Citation: R v Andrew Charles Corbett [2008] NSWCCA 42
Court: Court of Criminal Appeal, New South Wales
Date: 4 March 2008
Judge(s): McClellan CJ at CL, Hulme J, Harrison J
Background
The respondent pleaded guilty in the District Court to two charges of attempting to import a commercial quantity of gammabutyrolactone (GBL), a border controlled drug, contrary to the Criminal Code Act 1995 (Cth). The maximum penalty for each offence was life imprisonment and/or a fine of $825,000. Bell DCJ sentenced the respondent to 150 hours of community service on the first count and 360 hours of community service on the second count, with both sentences to be served concurrently.
The Crown appealed to the Court of Criminal Appeal, arguing that the sentences were manifestly inadequate. A central issue on appeal was whether Bell DCJ had erred by treating GBL as a drug of a "lesser order" than so-called hard drugs, and by comparing its seriousness to other substances rather than assessing it by reference to the applicable statutory provisions.
By the time the appeal was heard, the respondent had already completed more than half of his community service hours, having proactively pursued commencement of his sentence despite administrative delays on the part of the Probation and Parole Service.
Legal Issues
- Whether Bell DCJ erred in characterising GBL as a drug of a lesser order than hard drugs, and in using comparative assessments of drug harmfulness rather than the statutory framework as the primary reference point for sentencing.
- Whether, accepting such error, the sentences imposed were manifestly inadequate.
- Whether the Court of Criminal Appeal should exercise its residual discretion not to intervene, even where error is demonstrated, on the grounds that resentencing would be harsh and unfair to the respondent.
Decision
The Court of Criminal Appeal held unanimously that Bell DCJ had erred in the sentencing approach. The correct approach under the statutory regime is to assess the seriousness of a drug offence primarily by reference to the statutory provisions relating to the relevant substance, not by comparing that substance's harmfulness to other drugs. The threshold quantities set by Parliament, which determine whether an offence is trafficable or commercial, already encode the legislative judgment about how seriously to treat a given substance. There is no scope for judicial inquiry into the individual pharmacological or social characteristics of listed substances except by reference to quantity.
The Court confirmed the approach taken in R v Poon [2003] NSWCCA 42, which held that while the harmfulness of a drug is not entirely irrelevant, the seriousness of an offence relating to a particular drug should be determined principally by the statutory provisions applicable to it, not by impression or comparison with other drugs. The Court declined to adopt the more absolute Victorian approach from R v Pidoto, which treated harmfulness as entirely irrelevant, and left that question open pending the High Court's consideration of R v Adams.
Despite finding error and accepting the sentences were inadequate, the Court exercised its residual discretion not to interfere. The respondent had been entitled by the original sentence to remain in the community. He had actively sought to commence his community service immediately, been delayed through no fault of his own by administrative processes, and had nonetheless completed over 198 hours by the time the appeal was heard. The Court found it would be harsh and unfair to now impose a more severe penalty.
Orders Made
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that, under the Commonwealth statutory regime for border controlled drugs, the seriousness of a drug importation offence is assessed primarily by reference to the relevant statutory provisions, including threshold quantities, rather than by comparing the harmfulness of one substance to another.
- Bell DCJ's characterisation of GBL as a drug of a "lesser order" than hard drugs was found to constitute error, as there is no proper scope for a sentencing court to conduct comparative inquiries into the individual properties of listed border controlled substances.
- The Court declined to adopt the Victorian Supreme Court's more absolute position that drug harmfulness is entirely irrelevant as a matter of statutory construction, leaving that question open pending High Court resolution.
- In dismissing the appeal, the Court exercised its residual discretion not to interfere despite finding error, applying the principle that it would be harsh and unfair to subject a respondent to greater punishment after they have materially performed a sentence imposed without objection.
- A respondent's conduct after sentencing, including prompt and diligent compliance with community service obligations, is a relevant consideration when a court assesses whether to exercise that residual discretion on a Crown appeal.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.1, Part 9.1
- Criminal Appeal Act 1912 (NSW)
- Customs Act 1901 (Cth)
- Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth)
Cases:
- R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284
- R v Wall [2002] NSWCCA 42
- R v Pidoto [2006] VSCA 185; (2006) 14 VR 269
- R v Adams [2007] VSCA 37
- R v AA [2006] NSWCCA 55
- R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493
- R v Dang [2005] NSWCCA 430
- R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436
- R v Kyroglou [1999] NSWCCA 106
- R v Horne [1999] NSWCCA 391
- 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
- Wong & Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
- R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
- R v Holder [1983] 3 NSWLR 245
- R v Hicks (1987) 45 SASR 270
- R v To [2007] NSWCCA 200