R v Califano

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 a prohibited import: see Kural v The Queen (1987) 162 CLR 502 at 505.
It was also accepted by the Director that Mr Califano imported the GBL for his own use. There was no suggestion that he was intending to supply it to any other person.
When spoken to by police Mr Califano made no attempt to disguise what he had done. He made full admissions and was completely cooperative.
The Judge recognised that importation of a prohibited import is a serious offence. However, he took the view that there were very significant mitigating circumstances. I have touched on them already. In particular, Mr Califano did not know that what he was doing was unlawful, acted completely openly, was fully cooperative, and no doubt the Judge also had regard to the fact that the GBL was intended to be used for “body building”. The Judge described the offence as one that smacked of naivety rather than criminal intent.
That was why the Judge imposed the very moderate sentence that he did.
The first question that the Court must consider is whether leave to appeal should be granted.
The Court does not grant leave to appeal to the Director merely to correct an error by the sentencing Judge. In accordance with well established principles, the Court will grant leave to appeal to the Director, with a view to increasing a sentence, only if it is appropriate to do so to correct an error of principle, to establish or to maintain an adequate sentencing standard, or because in the particular case the sentence is so inadequate that, to allow it to stand, would clearly be contrary to the public interest. I recognise the element of impression in that formulation. The latter category of cases embraces cases in which there is such a marked disparity between the appropriate sentence and the sentence imposed that the case involves more than correcting error, and becomes one of maintaining public confidence in the administration of criminal justice.
The Judge exercised the power under s 19B having regard to Mr Califano’s good character, his good antecedents and his age, and also having regard to the fact that the offence was committed under extenuating circumstances.
I consider that the facts entitled the Judge to make a finding that a basis for the exercise of the power under s 19B had been made out. It does not follow that it was appropriate to exercise the power.
In support of the application, the Director argued that the Judge erred in referring to the offence as one that smacked of naivety rather than criminal intent. The Director submits that this is inconsistent with the respondent’s acknowledgement that he knew it was likely that he was importing a prohibited import.
I do not accept the submission. The Judge was referring to naivety on the part of the respondent that resulted in him acting recklessly. The respondent did not know that he was offending. He was naïve in the sense that, as he acknowledged by his plea, he should have made enquiries, realising the likelihood that the substance was a prohibited import. The sentencing Judge’s remark also, no doubt, reflects the fact that there is no suggestion that the respondent was intending to put the substance to some further use that had criminal aspects. He was sentenced on the basis that he would use it for body building.
The Director also refers to the fact that GBL can be used to make the drug commonly known as Fantasy. The possession, sale and use of this drug is unlawful, and cases coming before the Court suggest that its use is prevalent. But, as I have said, there is no suggestion that the respondent was planning to convert the GBL into Fantasy. No doubt its potential use is the reason, or one of the reasons, why GBL is a prohibited import. But to say this is to do no more than reflect a reason why it is a prohibited import.
I do not accept the submission that the Judge overlooked the fact that his finding that a basis for the exercise of the powers under s 19B had been made out was not, in itself, sufficient to justify the exercise of those powers. As s 19B(1) makes plain, the exercise of the powers under that provision depends upon the sentencing judge concluding that, having regard to the matters identified in s 19B(1)(b) it is:
“… inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation …”.
I accept that an order made under s 19B is an order for the purposes of s 16A of the Crimes Act 1914 (Cth), and accordingly the making of the order requires also that the matters set out in s 16A(2) be taken into account. But there is nothing in the Judge’s sentencing remarks to suggest that he overlooked any of this.
For those reasons, I do not consider that the points argued by the Director lead to the conclusion that the Judge erred. That leaves the question of whether, having regard to the matters referred to by the Judge and to the sentence imposed, there was or may have been an error such that leave to appeal should be granted with a view to considering whether there was an error, and whether the Court should interfere.
I consider that leave to appeal should be refused.
The sentence was a lenient one. I consider that a heavier sentence was appropriate, having regard in particular to the seriousness of the offence of importing a prohibited import. The seriousness of the offence is indicated by the maximum penalty. That penalty has been increased by Parliament in recent years. I accept that the increase in the penalty reflects community concern about offences involving unlawful drugs. It is widely recognised that unlawful drugs are the cause of a great deal of harm to members of the Australian community, and inflict very heavy costs on the community. It is also well known that the use of unlawful drugs is widespread. That is why, in recent times, Parliaments in Australia have often increased the penalties applicable to such offences, and that is why the Courts have been imposing heavy penalties for these offences.
The offence for which the respondent was convicted was a very serious offence. The fact that it was committed recklessly rather than deliberately, and the substantial mitigating factors to which the Judge referred (not all of which I have set out above) do nothing to detract from the intrinsic seriousness of the offence. The matters to which the Judge referred were capable of justifying an unusually lenient sentence for this offence, but in my opinion the intrinsic seriousness of the offence, coupled with the respondent’s recklessness, required a heavier penalty than that which the Judge inflicted. I consider that a conviction and fine were called for, at the least. I do not go so far as to say that a sentence of imprisonment was required in the present case, and as the Director acknowledged, if such an order had been made it would have been appropriate to make an order for immediate release under s 20(1)(b) of the Crimes Act.
Although I consider that the Judge erred, it does not follow that leave to appeal should be granted.
The error that I respectfully consider the Judge made was in the exercise of the discretion that was enlivened by the Judge’s finding. The case does not raise any separate issue of sentencing principle. The failure of the Judge to make adequate allowance for the intrinsic seriousness of the offence is not, of itself, an error of principle. It is merely a matter that led the Judge to take an unduly lenient view of the appropriate sentence. The offence in question is not a typical instance of offences of this kind. The case is one in which there is much more scope for leniency than would usually be the case with an offence of this kind. Accordingly, I do not consider that there is an issue of principle that arises here. Nor is this a case that calls for the Court to establish a sentencing standard, or to ensure that an existing standard is adhered to. The case is atypical. I do not consider that the sentence can be said to be so low as to diminish public confidence in the administration of criminal justice, even though a higher sentence should have been imposed.
For those reasons, in my opinion this is not an appropriate case in which to grant leave to the Director to appeal. It suffices to record that the sentence was lower than it should have been, and to take the matter no further.
For those reasons I would refuse leave to appeal.
WICKS J: I agree.
BESANKO J: For the reasons given by the Chief Justice, I agree that leave to appeal should be refused. I agree that the sentence was lower than it should have been, but that there is no error sufficient to justify the grant of leave.

[2002] SASC 320

4 October 2002