R v Califano - [2002] SASC 320

R v CALIFANO
[2002] SASC 320
Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ

DOYLE CJ: The Commonwealth Director of Public Prosecutions applies for leave to appeal against a sentence imposed on the respondent by the District Court.
The respondent pleaded guilty in the District Court to a charge of importing a prohibited import contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The particulars of the offence are that between about 10 November 2001 and 23 November 2001 at Adelaide Mr Califano imported into Adelaide a prohibited import to which s 233B of the Customs Act applies. The prohibited import is described in the particulars as “not less than the commercial quantity of gammabutyrolactone”, which is an ester of 4-Hydroxybutanoic acid. The substance is commonly known as GBL, and I will refer to it as GBL.
The effect of the Customs Act and of Regulations under the Act is that GBL is a narcotic substance. One kilogram or more is deemed to be a commercial quantity.
The maximum penalty which this offence attracts is imprisonment for life or a fine of a maximum of $750,000 or both.
The Judge exercised the power conferred by s 19B of the Crimes Act 1914 (Cth) and, without proceeding to a conviction, discharged Mr Califano upon him giving security, by his own recognisance in the sum of $1,000, to be of good behaviour for a period of one year, and to appear for conviction and sentence if called upon at any time to do so.
That sentence may seem surprisingly light, having regard to the maximum penalty. But an understanding of the circumstances of the offence puts matters in a different light.
Mr Califano is 26 years of age. He has committed no relevant prior offences. Mr Califano was apparently involved in what is called “body building”. GBL is a dietary supplement that will enhance muscle growth. Mr Califano imported it from Canada, where it is lawful to sell GBL and where it is freely available. It is, however, a prohibited import in Australia.
Mr Califano ordered it through the Internet. He made no attempt to conceal what he was doing. The quantity that he purchased cost him US$300 and was charged to his Visa account. He ordered and purchased the GBL as if it was a normal transaction.
It was posted to his home address.
The website of the supplier, Camark Chemicals, did not show that GBL is a prohibited import in Australia. Mr Califano took this at face value and made no further enquiry.
For the purposes of sentence, the Director accepted that Mr Califano did not know that it was unlawful to import GBL. He pleaded guilty and was sentenced on the basis that he had been reckless as to whether it was a prohibited import. I take that to mean that Mr Califano was aware of the likelihood that GBL was a prohibited import, in the sense of there being a real chance that it was…

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 R v Califano

Details

AGLC: R v Califano [2002] SASC 320
Case: [2002] SASC 320
Decision Date: 4 October 2002

CaseChat Overview and Summary

In the case of R v Califano, the Commonwealth Director of Public Prosecutions sought leave to appeal against the sentence imposed on Mr Califano by the District Court. Mr Califano pleaded guilty to importing a prohibited substance, GBL, into Adelaide under the Customs Act 1901. The maximum penalty for this offence is imprisonment for life or a substantial fine. However, the District Court Judge discharged Mr Califano under s 19B of the Crimes Act 1914, without proceeding to a conviction, on the basis of his good character, lack of prior offences, and the extenuating circumstances of the offence.

The key legal issue before the Court of Criminal Appeal was whether the Court should grant leave to appeal to the Director to consider increasing the sentence. The Court considered whether the sentence was so inadequate that it would be contrary to the public interest to allow it to stand, or whether it involved an error of principle. The Director argued that the Judge had erred by describing the offence as one of naivety rather than criminal intent, and that the sentence was too lenient given the seriousness of the offence.

The Court found that while the sentence was lenient, it did not involve an error of principle or undermine public confidence in the administration of justice. The Court acknowledged that the offence was serious and that a heavier sentence was warranted, but concluded that the case was atypical and that the error made by the Judge did not justify granting leave to appeal. The Court observed that the case did not involve an issue of sentencing principle, nor did it call for the establishment of a sentencing standard.

The Court of Criminal Appeal, comprising Doyle CJ, Wicks, and Besanko JJ, unanimously refused leave to appeal. The Court held that the sentence was lower than it should have been, but that there was no error sufficient to justify the grant of leave to appeal. The Court's decision reflects a cautious approach to granting leave to appeal, emphasizing the importance of distinguishing between cases where the sentence is so inadequate as to warrant appellate intervention and those where the sentence is simply lenient.

Orders