R v Corbett

[2008] NSWCCA 42

Reported Decision: 181 A Crim R 522

New South Wales

Court of Criminal Appeal

CITATION:	R v Andrew Charles CORBETT [2008] NSWCCA 42
HEARING DATE(S):	28 September 2007
JUDGMENT DATE:	4 March 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 2; Harrison J at 11
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - Crown appeal - sentence imposed upon respondent in relation to two charges of attempting to import a border controlled drug, namely gammabutyrolactone, being a commercial quantity, contrary to ss 11.1(1) and 307.1 in Part 9.1 of the Criminal Code Act 1995 - maximum penalty of life imprisonment and/or a fine of $825,000 - plea of guilty - sentence on first count to 150 hours of community service and on second count to 360 hours of community service to be served concurrently – statutory regime distinguishing between drugs in prescribing the threshold trafficable and commercial quantities, but otherwise without distinction as to applicable maximum penalties - trial judge erred - no scope for judicial or forensic enquiry about individual characteristics of any of the listed substances except by reference to quantity - seriousness of an offence relating to a border controlled drug should be determined by reference to statutory provisions relating to it, rather than by some comparison with other border controlled drugs - sentences inadequate - harsh and unfair to subject respondent to more severe penalty even in circumstances where error is demonstrated - exercise of Court’s residual discretion not to interfere
LEGISLATION CITED:	Criminal Appeal Act 1912 Criminal Code Act 1995 Customs Act 1901 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005
CATEGORY:	Principal judgment
CASES CITED:	Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 House v The King [1936] HCA 40; (1936) 55 CLR 499 R v AA [2006] NSWCCA 55 R v Adams [2007] VSCA 37 R v Dang [2005] NSWCCA 430 R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 R v Hicks (1987) 45 SASR 270 R v Holder [1983] 3 NSWLR 245 R v Horne [1999] NSWCCA 391 R v Kyroglou [1999] NSWCCA 106 R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493 R v Pidoto [2006] VSCA 185; (2006) 14 VR 269 R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284 R v To [2007] NSWCCA 200 R v Wall [2002] NSWCCA 42 R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436 Wong & Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
PARTIES:	Regina (Appellant) Andrew Charles Corbett (Respondent)
FILE NUMBER(S):	CCA 3319/2007
COUNSEL:	W J Abraham QC (Appellant) P Byrne SC and S C Russell (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Appellant) Bruce Stewart Dimarco Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/1055
LOWER COURT JUDICIAL OFFICER:	Bell DCJ
LOWER COURT DATE OF DECISION:	24 May 2007 (date of sentence)

3319/2007

McCLELLAN CJ at CL
HULME J
HARRISON J

4 March 2008

Regina v Andrew Charles CORBETT

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgments of Hulme and Harrison JJ. I agree with the orders proposed by Harrison J and generally with his Honour’s reasons. In my opinion it is not necessary to resolve in this appeal whether the court should take the same approach as has been taken by the Victorian Supreme Court in R v Pidoto [2006] VSCA 185; (2006) 14 VR 269 which is discussed by Hulme J. Presumably these matters will be resolved when the High Court considers the appeal in R v Adams.

2 HULME J: I agree with the order proposed by Harrison J and, subject to the following remarks, with his Honour's reasons.

3 The passage quoted by his Honour from the judgment of Wood CJ at CL in R v Wall [2002] NSWCCA 42 is a pithy and convenient guide to the principles that govern this Court's approach to Crown appeals. It is sufficient for the purposes of this case. However, the passage does not reflect some authority which the Court in R v Wall did not purport to overrule, and some of which it could not: For the reasons I set forth in R v AA [2006] NSWCCA 55 at [4]–[20], the passage should not be regarded as a comprehensive and accurate statement of the relevant principles.

4 Secondly, in the course of urging this Court to find error in, and presumably in the use of, a statement by Bell DCJ to the effect that, "GBL is a drug of a lesser order than the so called 'hard drugs' ", the Crown urged on the Court an approach taken in the Victorian Supreme Court in R v Pidoto (supra) and R v Adams [2007] VSCA 37 at 15. The approach is exemplified in the following statement from the first of these cases:-

"3. As a matter of statutory construction the harmfulness of drugs is irrelevant to the exercise of the statutory discretion.

39. In short, the whole structure of the trafficking provisions and the very precise content of the relevant columns in schedule 11, leads inevitably to the conclusion that other things being equal, trafficking in a commercial quantity of drug of dependence A is not more nor less serious than trafficking in a commercial quantity of drug of dependence B."

5 In R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284, this Court did not take such an absolute approach. With the concurrence of Ipp JA and Bell J, I said:-

"43. While the situation may well be different if the statutory provisions took a different form, given the particularity of quantities which place a drug in one or other of categories for which different penalties are provided, it seems to me that the seriousness of an offence relating to a particular drug is to be judged primarily by the statutory provisions relating to it rather than by some impression, whether or not based on evidence in the particular or other cases, of how deleterious that drug is in comparison with others. Thus the seriousness of an offence relating to MDMA should be determined by reference to the statutory provisions relating to it, rather than by some comparison with heroin or cocaine.

45. Nothing I have said is intended to suggest that the harmfulness of particular drugs as known to the courts through evidence or matters of which the Court may take judicial notice is not a relevant consideration just as, for example, an alteration in the frequency of offences of a particular type is. In that connection, statements as to where in the spectrum of illegal drugs, a particular drug falls, based no doubt on substantial judicial experience as to the impact of drugs falling within one category or another, have the potential to assist the sentencing process. Any departure from accepted wisdom in this regard may well be an indication of error and inspire a careful look at any sentence which follows. However, with respect to the remarks of Hidden J in R v Spillane, such statements are not propositions of law, departure from which, of itself, constitutes error. A fortiori is this so if the judicial characterisation differs from the clear implication to be found in the particular statutory provisions under which a charge is preferred."

6 R v Poon has been regularly cited since and although there are statements in later cases not perhaps as qualified as those quoted – see e.g. the passages quoted by Harrison J from R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493, R v Dang [2005] NSWCCA 430 and R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436 - the Crown was unable to refer the Court to any statement to the effect that the formulation of the relevant principles in R v Poon is wrong. As presently advised I see no reason to think that it is. Consideration of two other areas of sentencing reinforces my conclusion.

7 From time to time particular offences have become more common, either throughout the state or in particular towns or parts of it. It is an accepted practice for criminal courts to respond to such increases in offending of a particular type by increasing sentences for such offences and this without any change to the legislative proscription of the conduct or any increase in the penalty prescribed. I acknowledge that the topic of the frequency of offending may not be intended to be encompassed within references to the "harmfulness of the drug". However, one would have expected that Parliament in setting the penalties and quantities that it has would have reflected in them not merely any undesirable physical consequences of the use of a particular drug but also matters such as the impact of the drug in terms of the ease and frequency of dealings in it and the magnitude of the rewards for doing so.

8 Secondly, it is not uncommon in provisions of the New South Wales Crimes Act to find a reference to "aggravating circumstances", a definition of such circumstances so as to include conduct or events of disparate types, and the imposition of higher maximum penalties if any of those circumstances are present. But the fact that such an increased penalty is attracted whichever of the circumstances of aggravation is present has not led the courts to the conclusion that each should be judged as harmful as the others and an offence involving one as inherently as serious as an offence involving another. Of course, section 314.4 and similar schedules in other statutes in their references to quantities include a degree of definition not generally possible when circumstances of aggravation are being discussed and regard must be had to that definition. Nevertheless it does not seem to me that the definition leads to the conclusion that sentencing courts are required to depart from the degree of flexibility they adopt in other circumstances. So long as the statutory provisions are given primary attention, other factors may be taken into account in judging the seriousness of dealing in one type of drug rather than another. Thus I do not agree with the statement of Harrison J that, "As soon as a particular substance reaches a particular marketable or commercial quantity, it is to be treated, for the purposes of the Criminal Code, as being identical to every other substance in the schedule of a marketable or commercial quantity respectively".

9 (Since the appeal in this matter was heard the High Court has given special leave to appeal from the decision in R v Adams and which was substantially based on the approach taken in the passages I have cited from R v Pidoto.)

10 In the instant case, though recognising that the importation of a commercial quantity of GBL was liable to result in a life sentence, Bell DCJ's observation that "GBL is a drug of a lesser order than the so called 'hard drugs' " was unsupported by any evidence and nothing was put before this Court to lead to the conclusion that it was something of which his Honour could take judicial notice. His Honour's approach to this topic was thus erroneous.

11 HARRISON J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed upon the respondent in relation to two charges of attempting to import a border controlled drug, namely gammabutyrolactone, being a commercial quantity, contrary to ss 11.1(1) and 307.1 of the Criminal Code Act 1995. The maximum penalty for each offence is life imprisonment and/or a fine of $825,000.

12 The grounds of appeal were that the sentence imposed was manifestly inadequate, together with four grounds identifying specific errors said to have been made by the sentencing judge. These are referred to later in more detail below.

13 On 19 April 2007 the respondent pleaded guilty. On 24 May 2007 he was sentenced on the first count to 150 hours of community service and on the second count to 360 hours of community service to be served concurrently.

Background

14 On 4 June 2006 the Australian Customs Service intercepted a package addressed to the respondent at the Clyde International Mail Handling Unit containing 1.120kg of pure gammabutyrolactone ("GBL"). On 28 July 2006 a second package addressed to the respondent containing 2.788kg of pure GBL was intercepted.

15 Police investigations revealed that the respondent was the lessee of a Post Office box to which both packages were addressed. His mobile telephone number was recorded as a contact telephone number on the second package. On 10 August 2006 police executed a search warrant at the respondent's premises. During that search 50 small vials containing yellow, green and red liquids and traces of liquid were located, together with a bottle containing approximately 20ml of a green liquid. These vials were packaged in four sealed bags containing six vials each, with the four bags bundled together in a larger sealed bag. Subsequent analysis revealed that the bottle and all the vials contained GBL.

16 In an interview with police the respondent said that he regularly consumed GBL, using 12 to 15 2ml vials over a weekend. He said that all the vials belonged to him. In May 2006 he had ordered one litre of GBL over the internet from Liquid Soap in the United Kingdom and the order was sent to his Post Office box. When this order did not arrive, the respondent complained to Liquid Soap and subsequently received a shipment of about one litre of GBL. This package was not intercepted.

17 The respondent kept half a litre for his own use and that of his friends and associates, and gave the other half to the person who had told him how to order GBL over the internet. He then ordered 2.5 litres of GBL from Liquid Soap but it did not arrive. This shipment was intercepted. He paid for the GBL using his credit card. He had previously purchased GBL from other people for $25-$30 per vial. He knew that when he ordered GBL he was breaking the law.

18 The quantity of the first attempted importation was 1120g of GBL, which is approximately 560 vials. At a street price of $20-$30 per vial, it had a value of approximately $11,200 - $16,800. The quantity of the second attempted importation was 2788g, which is approximately 1394 vials of GBL. The value of that quantity was approximately $27,880 - $41,820.

Crown appeals

19 The principles governing appeals by the Crown were summarised by Wood CJ at CL in R v Wall (supra). His Honour said at par [70]:

"[70] The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s 19B of the Crimes Act 1914 . Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:



(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle “ for the governance and guidance of courts having the duty of sentencing convicted persons ”: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62."

20 In addition to these principles, it is important to have regard to the further restraint upon interference "given the strong resistance that exists against appellate 'tinkering' with sentences" identified in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at par [62].

Grounds of Appeal

21 The Crown submitted that the sentence imposed upon the respondent was manifestly inadequate. In addition, the Crown alleged that the sentencing judge erred in the following specific respects:

21.1 In failing to have proper regard to the legislative structure of Part 9.1 of the Criminal Code Act 1995 in determining the seriousness of the offence, as opposed to his view of the perceived harm and/or prevalence of the drug.

21.2 By determining that the respondent's criminality was less serious because GBL was a drug at "the lower end of the range".

21.3 By failing adequately to take into account the maximum penalty for the offence.

21.4 By taking into account matters irrelevant to the sentencing process.

Crown submissions

22 The first three of these grounds can conveniently be dealt with together.

23 Until 5 December 2005 the importation of narcotic goods was prohibited by s 233B of the Customs Act 1901. Section 4(1) of that Act defines "narcotic goods" as "goods that consist of a narcotic substance". Section 4(1) defined "narcotic substance" as a substance or thing included or described in Column 1 of Schedule VI of the Act or any other substance or thing declared by the regulations to be a narcotic substance. GBL was not identified in Schedule VI.

24 On 6 December 2005 the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 came into effect. The consequence of the amendment with respect to narcotic substances was to move the offence provisions from the Customs Act to the Criminal Code Act 1995. The Code offences relate to "a border controlled drug" as opposed to "narcotic goods". Section 302 defines "border controlled drug" as a substance listed or described as a border controlled drug in section 314.4. GBL is listed as item 72.

25 The structure of Part 9.1 of the Criminal Code Act 1995 is the same as the Customs Act. It distinguishes between drugs in prescribing the threshold trafficable and commercial quantities, but otherwise makes no distinction as to the applicable maximum penalties. This type of regime is founded upon the legislature having made its own differentiation between various border controlled drugs (narcotic substances) in deciding upon trafficable quantities and commercial quantities of those that have been designated as a prescribed border controlled drug. According to the Crown's submission, it is not in these circumstances appropriate for a sentencing judge to superimpose a further differentiation between substances onto this regime.

26 In R v Dang (supra) at [29], this Court concluded:

" …This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: R v Nai Poon (2003) 56 NSWLR 284; R v Neale (2004) 148 A Crim R 493."

27 The learned sentencing judge concluded, "GBL is a drug of a lesser order than the so-called ‘hard drugs’". The Crown submitted that in doing so his Honour took into account, contrary to the legislative scheme, his own perceptions of the harmfulness of the drug in determining that the respondent’s criminality was less than that associated with the importation of some other drugs. For example, in R v Neale (supra) at [73], Sully J said:

"[73] … the bald proposition that MDMA is to be treated as a "middle-range drug", in the sense that it is to be accepted more or less as a matter of course that an MDMA-related offence is to be treated, as a proposition of law, as being less serious than a heroin or cocaine related offence, is in my opinion wrong."

28 Similarly, in R v Z (supra) at [23] this Court concluded:

"[23] It should also be noted that his Honour made reference to this being a mid range drug. However, this is not a relevant consideration in the sentencing process. Rather, it is a description of the drug for the purposes of the legislative scheme . . . It is not clear whether his Honour treated the respondent’s criminality as less serious because this was a mid range drug, although it is possible that he did so because the comment otherwise had no relevance to this part of the sentencing process."

29 The Crown submitted that his Honour erred in concluding that GBL was a drug of a "lesser order". The importation of GBL attracts the same maximum penalty as other border controlled drugs including heroin, cocaine, MDMA and GHB. The commercial quantity is 1kg. The amount of GBL which, if imported, qualifies as a commercial quantity, is the same as GHB, but less than cocaine (2kg) or heroin (1.5kg). As Hulme J observed in R v To [2007] NSWCCA 200 at [12]:

"[12] The severity of the penalties prescribed speaks with unmistakable clarity of the seriousness with which Parliament views importation of the drugs mentioned."

30 The Crown then submitted that the sentencing judge also took into account matters that were wholly irrelevant to the sentencing process. These included the following:

30.1 That GBL can lawfully be imported into Australia under licence.

30.2 That there was no evidence to establish the prevalence of this offence.

30.3 That there was a tension between the State position and the criminal law of the Commonwealth with respect to GBL.

30.4 That the offence involved "recklessness".

30.5 That there was an alternative form of prosecution.

31 The Crown elaborated upon these matters in some detail, to which it is presently unnecessary to refer.

32 Finally, the Crown submitted that the sentence imposed was manifestly inadequate. It was submitted that the sentence failed to have regard to the following important matters at the very least:

32.1 The criminality of the offences, namely two separate offences each involving importing in excess of a commercial quantity of a border-controlled drug.

32.2 The important role of the respondent as the importer.

32.3 The maximum penalty of life imprisonment.

32.4 The significance of general deterrence in imposing sentences for offences of this nature.

The respondent's submissions

33 According to the respondent, the sentences imposed followed a thoroughly presented case in the sentencing proceedings in which all of the relevant issues were carefully considered. According to the submission, his Honour’s decision represented a sound exercise of a very broad discretion available in the determination of a sentence in criminal proceedings. The errors for which the Crown contended are said not to have been established.

34 At the forefront of the Crown's submissions appeared to be a foundational proposition that there should be no distinction whatsoever made between any of the very large number of substances which are specified in the relevant schedule establishing those substances as "border controlled drugs". According to the respondent, that submission must carry with it the positive assertion that sentences conventionally imposed for the importation of heroin, cocaine and MDMA are an authoritative guide to the magnitude of sentences that should be imposed for the offence of importation of each and every one of the substances specified in the relevant schedule. According to this submission, that assertion is plainly wrong and contrary to authoritative statements of sentencing principle.

35 The respondent submitted that the overwhelmingly dominant feature of the present case, for the purpose of assessing the objective criminality of his offences, was the fact that there was no indication of any commercial element in his conduct. That, so it was argued, brings the respondent's case starkly into contrast with conventional cases of drug importation. Although there was some evidence of supply, the accepted facts for the purpose of the sentence, which did not appear to be disputed or challenged by the Crown, were that the only supply involved was not for commercial gain.

36 The respondent's conduct in obtaining a substance that he correctly understood not to be prohibited in New South Wales, and the fact that he ordered the product from a source conducting a legitimate business using his own personal credit card to pay for it, was capable of characterising his conduct as quite different from that conventionally found in cases that are more commonly the subject of criminal prosecutions. This submission was emphasised further by the fact that the respondent conducted the importation openly and without any concealment or subterfuge with respect to his identity or his address. Such was the degree of openness and transparency in the transaction that it disclosed a level of criminality far below that found in conventional drug importation cases.

37 The respondent took issue with the Crown's reliance upon the passage cited above from the judgment of Hulme J in R v To (supra). According to the respondent, those words had to be read in the context of the passage which immediately followed them in which specific reference was made to five of the drugs referred to in the schedule, namely amphetamine, cocaine, heroin, methamphetamine and MDMA. According to this submission, they are "the drugs mentioned". His Honour was not intending to make a broad statement applicable to every substance in the schedule. His Honour's reference in par [13] to "seeing lives wrecked by addiction to drugs" must be taken to be a reference to those drugs that are specifically singled out for mention in his judgment.

38 According to the respondent, there is no necessary legislative implication that every single substance mentioned in the schedule should be regarded as falling within the same category. The respondent submitted that so much was recognised by the terms of a submission made on behalf of the Crown in the court below that "[w]hat is of significance for sentence is the maximum penalty for the offence and not necessarily the nature of the border controlled drug" (emphasis added). The respondent contended that this submission was a concession that the nature of the particular drug will be relevant in some cases.

39 Moreover, the respondent relied upon what was said by Hulme J in R v Poon (supra) at par [45] as follows:

"[45] Nothing I have said is intended to suggest that the harmfulness of particular drugs as known to the courts through evidence or matters of which the Court may take judicial notice is not a relevant consideration just as, for example, an alteration in the frequency of offences of a particular type is. In that connection, statements as to where in the spectrum of illegal drugs, a particular drug falls, based no doubt on substantial judicial experience as to the impact of drugs falling within one category or another, have the potential to assist the sentencing process. Any departure from accepted wisdom in this regard may well be an indication of error and inspire a careful look at any sentence which follows."

40 The respondent submitted that what the learned sentencing judge did conformed to the type of approach indicated in the passage from the judgment of Hulme J last quoted. Accordingly, in taking into account matters of prevalence and frequency, as well as seeking to rely upon information that may have established where this particular drug lay within the spectrum of illegal drugs, his Honour was applying accepted principle.

41 The respondent further submitted that the judgment of this Court in R v Neale (supra) provides specific assistance in dealing with the now thoroughly litigated question of whether offences involving MDMA are to be regarded as more or less serious than offences involving heroin or cocaine. The resolution of that conflict has nothing to say about whether other substances mentioned in the section may be distinguished from the more frequently encountered substances in drug importation cases.

42 Further assistance is said to be derived from the judgment of Ipp JA in R v Poon at par [19] when His Honour said:

"[19] Where the maximum penalty for an offence involving one drug is the same as that for an offence involving another, it may be said in a very general sense that there is an equivalence between the two offences. But that will not be a particularly helpful observation as the quantities of the drugs involved will almost certainly differ, and the criminality to be attributed to the conduct involving a particular quantity of one drug will almost certainly differ from that involving a like quantity of the other drug. Accordingly, it will usually be futile to compare sentences imposed for one offence with another."

43 The respondent submitted that in the present case the learned sentencing judge explored issues intended to ascertain "judicial experience" and "accepted wisdom" on the characteristics of GBL. His Honour discovered that it was not illegal to possess the substance in New South Wales and it was apparently freely and openly marketed in both Canada and England. It was ultimately open to his Honour to incorporate this information in his decision making process. He referred to the task of assessing the "moral culpability" of the respondent by reference to a number of features of his conduct and concluded, "his moral culpability was very low". The respondent submitted that it could not be shown that the sentences imposed as a result of this exercise were in error.

Consideration

44 In my opinion, the sentences imposed by his Honour were infected with error. It is possible to identify a clear error of principle which has led to the imposition of a "sentence that is definitely outside the appropriate range of the case in hand": Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, at pars [61] and [62], and Wong & Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at par [109]. The starting point of that opinion is the statute itself.

45 Section 314.4 identifies no less than 155 border controlled drugs and quantities. The only apparent common denominator between or among the substances listed in the section would appear to be the fact of that listing. So, for example, even though there is a clear and obvious connection between cannabis and cannabis resin, there is no such connection between either of those substances and cocaine or methadone. Similarly there is no obvious connection between morphine and mescaline. The substances are only connected by the common thread of legislative proscription.

46 Nor are any of the substances graded or ranked in comparison to any other or others, in terms of their known or perceived harmful effects, unit strength, addictive qualities, marketability, cost, price, availability, scarcity or any other apparently relevant characteristics. The only form of differentiation between or among substances appearing in the schedule is to be found in the marketable and commercial quantities allocated to them. As soon as a particular substance reaches a particular marketable or commercial quantity, it is to be treated, for the purposes of the Criminal Code, as being identical to every other substance in the schedule of a marketable or commercial quantity respectively. Importation of a commercial quantity of Dipipanone (2kg) exposes the importer to the same potential penalties of life imprisonment or a fine of $825,000 or both as the importer of .005kg of 3-Methylthiofentanyl.

47 Unfortunately, neither the Criminal Code in general nor s 314.4 in particular gives any insight into the process by which or pursuant to which it was determined how or why the listed substances should variously be criminalised, depending upon the quantity concerned. In terms of a sentencing exercise, however, this would appear to have at least one important consequence. Except by reference to quantity, there would appear to be no scope for judicial or forensic enquiry about the individual characteristics of any of the listed substances. For example, even with the benefit of the most highly respected expert opinion that listed substance "A" is socially, pharmacologically, or in every other relevant way wholly benign or alternatively exceedingly dangerous, there does not appear to be a legitimate avenue for the use of that information to inform the sentencing discretion or to substantiate a submission. In terms of a House v The King analysis, it seems to me that such opinion would be extraneous or irrelevant and immaterial. Regardless of what view one might have about it as a matter of policy, there would appear clearly to be a legislative foreclosure upon the ability of this Court to differentiate between the listed substances other than by reference to the quantities involved. The learned sentencing judge clearly fell into error on this analysis to the extent that he explored issues intended to ascertain "judicial experience" and "accepted wisdom" on the characteristics of GBL.

48 It is also wrong to utilise the words quoted from par [45] of the judgment of Hulme J in R v Poon to which the respondent draws this Court's attention in support of his argument to the contrary. This appears clearly from the balance of the paragraph as well as from the decision of the Court as a whole. However, most significantly, his Honour's words at par [43] would appear to put his view of the matter beyond doubt. His Honour said:

"[43] While the situation may well be different if the statutory provisions took a different form, given the particularity of quantities which place a drug in one or other of categories for which different penalties are provided, it seems to me that the seriousness of an offence relating to a particular drug is to be judged primarily by the statutory provisions relating to it rather than by some impression, whether or not based on evidence in the particular or other cases, of how deleterious that drug is in comparison with others. Thus the seriousness of an offence relating to MDMA should be determined by reference to the statutory provisions relating to it, rather than by some comparison with heroin or cocaine."

49 I am also of the view that, even in the absence of identifiable error, the sentences imposed upon the respondent were manifestly inadequate. In forming that view I have had regard to the very strong subjective case put forward on the respondent's behalf and I endorse the learned sentencing judge's characterisation and weighting of all factors favourable to him. However, his Honour’s assessment of the respondent included the following important passages from his remarks on sentence:

"Having regard to my acceptance that [the respondent] is genuinely remorseful over his conduct, the role of personal deterrence is less than it would be if there were no such expression. But of course the sentence must still demonstrate to [the respondent] that he must not engage in such future conduct and it must also demonstrate to those in the community that, alerted to the possibility that their conduct could attract criminal sanctions, they must ensure that they do not breach the law, to do so will bring punishment.

Adequate Punishment

Having regard to the objective seriousness of the criminal conduct and taking into account the subjective factors, but maintaining all considerations in appropriate proportions, the court is required to ensure that adequate punishment is imposed upon the offender."

50 In my opinion, despite this appropriate reminder to himself that he was required to have regard to the objective seriousness of the criminal conduct involved, his Honour failed adequately to abide by his own exhortation in the sentencing process. His Honour did not maintain "all considerations in appropriate proportions" and he failed to "ensure that adequate punishment [was] imposed upon the [respondent]".

51 Even if the respondent's offences could be characterised as falling at the lower, or even at the lowest, end of a scale of seriousness for offences of their kind, those last words of qualification cannot wholly be disregarded. The offences committed by the respondent attract very severe maximum penalties. Placing a particular offence somewhere on a scale of comparative seriousness lacks meaning and credibility if it fails to have regard to the maximum penalties and to the legislative imperative that underpins them. His Honour appears to have operated upon the basis that the strong subjective factors favourable to the respondent somehow operated to neutralise the objective seriousness of his criminal conduct. This led his Honour to impose a penalty that was impermissibly below the range of sentences appropriate to these offences.

Conclusion

52 Despite being of the opinion that error has been demonstrated, and that the sentences imposed by his Honour were inadequate, I do not consider that this is a case in which this Court should intervene.

53 In R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451, in the judgment of Heydon JA (as he then was), his Honour referred to the Court’s discretion under s 5D of the Criminal Appeal Act 1912 to determine a Crown appeal without proceeding to re-sentencing even if error is shown and to the description of that discretion given by Street CJ in R v Holder [1983] 3 NSWLR 245 at 255-256 as follows: -

"An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court’s understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person’s favour. I forbear from citing examples of the exercise of this discretion in favour of a convicted person lest in so doing they could be thought to have some controlling significance in a general sense. The discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case in hand."

54 A similar sentiment was expressed a short time later by King CJ in R v Hicks (1987) 45 SASR 270 at 273:

"… prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. I do not think that any consideration of justice or the protection of the public demands that this particular respondent, after he has been told by a court that he will not have to go to prison, should now be told by this appellate court that he must serve the sentence."

55 Finally, in Everett v The Queen (supra) at 305 Brennan, Deane, Dawson and Gaudron JJ expressed the matter thus: -

" … the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation."

See also R v Kyroglou [1999] NSWCCA 106 and R v Horne [1999] NSWCCA 391.

56 As will be apparent, the respondent was sentenced in a way that entitled him to remain in the community. Within four days of being sentenced the respondent reported to the city office of the Probation and Parole Service and informed those to whom he spoke that he wanted to commence and fulfil his obligations of community service. The respondent was informed that he would be contacted shortly. The respondent left information about where he could be contacted.

57 When no one contacted the respondent, he made several calls to the office during June, both in person and by telephone, and was informed that he was on a waiting list to get to the induction process; his application would be dealt with in order. The respondent finally received a letter informing him of an induction date and induction took place on 19 July 2007. Through no fault of the respondent, a further delay occurred. As a result, he was unable to commence his sentence until after 8 August 2007. Notwithstanding these delays, somewhat extraordinarily, but wholly commendably, the respondent had completed 198 hours of his community service orders by 18 September 2007. Having regard to the concurrence of the sentences imposed, the respondent had performed slightly in excess of 50 per cent of his community service hours by the time the Crown’s appeal was heard by this Court.

58 Furthermore, an affidavit filed on his behalf by his solicitor deposes in considerable detail to some of the matters to which the respondent has been exposed in the course of serving his sentence. It is unnecessary for present purposes to refer to the detail of this material. It is sufficient to observe that the work that the respondent has been required to perform has not been particularly pleasant.

59 This is a case in which would be harsh and unfair to subject the respondent to a more severe penalty. Even in circumstances where error is demonstrated, this Court retains a residual discretion not to interfere. In my opinion, this is a case where that residual discretion should be exercised.

Decision

60 The appeal should be dismissed.

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