas of guilty.
That is because, to state my approach succinctly, I respectfully apply what was said in Jidah: for the respondent to be guilty of the offence in question, he needed to believe that the suitcase contained a prohibited drug, and for him to believe that it contained not less than the large commercial quantity applicable to the drug that he believed it to be.
The question then arises: how should this Court dispose of the Crown appeal, no application having been made before us for withdrawal of the pleas of guilty? Should the four grounds relied on by the Crown simply be determined on their merits?

Disposition

At first instance, the Crown submitted that the sentence imposed by the sentencing judge was an error. As I have recounted, the Crown also cross-examined the respondent with an eye to demonstrating that he did not believe that the contents of the suitcase were cannabis.
However, neither the Crown at first instance nor the sentencing judge raised the question of legal principle that I have discussed above. In particular, no one invited attention to whether there was any disjunction between the pleas of guilty and the evidence of the respondent.
As a result, the proposition that it was patently absurd for the respondent to have believed that the suitcase contained 100 kilograms (or indeed perhaps 200 kilograms) of any substance was neither put to him in cross-examination nor raised with or by his Honour.
In those circumstances, I consider that it would be a denial of procedural fairness to the respondent simply to proceed with the Crown appeal in order to determine conclusively whether the sentence imposed was indeed manifestly inadequate. That is especially the case in light of the fact that senior counsel for the respondent explained to us that the pleas were entered in the District Court in accordance with his analysis of the necessary mental elements of the offences.
In my opinion, the better course is simply to reject the pleas of guilty in light of the evidence of the respondent that was inconsistent with those pleas, quash the convictions, and return the outstanding allegations to the trial list of the District Court. In light of the unfortunate procedural history of the matter, one might respectfully expect that the proceedings will attract expedition.

Orders

I propose the following orders:

(1) The two pleas of guilty entered by the respondent, Ethan Alexander Busby, are rejected.

(2) The convictions entered against, and sentences imposed upon, the respondent by Acting Judge Armitage are quashed.

(3) The two outstanding charges against the respondent are remitted to the District Court for trial.

*********

Amendments

09 July 2018 - Amended numbering in order 2 on cover page.

Decision last updated: 09 July 2018

Medium Neutral Citation:	R v Busby [2018] NSWCCA 136
Hearing dates:	4 May 2018
Decision date:	06 July 2018
Before:	Hoeben CJ at CL [1] Walton J [2] Button J [3]
Decision:	(1) The two pleas of guilty entered by the respondent, Ethan Alexander Busby, are rejected. (2) The convictions entered against, and sentences imposed upon, the respondent by Acting Judge Armitage are quashed. (3) The two outstanding charges against the respondent are remitted to the District Court for trial.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – asserted manifest inadequacy and other asserted errors – underlying issue – evidence of respondent on sentence inconsistent with pleas of guilty– requisite mental element with regard to quantity in state drug offences – pleas of guilty rejected – convictions and sentences imposed upon the respondent quashed – remitted to District Court for trial
Legislation Cited:	Criminal Code Act 1995 (Cth) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Alhassan v R [2017] NSWCCA 73 Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248 Dunn v The Queen (1986) 32 A Crim R 203 R v CWW (1993) 32 NSWLR 348; 70 A Crim R 517 Siafakas v R [2016] NSWCCA 100 Yousef Jidah v R [2014] NSWCCA 270
Category:	Principal judgment
Parties:	Regina Ethan Alexander Busby
Representation:	Counsel: B Hatfield (Crown) I Lloyd QC (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Criminal Defence Group (Respondent)
File Number(s):	2015/337189
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 13 December 2017 Before: Acting Judge Armitage File Number(s): 2015/337189