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District Court 23 September 2021

R v O’Brien

[2021] NSWDC 504

Drugs
CRIME POSSESS PROHIBITED DRUG

Citation: R v O'Brien [2021] NSWDC 504
Court: District Court of NSW
Date: 23 September 2021
Judge(s): Mahony SC DCJ

Background

The offender, a woman aged 53 at the time of offending, pleaded guilty to three charges: importing a marketable quantity of a border-controlled drug (gamma-butyrolactone, or GBL), and two counts of possessing a prohibited drug (methamphetamine and ketamine). She had purchased two bottles of a product marketed as GBL Europe Multi Gel Remover online for approximately $47 AUD, using her own bank card and personal details, and arranged for the consignment to be shipped from the Netherlands.

The parcel was intercepted at the Sydney Gateway Facility in September 2020 and tested positive for GBL. The offender tracked the consignment on several occasions and attended Broadway Post Office on 30 September 2020 to collect it, at which point she was arrested. Police also found 2.32 grams of methamphetamine and 0.24 grams of ketamine on her person. She spent 38 days in custody before being granted bail.

The net weight of pure GBL across the two bottles was 446.61 grams, at purity levels of 93.5% and 92%. Although this was more than 200 times the marketable quantity threshold of two grams, it was less than half the commercial quantity of one kilogram.

Legal Issues

  • What was the appropriate sentence for a federal drug importation offence (importing a marketable quantity of a border-controlled drug) under the Criminal Code Act 1995 (Cth), having regard to all relevant factors under s 16A(2) of the Crimes Act 1914 (Cth)?
  • Whether a term of imprisonment was required under s 17A of the Crimes Act 1914 (Cth), or whether an alternative sentencing disposition was available and appropriate.
  • What weight should be given to the offender's mental health diagnoses, drug dependency, rehabilitation progress, criminal history, and plea of guilty in determining the sentence?
  • What discount applied to reflect the offender's early guilty plea?
  • What sentences were appropriate for the two NSW drug possession offences?

Decision

Issue 1: Objective seriousness of the importation offence

The court assessed the objective seriousness of the importation as sitting at the lowest end of the range for an offence under s 307.2(1) of the Criminal Code Act 1995 (Cth) (at [71]). The purchase was unsophisticated, made in the offender's own name and on her own credit card, for a product with low commercial value compared to other border-controlled drugs. The quantity, while substantial relative to the marketable threshold, was less than half the commercial quantity. The offender was not part of any criminal syndicate, and any financial benefit from sharing the product with friends was assessed as minimal (at [71]).

Issue 2: Subjective factors, mental health and rehabilitation

The court accepted the offender's personal history of childhood trauma, including exposure to domestic violence and child sexual abuse, as relevant to diminishing her moral culpability (at [75]). The court accepted that her drug use was a maladaptive coping mechanism, though it did not accept that her mental health conditions were causative of the offending itself (at [79]). The court accepted diagnoses of Post-Traumatic Stress Disorder, Generalised Anxiety Disorder, Major Depressive Disorder, ADHD and Substance Use Disorder, which diminished the weight of both general and specific deterrence in the sentencing exercise (at [80]).

Issue 3: Risk of reoffending and rehabilitation prospects

The court declined to follow the Sentencing Assessment Report's assessment of medium-high risk of reoffending (at [82]). Instead, it accepted the psychologist's more favourable assessment, noting the offender's age, the salutary effect of her 38 days in custody, and her consistent negative drug test results since January 2021 under the care of her treating practitioner (at [81]-[82]).

Issue 4: Guilty plea, cooperation and sentence discount

The court applied a 25% discount to reflect the plea entered at the earliest opportunity (at [72]). The court gave limited weight to the claimed cooperation with police, noting the offender initially told police she purchased the product as a paint remover upon arrest (at [73]).

Issue 5: Whether imprisonment was required

Under s 17A of the Crimes Act 1914 (Cth), a federal sentence of imprisonment should not be imposed where another sentence is appropriate in all the circumstances. Having regard to the low objective seriousness, the diminished moral culpability, and the strong subjective case, the court was not satisfied that imprisonment was the only appropriate option (at [84]). The court also noted that the range of sentences in comparable cases extended from community correction orders through to imprisonment, and that sentencing is an idiosyncratic exercise (at [85]).

Issue 6: Disputed facts at sentence

The court ruled that two paragraphs in the Crown Sentence Summary were not to be relied upon at sentence. Those paragraphs concerned events unrelated to the three charges, did not form part of the same course of conduct, and would have supported a supply charge with which the offender was not charged (at [3]-[4]).

Orders Made

  • Count 1 (possess prohibited drug, methamphetamine, 2.32 grams): Convicted and fined $300.
  • Count 2 (import marketable quantity of border-controlled drug, GBL): Convicted and placed on a Community Corrections Order for 18 months, with standard conditions plus an additional condition requiring the offender to remain under the care of her treating practitioner, Ms Ardren, for 12 months or as long as Ms Ardren deems appropriate.
  • Count 3 (possess prohibited drug, ketamine, 0.24 grams): Convicted with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • The District Court confirmed that s 17A of the Crimes Act 1914 (Cth) requires a sentencing court to consider all available alternatives before imposing federal imprisonment, and that where objective seriousness is at the lowest end of the range and strong subjective factors are present, a community corrections order may be appropriate even for a marketable quantity drug importation offence (at [84]).

  • A sentencing court is not bound by the risk assessment in a Sentencing Assessment Report where other psychological evidence and observable conduct, such as sustained abstinence and engagement with treatment, support a more favourable conclusion about the risk of reoffending (at [82]).

  • Disputed facts in a Crown Sentence Summary that relate to conduct forming a separate, uncharged course of offending are not appropriate to use at sentencing, even where the Crown contends they are relevant to the offender's role or rehabilitation prospects (at [3]-[4]).

  • Under s 16A(2) of the Crimes Act 1914 (Cth), established mental health conditions can reduce the weight given to both general and specific deterrence in federal drug sentencing, particularly where diagnoses of PTSD, anxiety and depressive disorders are accepted by the court (at [80]).

  • An early guilty plea entered in the face of a strong prosecution case can still attract the maximum utilitarian discount, here 25%, where it avoided the need for a trial and thereby assisted the administration of justice (at [72]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth)
- Drug Misuse & Trafficking Act 1985 (NSW)

Cases
- DPP v Costa [2019] VCC 695
- DPP v MA [2019] VCC 301
- DPP v Maxwell [2013] VSCA 50
- Hili v The Queen (2010) CLR 502; [2010] HCA 45
- R v Colledge [2010] NSWCCA 302
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Pogson [2012] 82 NSWLR 60
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14