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District Court 26 August 2022

R (Commonwealth) v Hamilton

[2022] NSWDC 677

Drugs
CRIME RELEVANT FACTORS ON SENTENCE EARLY PLEA DRUG IMPORTED FOR NON COMMERCIAL PURPOSE IS FULL TIME CUSTODY REQUIRED

Citation: R (Commonwealth) v Hamilton [2022] NSWDC 677
Court: District Court of New South Wales
Date: 26 August 2022
Judge: Haesler SC DCJ

Background

The offender was charged under s 307.1(1) of the Criminal Code Act 1995 (Cth) with importing a commercial quantity of Gamma-Butyrolactone (GBL), a border controlled drug. Between October and November 2020, he purchased five litres of a product marketed as "Multi Gel Remover" through an international website found via a simple Google search, paying approximately $500 (AUD). The consignment was intercepted by Border Force officers and found to contain 5,378 grams of GBL at 94% purity, well above the commercial quantity threshold of one kilogram.

A second matter, possession of a further two litres of GBL found at the offender's home during a search warrant, was taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth). Both offences carried a maximum penalty of life imprisonment. The offender entered a guilty plea after the matter had been listed for trial but well before the trial date itself.

At sentence, the offender gave evidence that he had purchased the product for use in a furniture restoration business, though he acknowledged knowing, by the time he placed the order, that the substance contained GBL. He had also used GBL recreationally on at least one prior occasion. His case raised a central question for the sentencing court: whether an importer who was naive or ignorant of the legal consequences, and who did not import for profit or supply, warranted full-time custody.

  • What weight should be given to the purpose of importation (personal or commercial use) in assessing objective seriousness, where the quantity imported was a commercial quantity?
  • Was the offender's account of importing for legitimate personal and business use, rather than for profit or supply, credible and accepted beyond reasonable doubt?
  • What discount was appropriate for a guilty plea entered late (after trial listing but well before the trial date)?
  • Was full-time custody required, or could an Intensive Correction Order (ICO) serve as an appropriate disposition?

Decision

On the question of objective seriousness, the court accepted that while the quantity of drug imported (5.3 kilograms of pure GBL) was a significant factor in determining the penalty range, it was not determinative. Haesler SC DCJ noted that for offences involving lower-reward drugs, the purpose of importation and any financial gain received or anticipated are particularly important considerations, drawing on Petkos v R [2020] NSWCCA 55 and DPP (Cth) v Maxwell [2013] VSCA 50. The court found it could not be satisfied beyond reasonable doubt that the importation was for profit or intended supply.

The court accepted the offender's evidence as frank and honest, notwithstanding some inconsistencies with his initial police record of interview. The offender acknowledged under questioning that he knew the substance contained GBL when he placed the order for five litres, but the court found that he appeared naive or ignorant of his legal obligations and the potential consequences. The court also accepted that upon learning he faced a potential life sentence, the offender suffered genuine psychological distress, including depression and anxiety for which he was now receiving medication.

A 20% discount was applied to reflect the utilitarian value of the guilty plea. Although the plea was not entered in the Local Court, the District Court noted that the Wollongong list freed up a trial date as a result, and this carried meaningful utilitarian value. The s 16BA schedule matter was also taken into account, resulting in some increase to the principal sentence, consistent with the approach in Markarian v The Queen [2005] HCA 25.

On the question of full-time custody, the court found the offending was serious enough to require a custodial sentence but that the sentence could be moderated. The court was satisfied that all preconditions for an Intensive Correction Order were met and that this was the most appropriate disposition. The court also found it unlikely the offender would reoffend in a like manner.

Orders Made

  • A fixed two-year term of imprisonment, to be served by way of Intensive Correction Order in the community
  • The offender must be of good behaviour
  • The offender must obey all directions of Community Corrections and accept supervision for as long as deemed necessary
  • The offender must report to the Wollongong Community Corrections office within seven days
  • The offender must complete 200 hours of community service
  • Breach of the order may result in the offender being remanded in custody for the balance of any outstanding sentence

Key Takeaways

  • Where a commercial quantity of a border controlled drug is imported, the purpose of the importation (personal use versus profit or supply) remains a material consideration in assessing objective seriousness, even where the quantity clearly satisfies the commercial threshold.
  • A finding that importation was not for profit or supply requires proof beyond reasonable doubt; here, the District Court found it could not reach that standard of satisfaction against the offender's account.
  • A guilty plea entered after a matter is listed for trial but well before the trial date may still attract a meaningful utilitarian discount, particularly where the freed court date is reallocated to another matter.
  • An Intensive Correction Order was available as a sentencing disposition for a Commonwealth offence of this seriousness, where all statutory preconditions were satisfied and the court determined full-time custody was not required.
  • Naivety or ignorance of the legal consequences of importing a border controlled drug does not negate criminal liability but may bear on the assessment of culpability and the appropriate sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.1(1), 307.8(1)
- Crimes Act 1914 (Cth), ss 16BA, 20(1)(b)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- DPP (Cth) v Maxwell [2013] VSCA 50
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Petkos v R [2020] NSWCCA 55
- R v Corbett [2008] NSWCCA 42
- R v Davidson [2009] NSWCCA 150
- R v Dennison [2011] NSWCCA 114
- R v Nguyen; R v Pham [2010] NSWCCA 238