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Court of Criminal Appeal 10 December 2010

R v COLLEDGE

[2010] NSWCCA 302

Drugs

Citation: R v Colledge [2010] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 10 December 2010
Judge(s): Macfarlan JA, RS Hulme J, McCallum J

Background

The respondent, a businessman, was charged with importing a commercial quantity of gamma-butyrolactone (GBL), a border controlled drug under Commonwealth law, contrary to s 307.1 of the Criminal Code Act 1995 (Cth). Approximately 2,060 grams of GBL were intercepted in an international mail parcel addressed to his workplace, more than double the one-kilogram minimum commercial quantity. He pleaded guilty at the first reasonable opportunity.

At sentencing, the respondent gave evidence that he had researched GBL, believed it to be legal based on an Austlii search, and used it for personal consumption over an extended period. He had ordered it in his own name without concealment, and had provided small amounts to a very limited number of others at no charge. The sentencing judge, Hosking DCJ, found him to be an honest witness, characterised the offence as sitting at the very bottom of the scale, and imposed a fine of $500.

The Crown appealed on the ground that the sentence was manifestly inadequate. The Crown's primary position was that a full-time custodial sentence was warranted, though some fallback alternatives were also mentioned during the appeal hearing.

  • Whether the fine of $500 imposed by Hosking DCJ was manifestly inadequate for an offence of importing a commercial quantity of a border controlled drug
  • Whether a custodial sentence was required, or whether the terms of s 17A of the Crimes Act 1914 (Cth) precluded one absent a finding that no other penalty was appropriate
  • Whether a community service order was available as an alternative on the evidence before the court
  • What the appropriate non-custodial penalty should be, having regard to the respondent's recklessness and overall circumstances

Decision

The Court of Criminal Appeal agreed with the Crown that the $500 fine was manifestly inadequate, though it rejected the submission that a full-time custodial sentence was required. RS Hulme J, with whom Macfarlan JA and McCallum J agreed, affirmed that Hosking DCJ was entitled to conclude that no custodial sentence was appropriate given the findings on the respondent's state of knowledge, motivation, likely drug use, general character, and low likelihood of reoffending.

The Court also found that a community service order was unavailable. While s 20AB of the Crimes Act 1914 (Cth) permits such orders, the necessary evidentiary foundation for making one had not been placed before either Hosking DCJ or the appeal court.

On the question of penalty, the Court held that the recklessness implicit in the respondent's guilty plea required a more substantial financial penalty. A fine of $500, measured against the statutory maximum of 7,500 penalty units (or life imprisonment), was described as almost nominal. The Court substituted a fine of $3,000 and allowed three months for payment. McCallum J separately noted that the respondent could apply to the Registrar under s 10 of the Fines Act 1996 for further time if genuine difficulty arose.

Orders Made

  • Appeal allowed
  • Sentence imposed by Hosking DCJ on 20 April 2010 quashed
  • The respondent to pay a fine of $3,000
  • The respondent allowed three months to pay

Key Takeaways

  • A fine at virtually a nominal level relative to the statutory maximum can constitute a manifestly inadequate sentence even where the offence is assessed as falling at the very bottom of the range and no custodial term is warranted.
  • Under s 307.1 of the Criminal Code Act 1995 (Cth), a plea of guilty to importing a commercial quantity of a border controlled drug carries with it a necessary implication of at least recklessness as to the drug's status, meaning the offender was aware of a substantial and unjustifiable risk.
  • A community service order under s 20AB of the Crimes Act 1914 (Cth) requires an evidentiary foundation that must be placed before the sentencing court; its absence precluded that option on appeal.
  • The Court of Criminal Appeal confirmed that Hosking DCJ's acceptance of the respondent's genuineness and low recidivism risk supported a non-custodial outcome, but did not insulate the quantum of the fine from appellate correction.
  • Where a Crown appeal results in a fine being imposed and the respondent's financial circumstances were not addressed at hearing, the Court may allow an extended period for payment and note the availability of further time under s 10 of the Fines Act 1996.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.1 (importing commercial quantities of border controlled drugs), s 5.4 (recklessness)
- Crimes Act 1914 (Cth), s 17A (restrictions on custodial sentences), s 20AB (community service orders)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 86
- Fines Act 1996 (NSW), s 10
- Customs (Narcotic Substances) Regulation, Schedule item 15A

Cases cited in judgment (as referenced in the text):
- R v Allpass (1993) 72 A Crim R 561
- Griffiths v The Queen (1977) 137 CLR 293
- R v Douar (2005) 159 A Crim R 154
- R v Dinsmore (1999) 46 NSWLR 346
- R v Ridgeway [2000] NSWCCA 286
- R v Bolt (2001) 126 A Crim R