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16
Court of Criminal Appeal 15 December 1999

R v Bimahendali

[1999] NSWCCA 409

Also reported as (1999) 109 A Crim R 355
Drugs

Citation: R v Bimahendali [1999] NSWCCA 409
Court: New South Wales Court of Criminal Appeal
Date: 15 December 1999
Judge(s): Wood CJ at CL, Sully J, Simpson J

Background

The applicant, an Indonesian national, was convicted after pleading guilty to being knowingly concerned in the importation of a prohibited import into Australia. The prohibited import was 80.1 grams of pure methylamphetamine, concealed within the waistband and lining of clothing items shipped by international courier from Jakarta to Sydney in August 1998.

Australian Customs detected the package at a bond store at Mascot. The Australian Federal Police conducted a controlled delivery, substituting most of the drug with a smaller sample and concealing a listening device inside the package. The applicant arranged for the package to be delivered to an acquaintance's address in Hillsdale, and was arrested by the AFP when he arrived by taxi to collect it.

In the District Court, Kirkham DCJ found the applicant to be "a prime mover if not the prime mover" in the offence, reflecting a significant degree of criminality. The applicant was sentenced to six years' imprisonment with a non-parole period of four years. He sought leave to appeal against that sentence.

  • Whether the sentence of six years' imprisonment with a non-parole period of four years was within the appropriate range for this offence and this offender.
  • Whether the sentencing judge correctly assessed the applicant's role and the objective seriousness of the importation.
  • Whether sufficient weight was given to the applicant's subjective circumstances, including his guilty plea and references.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was within the appropriate range. The sentencing judge's characterisation of the applicant as a prime mover or close to it was supported by the facts: the applicant had arranged the delivery address, contacted an acquaintance to receive the package, monitored its arrival, and attended in person to collect it.

In terms of objective seriousness, the quantity of methylamphetamine (80.1 grams pure) placed the offence in the trafficable range, with a maximum street value assessed at between $150,000 and $500,000. The Court noted there was no commercial quantity threshold specified for methylamphetamine under the relevant law, distinguishing this from some other drug importation cases.

The Court considered a series of comparable cases from the NSW Court of Criminal Appeal involving importation of methylamphetamine and other prohibited imports, covering a range of quantities, roles, and subjective features. That survey confirmed that a sentence of six years with a four-year non-parole period for a near-principal who pleaded guilty to importing 80.1 grams of pure methylamphetamine was within the acceptable range, notwithstanding the applicant's guilty plea and positive references.

Sully J and Simpson J each delivered brief concurring judgments agreeing with the outcome reached by Wood CJ at CL.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence of six years' imprisonment with a non-parole period of four years was within the appropriate range for an offender who played a central organising role in importing 80.1 grams of pure methylamphetamine, even accounting for a guilty plea and positive character references.
  • A finding that an offender was "a prime mover if not the prime mover" in an importation scheme is a significant aggravating factor that shapes the sentencing range, distinguishing such an offender from mere couriers or peripheral participants.
  • Under s 233B(1)(d) of the Customs Act 1901, the maximum penalty for knowingly being concerned in the importation of a prohibited import is a $100,000 fine, 25 years' imprisonment, or both; and at the time of this decision, no commercial quantity was specified for methylamphetamine.
  • In assessing sentence, the Court conducted a comparative review of multiple CCA decisions involving drug importation, reinforcing that consistency across comparable cases remains a relevant consideration in sentencing appeals.
  • Positive references from employers and prison management, while taken into account, did not displace the weight attached to the objective seriousness of the offending and the applicant's significant role in it.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(d)

Cases Referenced (from judgment)
- Soonius (NSW CCA, 29 May 1998)
- Bushell (NSW CCA, 7 August 1998)
- Budiman (1998) 102 A Crim R 411
- Behar (NSW CCA, 14 October 1998)
- Bourel (NSW CCA, 11 December 1998)
- Spillane (1999) NSW CCA 280
- Slatinec (1999) NSW CCA 2
- Power (1999) NSW CCA 25
- Benais (1999) NSW CCA 236