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Court of Criminal Appeal 11 October 2023

Bott v R

[2023] NSWCCA 255

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE EXISTING CO MORBID MENTAL DISORDERS GBL OFFENCE

Citation: Bott v R [2023] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 11 October 2023
Judges: Beech-Jones CJ at CL, Fagan J, Dhanji J (joint reasons, with Fagan J adding observations on ground 2)

Background

The appellant pleaded guilty in the Local Court to two drug offences: attempting to possess a commercial quantity of gamma-butyrolactone (GBL), a border-controlled drug reasonably suspected of having been unlawfully imported, and knowingly taking part in the supply of a commercial quantity of methylamphetamine. A possession of methylamphetamine charge was taken into account on a Form 1 (meaning it was noted as an additional matter without attracting a separate sentence).

At first instance in the District Court, the appellant received 11 years and 3 months imprisonment with a non-parole period of 7 years for the GBL offence, and 3 years and 9 months with a non-parole period of 2 years and 6 months for the supply offence. The appellant had a limited criminal history, including minor drug-related matters, with no prior terms of imprisonment.

The appellant challenged both the process of sentencing and the outcome. His grounds centred on the sentencing judge's treatment of expert evidence linking his mental health conditions and addiction to his offending, and on whether the sentence for the GBL offence was manifestly excessive.

  • Whether the sentencing judge erred by failing to find or take into account unchallenged expert evidence establishing a nexus between the appellant's pre-existing co-morbid mental health disorders and his offending behaviour, so as to reduce his moral culpability.
  • Whether the sentence of 11 years and 3 months for the attempt to possess a commercial quantity of GBL was manifestly excessive in light of comparable sentencing decisions and the relative commercial value of GBL compared to other prohibited drugs.

Decision

Ground 1: Mental health nexus and moral culpability

The Court confirmed that a factor which reduces moral culpability may also reduce the gravity of the offending, and therefore the upper limit of proportionate punishment, and may also affect the weight to be given to purposes such as denunciation. However, the Court noted that findings about objective seriousness and moral culpability are intermediate steps on the way to determining the appropriate weight for each sentencing purpose, rather than ends in themselves.

On the facts, the Court found no error. The sentencing judge had already assessed the gravity of the offending by reference to the appellant's motive, which included funding his addiction and paying off gambling debts. Because the expert evidence went to the appellant's capacity to control his addiction, which in turn drove the offending, the motive had already been taken into account. The complaint that the nexus between the mental health conditions and the offending was not factored in to reduce moral culpability therefore failed.

Ground 2: Manifest excess for the GBL offence

The Court accepted this ground. Reviewing the relatively small body of sentencing decisions for GBL-related importation offences, the Court identified an apparent pattern of leniency compared to sentences for equivalent quantities of drugs such as methamphetamine, heroin, or cocaine. Drawing on the Victorian Court of Appeal's reasoning in DPP (Cth) v Maxwell, the Court held that differences between drugs in respect of demand, commercial value, and prevalence of offending are concrete factual matters that directly bear on objective seriousness and the need for general deterrence.

The Court held it was unfair to the appellant to sentence him on an assumption that a commercial quantity of GBL carries equivalent commercial value to a commercial quantity of methamphetamine. There was no evidence of the drug's value before the sentencing court. The original sentence was found to be excessive to the point of establishing error, and the Court resentenced the appellant for the GBL offence.

Orders Made

  • Leave to appeal granted.
  • The sentences for knowingly taking part in the supply of methylamphetamine and possession of methylamphetamine (Form 1) confirmed.
  • The sentence for attempting to possess a commercial quantity of a border-controlled drug quashed; in lieu, the appellant sentenced to 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months, commencing 16 February 2022.
  • The appellant eligible for release to parole on 15 August 2026.
  • Total effective sentence: 8 years and 11 months with a non-parole period of 5 years and 11 months, commencing 16 September 2020.

Key Takeaways

  • A reduction in moral culpability arising from mental health or addiction factors may reduce the gravity of the offending and affect the proportionality of punishment, but this depends on whether those factors were already embedded in the sentencing judge's assessment of the offender's motive and circumstances.
  • Where a sentencing judge has already accounted for an offender's addiction as part of assessing motive, a separate argument that expert evidence about the mental health nexus to that addiction was overlooked will not necessarily succeed.
  • Differences between prohibited drugs in terms of commercial demand, market value, and prevalence of offending are concrete, provable matters that directly affect objective seriousness and general deterrence considerations in drug sentencing. These differences are not merely background context.
  • In the absence of evidence about the commercial value of a particular drug, it is impermissible for a sentencing court to equate it in value with more commonly sentenced drugs such as methamphetamine or heroin.
  • The Court of Criminal Appeal confirmed that Victorian Court of Appeal decisions on sentencing for federal drug offences, such as DPP (Cth) v Maxwell, warrant serious consideration in NSW to promote consistency in sentencing patterns across states for Commonwealth offences.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code (Cth)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Key Cases
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218; [2013] VSCA 50
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Verdins (2007) 16 VR 269; [2007] VSCA 102
- The Queen v Guode (2020) 267 CLR 141; [2020] HCA 8
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15
- Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
- Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
- Arnaout v R (2008) 191 A Crim R 149; [2008] NSWCCA 278
- AB v R [2013] NSWCCA 160
- McMahon v R [2011] NSWCCA 147