Bott v R [2023] NSWCCA 255

Bott v R [2023] NSWCCA 255 · Read the judgment on AustLII

Catchwords: Sentencing for drug matters – hierarchy of drugs – GBL versus other drugs

In this decision the Court of Criminal Appeal (‘CCA’) has held that, just because there is no hierarchy of the harm caused by drugs does not mean that there is no value in comparing drugs against one another in terms of their expected value, provided there is evidence to support that proposition.

The applicant pleaded guilty to drug offences: one offence of knowingly taking part in the supply of 2.9 kilograms of methylamphetamine (and possession of another 14g of that drug), and relevantly to this summary one offence of attempting to possess a commercial quantity of a border-controlled drug, being gamma-butyrolactone (‘GBL’) which was reasonably suspected of being unlawfully imported. 755 kilograms of GBL was involved: Twenty-five steel drums were imported into Australia from China, containing GBL with a purity of between 98.7 and 99.2 percent. The applicant rented a van, arranged a shipping container, bought additional drums and other items (presumably to get the GBL out of the original drums and into the new drums), and personally took possession of some of the drums. In the couple of hours between taking delivery and being arrested, he drained some of the liquid from one of the imported drums into the new drums he’d bought. He was sentenced to a total of 12 years and 8 months, with a non-parole period of 8 years and 5 months. The indicative sentence for the GBL was 11 years and 3 months with a non-parole period of 7 years. He appealed on grounds including that the sentence for the GBL was manifestly excessive; this summary is limited to that aspect of the judgment.

The applicant submitted on appeal that there are not many appellate cases looking at this specific offence where the drug involved is GBL. The CCA (Dhanji J, Beech CJ at CL agreeing; Fagan J also agreeing, with additional remarks) observed that in Adams v The Queen (2008) 234 CLR 143 the High Court criticised an approach in which different drugs are approached differently based on courts’ perception of harm occasioned by those drugs. However, subsequent authority (in Victoria) of Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218 (‘Maxwell’) has held that that does not deny the ongoing relevance of an offender’s anticipated financial return: the value of a commercial quantity of a particular drug is relevant for the purpose of differentiating the offence from other offences against the same provision involving a different drug with a different commercial value ([85]-[87] of this decision). However, in Maxwell, there was evidence available to the court of both the wholesale and retail value of the drug, whereas in the present case there was no evidence of the value of the GBL, or how it might compare with the corresponding commercial quantities of more common drugs such as methylamphetamine or cocaine. Nor was there any evidence in the present case that this was a matter within the applicant’s knowledge; it was a matter on which the prosecution was in a better position to provide expert evidence (at [88]).

In the present case, the prosecution had provided a table providing a number of what were described as comparative cases. However, of the eight cases in the table, only two related to GBL, whereas the other six were methylamphetamine or cocaine. The potential financial reward in dealing in those latter two drugs is notoriously high (at [92]). One of the cases that did deal with GBL was Maxwell, and that decision had itself included an appendix of (mostly first instance) sentencing decisions from a number of Australian jurisdictions involving importation of GBL. Those cases confirmed that there was a pattern of sentences for importation of GBL which involves significantly lower sentences than for other drugs (at [93]). In Maxwell, the Court had found no fault with that established pattern of leniency for sentences involving GBL. The (Commonwealth) DPP should be taken to have been aware of the content of that decision (having been a party to the decision), and would have been in the best position to provide relevant evidence of the true commercial value of GBL. In those circumstances it would be unfair to the applicant to depart from the pattern of sentences imposed in relation to GBL (at [100]). In this case, the sentence is commensurate with sentences involving drugs generally regarded as being of greater value than GBL, and for that reason was excessive to the point that error is established (at [102]).

The appeal was duly allowed and the sentence for the GBL charge was reduced to 7 years and 6 months with a non-parole period of 4 years and 6 months.

Following this decision, it may be safely predicted that practitioners will see more prosecution evidence about the relative value of, and demand for, particular drugs – at least in importation matters, if not also in other matters.