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Court of Criminal Appeal 29 November 2024

Boulette v R

[2024] NSWCCA 217

Drugs

Citation: Boulette v R [2024] NSWCCA 217
Court: Court of Criminal Appeal, NSW
Date: 29 November 2024
Judges: N Adams J, Ierace J (with whom Adams J agreed), Sweeney J (agreeing)

Background

The applicant, a 47-year-old Canadian national, was arrested at Sydney Airport in December 2022 after arriving on a flight from Canada via Fiji. Australian Border Force officers discovered almost 5 kg of methamphetamine (with a pure weight of approximately 3.915 kg, more than five times the commercial quantity threshold) concealed within protein powder bags in her checked luggage.

The applicant pleaded guilty in the Local Court to importing a commercial quantity of a border-controlled drug contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth), an offence carrying a maximum penalty of life imprisonment. She was committed to the District Court for sentencing, where Mendes DCJ imposed a six-year term of imprisonment with a non-parole period of three years and five months.

The applicant had no prior criminal history in Australia or in Canada. Expert forensic reports tendered at the sentence proceedings documented significant mental health difficulties, including a bipolar disorder diagnosis and a psychotic state on the day of her arrest. The sentencing judge found a causal connection between her mental illness and her participation in the offence.

  • Whether the sentence of six years' imprisonment with a non-parole period of three years and five months was manifestly excessive, having regard to all the circumstances of the case.
  • The weight to be given to the applicant's mental illness, including its causal connection to the offending, in assessing both moral culpability and the objective seriousness of the offence.
  • The degree to which general deterrence remained relevant given the applicant's mental illness and psychotic state at the time of the offence.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Ierace J (with whom Adams J and Sweeney J agreed) found that the sentence was within range and could not be characterised as unreasonable or plainly unjust.

On the question of mental illness, Ierace J confirmed that the bare fact of mental illness at the time of offending does not automatically reduce moral culpability to a minimum. The relevant inquiry is the extent to which the offender's mental illness impacted their capacity for rational and sensible decision-making when making the choices involved in the offending. The sentencing judge had not adjectivally quantified the reduction in culpability but had explained in some detail the matters taken into account, including the causal connection between the mental illness and the offence, leaving no doubt that it was a substantial reduction.

Ierace J also noted that the causal connection found by the sentencing judge permitted a finding that the mental illness reduced the objective seriousness of the offence, consistent with the Court of Criminal Appeal's approach in DS v R; DM v R (2022) 109 NSWLR 82. The factors operating against a lower sentence included the substantial quantity of methamphetamine involved, the absence of remorse, and the degree to which the applicant had prepared for the journey to Australia, even if that preparation was limited.

The Court found that it was not submitted that the mental illness warranted the total exclusion of general deterrence. The sentencing judge had engaged in a proper instinctive synthesis of all relevant facts and principles, and no error was established that would warrant intervention.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding that mental illness caused or contributed to an offence can reduce both an offender's moral culpability and the objective seriousness of the offence, but it does not automatically reduce culpability to a minimum.
  • The critical question is the extent to which the mental illness impaired the offender's capacity for rational and sensible decision-making at the time of the relevant decisions, not simply the existence of mental illness at that time.
  • Where a sentencing judge explains the matters taken into account in reducing moral culpability, including a causal connection to the offending, a failure to adjectivally quantify the reduction will not necessarily constitute error.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentence of six years for importing more than five times the commercial quantity of methamphetamine, with significant mental health mitigating factors, fell within the available range.
  • General deterrence is not automatically excluded from consideration merely because an offender was mentally ill at the time of offending; its weight will depend on the degree of impairment established by the evidence.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.1(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1914 (Cth), s 16A(2); Pt IC

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Lau v R [2011] VSCA 324
- Legault v R [2014] NSWCCA 271
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen [2013] NSWCCA 136
- R v Agboti [2014] QCA 280
- R v Banker [2016] QCA 74
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- Tsen v The Queen [2010] WASCA 21
- Yip v R [2017] VSCA 231