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Court of Criminal Appeal 31 March 2020

Petkos v R

[2020] NSWCCA 55

Drugs
CRIMINAL LAW SENTENCING DRUG OFFENCES BUTYROLACTONE GBL DRUG IMPORTED FROM CHINA

Citation: Petkos v R [2020] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 31 March 2020
Judges: R A Hulme J, Hamill J, Wilson J

Background

The appellant pleaded guilty in the Local Court to two offences under the Drug Misuse and Trafficking Act 1985 (NSW): supplying a large commercial quantity of gamma-butyrolactone (GBL), a prohibited drug, and attempting to supply a further quantity of GBL. Two additional matters were taken into account on a Form 1: possession of a prohibited weapon (a Taser disguised as a torch) and possession of a precursor chemical used in the manufacture of methylamphetamine.

The offending involved the appellant importing GBL from a supplier in China. The main consignment weighed 5.624 kilograms at 98.5% purity, well above the 4-kilogram threshold for a "large commercial quantity." A second consignment of 584.3 grams arrived days earlier. The total anticipated proceeds from selling the larger consignment amounted to approximately $7,200, calculated at $1,250 per litre.

The District Court imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years, applying a 25% discount for the early guilty plea. The appellant sought leave to appeal, arguing the sentencing judge had misassessed the objective seriousness of the offences and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective criminality of the two principal drug offences
  • Whether the sentence of 8 years with a 5-year non-parole period was manifestly excessive
  • Whether the sentencing judge was required to apply a Victorian Court of Appeal authority (DPP (Cth) v Maxwell) that characterised GBL as a "low reward drug" warranting a lower sentence

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's assessment of objective seriousness. The judge had expressly referred to the "modest profit" the appellant received or expected, which the Court of Criminal Appeal treated as demonstrating that the low financial reward identified in the Victorian authority had indeed been taken into account. The fact that the sentencing judge did not cite the Victorian case by name did not mean the relevant consideration was ignored.

The Victorian cases, including DPP (Cth) v Maxwell, were decided under Commonwealth legislation and involved different drugs and different sentencing regimes. Hamill J observed that Victorian sentencing authority is not binding in New South Wales and, while it can be of assistance, the differences in legislation and drug schedules mean it must be applied with care. No error was established in the sentencing judge's failure to treat the Victorian authority as determinative.

On manifest excess, the Court acknowledged the sentence was a severe one, particularly given the appellant's lack of relevant criminal history, his mental health condition, and what were described as reasonable prospects of rehabilitation. However, the Court found the sentence was not plainly unjust. A comparison with the sentence in Davidson v R, involving a much larger GBL importation, did not assist the appellant's case given the different legislative context and subjective circumstances in that matter. Statistical data from the Judicial Commission concerning GBL's closely related drug, GHB, also did not suggest the sentence fell outside an acceptable range.

Orders Made

  • Application for leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Victorian sentencing authorities involving GBL are not binding in NSW and must be applied cautiously, given differences in the relevant legislation and drug classification schemes.
  • A sentencing judge is not required to cite a specific interstate authority by name, provided the relevant consideration identified in that authority (here, low financial reward) is otherwise addressed in the sentencing reasons.
  • Leave to appeal was granted because the sentence was severe and the application of the Victorian Maxwell authority to NSW GBL cases raised an issue of general importance, but that did not translate into a finding of error.
  • No error was established where the sentencing judge referred to the appellant's "modest profit" in terms that sufficiently captured the same concern as the Victorian "low reward drug" characterisation.
  • In dismissing the appeal, the Court noted the very limited sentencing precedent available for GBL offences in NSW, and treated comparative statistics relating to GHB (a closely related drug) as only modest guidance.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24A(1)(a), 25(1), 25(2)
- Criminal Code (Cth)

Cases
- R v Petkos (No. 2) [2019] NSWDC 330 (decision under appeal)
- Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218
- Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311
- Ellis v The Queen [2018] VSCA 221
- Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
- Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Mulato v R [2006] NSWCCA 282