A drug importer who walked from court on a release order will not be sent to prison despite an appeal court finding his sentence was manifestly inadequate.
Malich Coory, 21, imported more than 750 grams of the drug methylmethcathinone, known as Meow Meow, into Australia from China in June 2009.
A further 1.572kg of the potentially deadly drug was found in a bedroom of the Melbourne house Coory shared with his parents.
Information in Coory's computer revealed he dealt in the drug, but because legislation relating to the new drug had not yet been amended he was not charged with drug trafficking.
At the time Coory was arrested Meow Meow was yet to be classified under Victoria's Drugs, Poisons, Controlled Substances Act.
Coory, of Greenvale, instead pleaded guilty to importing a border-controlled drug and possessing the drug, it being reasonably suspected of having been imported.
Victorian County Court Judge Jane Patrick sentenced Coory last year to 22 months in prison but placed him on a recognisance release order, which is similar to a good behaviour bond.
In her sentence, Judge Patrick noted it was unclear what harm the new drug caused.
The Commonwealth Director of Public Prosecutions appealed against the sentence, arguing it was manifestly inadequate.
Victorian Court of Appeal Justices David Harper and Robert Redlich agreed the sentence was inadequate.
"In my opinion, her Honour's failure to sentence the respondent to a period of immediate detention had the result that the sentence could properly be described as manifestly inadequate," Justice Harper said.
"Over a period of months, (Coory) engaged in pernicious dealings with an illicit drug."
But Justice Harper said it was now too late to rectify Judge Patrick's error.
He said Coory was no longer eligible for youth detention and therefore his imprisonment would have to be served in adult custody.
"That outcome would do him an injustice and adversely affect his rehabilitation," Justice Harper said.
Justice Redlich agreed that despite the sentence being inadequate, they should exercise discretion and not send Coory to jail.
The third appeal judge, Justice Ross Robson, found the sentence was not manifestly inadequate and dismissed the appeal.
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