Citation: R v Busby [2018] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 6 July 2018
Judges: Hoeben CJ at CL, Walton J, Button J
Background
The respondent pleaded guilty in the District Court to two counts of knowingly taking part in the supply of a prohibited drug in a large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The drugs in question were 20.88 kilograms of MDMA (ecstasy) and 2.23 kilograms of cocaine, both found in a locked suitcase in the boot of a car the respondent was driving. Each offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
At sentencing, the respondent gave evidence that he believed the suitcase contained cannabis (which he referred to as "bud"), not hard drugs, and that he had agreed to transport it for a reward of cannabis worth approximately $80. The Crown cross-examined him on the implausibility of this account but ultimately accepted it was open to the sentencing judge to find the respondent genuinely believed the suitcase held cannabis.
The sentencing judge imposed a cumulative head sentence of two years' imprisonment, to be served by way of an Intensive Correction Order. The Crown appealed to the Court of Criminal Appeal on grounds including manifest inadequacy.
Legal Issues
- Whether the sentence imposed was manifestly inadequate or otherwise infected by error
- Whether the mental element required for a large commercial quantity drug supply offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) extends to knowledge of the quantity, or only to knowledge that the substance involved was a prohibited drug
- Whether the respondent's sworn evidence at sentencing was inconsistent with his pleas of guilty, such that those pleas ought to be rejected
- What procedural course was available to the Court of Criminal Appeal in those circumstances
Decision
Button J (with whom Hoeben CJ at CL and Walton J agreed) identified a significant legal issue that had not been raised at first instance. The court examined the mental element required for a large commercial quantity drug supply offence under s 25(2) of the Act, and concluded that the prosecution must establish that the accused knew the substance involved was a prohibited drug. However, the Court found no clear requirement that the accused knew the particular drug or its quantity.
This created a fundamental tension. The respondent's evidence was that he believed he was transporting cannabis, not MDMA or cocaine. The large commercial quantity threshold for cannabis differs from that for ecstasy and cocaine. Because the respondent's belief was that the drug was cannabis, and the quantities he thought he was carrying (of cannabis) may not have satisfied the large commercial quantity threshold for that drug, his sworn evidence was arguably inconsistent with a knowing participation in the supply of the charged drugs in large commercial quantities.
The Court observed that this inconsistency had not been properly explored at sentencing. In particular, the respondent was never cross-examined on the proposition that, even on his own account, he believed he was carrying what could have been 100 kilograms or more of a substance. The Crown had conceded at sentencing that it was open to find the respondent believed he was transporting cannabis, without anyone turning their mind to the legal consequences of that finding for the validity of the pleas.
In those circumstances, the Court declined to resolve the Crown appeal on its merits. Proceeding to determine manifest inadequacy would have been procedurally unfair to the respondent, particularly given that senior counsel had indicated the pleas were entered on a particular analysis of the mental elements of the offences. The Court instead rejected the pleas of guilty as inconsistent with the respondent's own evidence, quashed the convictions and sentences, and remitted the charges for trial.
Orders Made
- The two pleas of guilty entered by the respondent are rejected.
- The convictions entered against, and sentences imposed upon, the respondent by Acting Judge Armitage are quashed.
- The two outstanding charges against the respondent are remitted to the District Court for trial.
Key Takeaways
- A guilty plea may be rejected where the defendant's own sworn evidence at sentencing is inconsistent with the mental elements required for the offence to which the plea was entered.
- Under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), the prosecution must establish that the accused knew the substance was a prohibited drug, but the Court's analysis raised the question of whether knowledge of the specific drug type is also relevant where the large commercial quantity threshold differs between drugs.
- Where an accused believes they are transporting one prohibited drug, their culpability under a large commercial quantity charge may depend on whether the quantity believed to be involved would satisfy the threshold for that particular drug, not the drug actually present.
- Procedural fairness required that the respondent be given an opportunity to address the inconsistency between his evidence and his pleas before any adverse finding was made; the Court of Criminal Appeal declined to simply proceed with the Crown appeal in its absence.
- In dismissing the appeal and remitting the matter for trial, the Court signalled that the unresolved factual and legal questions about the respondent's state of mind were properly matters for a jury, not a sentencing judge.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) and Schedule 1
- Criminal Code Act 1995 (Cth)
Cases
- Alhassan v R [2017] NSWCCA 73
- Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248
- Dunn v The Queen (1986) 32 A Crim R 203
- R v CWW (1993) 32 NSWLR 348; 70 A Crim R 517
- Siafakas v R [2016] NSWCCA 100
- Yousef Jidah v R [2014] NSWCCA 270