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District Court 5 December 2008

R v Thialal TOURE

[2008] NSWDC 335

Drugs
CRIMINAL LAW SENTENCE CONTROLLED DRUG COCAINE

Citation: R v Thialal Toure [2008] NSWDC 335
Court: District Court of New South Wales
Date: 5 December 2008
Judge(s): Berman SC DCJ

Background

The offender, a French national originally from Senegal, appeared for sentencing after pleading guilty in the Local Court to importing a marketable quantity of a border-controlled drug. On 21 April 2008, she arrived in Australia with 843.5 grams of cocaine concealed in her hair and bra, forming part of an admixture totalling over 1.2 kilograms. The wholesale value of the drug was estimated at approximately $368,000, with a street value of around half a million dollars.

The offender claimed she committed the offence to pay off medical debts for herself and her diabetic daughter. She said she had been offered 10,000 euros by a cousin's associates for carrying the drugs into Australia. A preliminary visit to Australia in February 2008, which did not appear to involve drug importation, preceded the April offence.

Customs officers detected the concealed drugs upon her arrival at Sydney Airport, leading to her immediate arrest and the commencement of her period of custody.

  • What sentence was appropriate for importing a marketable quantity of cocaine as a drug courier, having regard to the objective gravity of the offence?
  • What weight should be given to the offender's personal circumstances, including her claimed financial motivation and the situation of her dependent daughter?
  • Whether the offender had demonstrated genuine remorse, and what discount was appropriate for her guilty plea?
  • What deterrent effect the sentence needed to achieve, consistent with Court of Criminal Appeal guidance on drug importation offences following the repeal of s 16G of the Crimes Act 1914 (Cth)?

Decision

Berman SC DCJ found that the objective seriousness of the offence was high. The quantity and value of the cocaine, combined with the deliberate concealment method and prior preparatory trip, pointed to a well-organised operation. The offender occupied the role of courier and was not high in the drug trafficking hierarchy, but the court noted that sentencing of couriers is an important tool in making it harder for those higher in the hierarchy to operate.

On the question of motivation, the court declined to accept on the balance of probabilities that the offence was committed to pay medical debts. The court noted the implausibility of risking a lengthy custodial sentence simply to avoid the embarrassment of asking family members for financial assistance. The court was equally satisfied, however, that this was not an offence committed for luxury. It found the importation was carried out purely for financial reward by a non-drug-user.

The court found it could not conclude that the offender was genuinely remorseful. Her attitude as recorded in the pre-sentence report suggested indifference to harm caused to drug users. Although she gave evidence of feeling regret and attempted to assist police, all information she provided was already known to authorities. The court observed that her guilty plea, given the circumstances of arrest, was essentially inevitable and could not itself be treated as evidence of remorse.

A 25 percent discount was applied to the head sentence to reflect the guilty plea as an indicator of willingness to assist the administration of justice. The personal hardship the offender would experience in custody, including social isolation as a French speaker and separation from her daughter, was acknowledged but treated as a consequence the offender had knowingly accepted when she committed the offence.

Orders Made

  • The offender was sentenced to imprisonment with a head sentence of 7 years and 6 months and a non-parole period of 4 years and 6 months.
  • The sentence was backdated to 21 April 2008, the date of arrest.
  • The offender became eligible for release on parole on 20 October 2012.
  • The drugs were ordered to be destroyed.

Key Takeaways

  • The District Court reaffirmed that drug couriers, despite their lower position in trafficking hierarchies, attract significant custodial sentences because deterring couriers disrupts the broader drug trade.
  • A guilty plea entered in circumstances where detection was virtually certain and conviction inevitable carries limited weight as evidence of remorse, though it may still attract a discount for assisting the administration of justice.
  • Where an offender's stated motivation for drug importation is implausible on the evidence, the sentencing court may decline to find it proven on the balance of probabilities, without necessarily substituting a more sinister explanation.
  • Hardship to a dependent child arising from a parent's incarceration, while acknowledged, did not affect the sentence where the offender had committed the offence with full knowledge of the risks involved.
  • Following the repeal of s 16G of the Crimes Act 1914 (Cth), the court applied Court of Criminal Appeal sentencing ranges for drug importation offences, with no submissions challenging their appropriateness in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including the former s 16G (now repealed)

Cases
- Three unreported Court of Criminal Appeal decisions referred to in Crown submissions addressing sentencing ranges for drug importation post-repeal of s 16G (not individually identified in the judgment text)