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Court of Criminal Appeal 6 July 2018

R v Busby

[2018] NSWCCA 136

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE UNDERLYING ISSUE PLEAS OF GUILTY REJECTED REMITTED TO DISTRICT COURT FOR TRIAL

Citation: R v Busby [2018] NSWCCA 136
Court: 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 offences 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 first count involved 20.88 kilograms of MDMA (ecstasy) and the second involved 2.23 kilograms of cocaine. Both quantities exceeded the applicable large commercial quantities under the Act's Schedule, and each offence carried a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

At the sentencing hearing, the respondent gave evidence that he believed the suitcase he had transported contained cannabis leaf, not ecstasy and cocaine. He said he agreed to drive the suitcase for a fee of approximately $80 worth of cannabis, and was shocked to discover the actual contents. The sentencing judge accepted this account and, contrary to the Crown's submissions, imposed a cumulative sentence of two years' imprisonment to be served by way of an Intensive Correction Order.

The Crown appealed on grounds including manifest inadequacy of sentence. However, on hearing the appeal, the Court of Criminal Appeal identified a more fundamental issue: whether the pleas of guilty had been properly entered given the evidence the respondent had given on sentence.

Legal Issues

  • Whether, to be guilty of supply of a large commercial quantity under the Act, an offender must intend to supply not only a prohibited drug, but a quantity at or above the large commercial quantity applicable to the drug the offender believed the substance to be.
  • Whether the respondent's sworn evidence on sentence was inconsistent with, and undermined the validity of, his pleas of guilty.
  • How the Court of Criminal Appeal should dispose of a Crown appeal where the pleas of guilty were found to be improperly entered, in circumstances where that issue was not raised at first instance.

Decision

The mental element required for large commercial quantity offences

Button J (Hoeben CJ at CL and Walton J agreeing) confirmed two relevant principles that operate together. First, an offender charged with supplying a prohibited drug is guilty even if the drug actually supplied was different from the drug the offender believed it to be (at [39]-[40]). Second, to prove an offence aggravated by a commercial or large commercial quantity under the Act, the prosecution must establish not only an intention to supply but also an intention to supply that alleged quantity (at [41]).

The court held that these two principles cannot be applied in isolation from each other. To be guilty of the offence charged, the respondent needed to believe the suitcase contained a prohibited drug and to believe it contained not less than the large commercial quantity applicable to the drug he believed it to be (at [61]). The relevant large commercial quantity of cannabis leaf was 100 kilograms, whereas the respondent's own account was that he believed the suitcase contained only something over 1.5 kilograms of cannabis. On his own evidence, he never intended to possess for supply more than a large commercial quantity of any prohibited drug (at [58]).

Why the pleas were not properly entered

Button J illustrated the problem with a hypothetical involving LSD and cannabis, demonstrating that any disparity in the nature, weight, and potency of different prohibited drugs would produce absurd results if the mental element for the quantity aggravation could be satisfied by reference to a different drug from the one the offender intended to supply (at [48]-[56]). The court concluded that the pleas of guilty were not properly entered due to a faulty legal analysis of the mental element with regard to the large commercial quantity (at [59]). The respondent's evidence on sentence traversed the validity of his pleas (at [60]).

Disposition of the Crown appeal

The court declined to determine the Crown's sentencing grounds on their merits. Because the issue of the pleas' validity had not been raised at first instance, proceeding to determine manifest inadequacy would have been a denial of procedural fairness to the respondent (at [66]). The court instead rejected the pleas of guilty in light of the inconsistent evidence, quashed the convictions and sentences, and remitted the charges to the District Court for trial (at [67]).

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

  • Under the Drug Misuse and Trafficking Act 1985 (NSW), proving an offence aggravated by a large commercial quantity requires establishing not only an intention to supply a prohibited drug, but also an intention to supply at least the large commercial quantity applicable to the drug the offender believed the substance to be (at [41], [61]).

  • A defendant's evidence on sentence that is inconsistent with the mental element underpinning a plea of guilty may cause a court to reject that plea and quash the resulting conviction, even where the plea was entered in accordance with counsel's legal analysis (at [59]-[60]).

  • The principle that an offender is guilty of supply regardless of whether the drug actually supplied differs from the drug believed to be supplied (at [39]-[40]) operates alongside, not independently of, the requirement for the requisite mental element as to quantity. The Court of Criminal Appeal rejected an approach that disaggregates these elements by applying each to a different drug.

  • Where an issue going to the validity of a plea of guilty was not raised at first instance, the Court of Criminal Appeal may decline to determine the substantive grounds of a Crown appeal and instead quash the conviction in the interests of procedural fairness (at [66]-[67]).

  • Significant sentencing disparities in large commercial quantity cases, such as a cumulative two-year ICO for offences carrying life imprisonment and a 15-year standard non-parole period, may signal a fundamental problem with the underpinning plea rather than merely an error in the exercise of sentencing discretion (at [32]-[33]).

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)

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