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District Court 11 September 2009

R v Edo SAPUTRA

[2009] NSWDC 239

Drugs
CRIMINAL LAW SENTENCE CRIMINAL CODE DRUG IMPORTATION METHAMPHETAMINE ROLE

Citation: R v Edo Saputra [2009] NSWDC 239
Court: District Court of New South Wales
Date: 11 September 2009
Judge(s): Knox SC DCJ

Background

The offender, a 54-year-old Australian citizen of Indonesian ethnicity, arrived at Kingsford Smith Airport on 20 August 2008 carrying 142 grams of methamphetamine (83.3 grams at pure weight) concealed in his suit jacket. When questioned by customs officers, he initially described the package as food and then sugar. He later told Australian Federal Police he had purchased the drug in Bali for approximately $7,500 from two unknown males.

The offender maintained the drugs were for personal use, though he acknowledged he was willing to share some with friends. The court was not persuaded by that account, finding the quantity and circumstances indicated a substantial profit motive alongside personal use.

He pleaded guilty on 30 June 2009 to importing a marketable quantity of a border controlled drug under s 307.2(1) of the Criminal Code (Commonwealth), carrying a maximum penalty of 25 years imprisonment. An earlier plea to a lesser charge under s 307.4 was not accepted by the Crown.

  • What was the appropriate head sentence for importation of a marketable quantity of methamphetamine in these circumstances?
  • To what extent did the offender's mixed motivation (personal use and profit) affect the assessment of his role and culpability?
  • What discount, if any, applied for the guilty plea given it was entered only after a jury was about to be empanelled?
  • What conditions should attach to the parole period, particularly in light of the offender's drug dependence and prior non-compliance with community orders?

Decision

The court found that, despite the offender's claims of personal use, the evidence clearly established a significant profit motive. The offender's credibility was expressly doubted: the court noted it had "real concerns" about his truthfulness and "little confidence" in anything he said about future plans. His personal circumstances, including relationship breakdowns, the death of his father, separation from his son, and a history of escalating methamphetamine use, were accepted as relevant background but not as significant mitigating factors.

The court assessed an appropriate head sentence of 9 years imprisonment before discount. The guilty plea attracted only a 10% discount rather than the conventional higher allowance, because it was entered only after the matter was listed for trial and just before a jury was empanelled. The utilitarian value was therefore limited. After the 10% discount, the head sentence became 8 years (96 months).

The non-parole period was set at 66.66% of the head sentence, at the higher end of the range identified in R v Bernier, producing a non-parole period of 62 months (5 years and 2 months). The court noted this ratio was not a rigid formula but reflected a finely tuned assessment of all relevant factors. The court declined to consider a community service or periodic detention order, citing the offender's prior non-compliance with Victorian community-based orders and the seriousness of the offence.

The court acknowledged that custody would be particularly onerous for the offender given his linguistic, cultural, and social isolation in an Australian correctional setting.

Orders Made

  • Non-parole period of 5 years and 2 months, commencing 20 August 2008 and expiring 19 October 2013.
  • Additional (parole) term of 27 months, expiring 19 January 2016.
  • Direction that the offender be released to parole on 19 October 2013.
  • Parole recommendation: compliance with Probation and Parole Service directions; notification of address and occupation; notification of any travel plans at least 21 days before travel and of return to Australia within 21 days of return; compliance with random urine testing and drug addiction treatment.

Key Takeaways

  • Where an offender claims personal use but the quantity imported and surrounding circumstances point to a profit motive, the sentencing court will assess culpability on the totality of the evidence rather than on the offender's assertions alone.
  • A guilty plea entered only after a jury is about to be empanelled attracts a substantially reduced utilitarian discount, reflecting the limited saving to court and prosecutorial resources at that stage.
  • The District Court applied the non-parole ratio at 66.66% rather than a lower figure, consistent with the Court of Criminal Appeal's guidance in R v Bernier that the 60-66.66% range is a finely tuned assessment, not a fixed rule.
  • Parole conditions for drug importation offenders may specifically include pre-travel notification requirements and mandatory random urine testing, particularly where ongoing drug dependence is identified.
  • Prior non-compliance with community-based orders is a relevant factor weighing against the imposition of a non-custodial penalty, even where the offender's personal circumstances are otherwise sympathetic.

Legislation and Cases Referenced

Legislation
- Criminal Code (Commonwealth), ss 307.2(1), 307.4
- Crimes Act 1914 (Cth) (including former s 16G, repealed)

Cases
- R v Bernier (1998) 102 A Crim R 45
- R v Lee [2007] NSWCCA 234
- The Queen v Olbrich [1999] 199 CLR 270
- N v R; AP v R [2009] NSWCCA 108
- R v SC [2008] NSWCCA 29
- R v Schluenz [2001] NSWCCA 314
- R v Solomons [2000] NSWCCA 215
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Wong & Leung v R [2001] HCA 64; (2001) 207 CLR 584