R v Busby [2018] NSWCCA 136
R v Busby [2018] NSWCCA 136 · Read the judgment on AustLII
Catchwords: Supply prohibited drug – knowledge of the amount of drug
In a decision that has potentially wide-reaching ramifications for drug supply matters, the Court of Criminal Appeal (‘CCA’) has found that the relevant quantity level for a prohibited drug (‘small’, ‘traffickable’, ‘indictable’, ‘commercial’, ‘large commercial’) must be for the drug that the accused believed they had, not the drug that they actually had.
A co-offender of the respondent’s came under surveillance and so he was seen secreting a suitcase in the boot of a car the respondent was driving. The respondent drove off, police stopped the car, and found that the suitcase contained over 20kg of ecstasy and over 2kg of cocaine – a haul worth, in all, more than $1.4million. Asked about what was in the suitcase, the respondent replied that he thought it was cannabis bud, and that he was transporting it in return for payment in the form of $80 of cannabis.
The respondent pleaded guilty and was sentenced in the District Court. He gave evidence to the effect above – that he did not know that there were ‘hard drugs’ in the suitcase. Though he was cross examined by the Crown to the contrary, ultimately it appears the Crown conceded in argument that it was open to the judge to find the respondent believed it to be cannabis. The Crown nevertheless submitted that no sentence other than fulltime custody was appropriate. That submission notwithstanding, the sentencing judge imposed an Intensive Correction Order for two years. The Crown appealed, amongst other grounds, on the basis that the sentence was manifestly inadequate.
Button J (Hoeben CJ at CL and Walton J agreeing) observed at the outset that, in a matter with two charges attracting a maximum sentence of life imprisonment, a standard non-parole period of 15 years, and very large and expensive quantities of drugs, it was prima facie suggestive of error that the sentence imposed did not attract a component of full-time custody (at [32]). In commencing his analysis, Button J identified that a person charged with supply is guilty even if the drug turns out to be different from that which they believed (at [39]). Additionally, at least in State drug matters (i.e. not Commonwealth ones: see [42]), in order to make out that the amount was above the commercial or large commercial quantity of the drug, the Crown must prove that the accused intended to act with regard to that alleged quantity (at [41]).
However, his Honour could not accept that the appropriate way to consider the issue was to shift what was in the mind about the offender from the incorrect drug, to the correct drug (at [44]). Authority suggested that the drug one intends to supply, and the drug, the aggravated quantity of which one intends to supply, must be identical (at [47]). This could be tested by hypotheticals in which the person intends only to possess a small quantity of one drug, but unknowingly ends up with a large commercial quantity of another drug (at [49]-[51]). This could lead to anomalous results, involving wrongfully harsh or wrongfully lenient sentences, each of which bordered on the absurd (at [55]).
The key finding is that, for the respondent to be guilty of supplying a large commercial quantity, he needed to believe that the suitcase contained a prohibited drug, and he needed to believe that it contained not more than the large commercial quantity of the drug that he believed it to be (at [61]). In fact, the respondent believed that he possessed for supply something like 1.5kg of cannabis, nothing more. The large commercial quantity of that drug is 100kg. On that evidence, the respondent never intended to possess for supply more than the large commercial quantity of the prohibited drug (at [58]). It followed that the pleas of guilty were not properly entered because the evidence given by the respondent traversed the pleas of guilty (at [59]-[60]).
Unusually, in circumstances of a case where the Crown appealed against the inadequacy of a sentence, the CCA accordingly rejected the pleas of guilty and remitted the matters to the District Court for trial.