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District Court 15 October 2010

R v AA

[2010] NSWDC 233

Drugs
CRIME SENTENCING

Citation: R v AA [2010] NSWDC 233
Court: District Court of New South Wales
Date: 15 October 2010
Judge(s): Norrish QC DCJ

Background

The offender, a Canadian citizen, travelled to Australia in November 2008 for the sole purpose of receiving and managing importations of cocaine sent from Canada. He operated as a "shepherd" or warehousing agent, receiving air cargo consignments concealed within the spokes of alloy wheel rims.

On 1 April 2009, Australian Federal Police and Customs officers intercepted a consignment at Sydney Airport containing 8.951 kilograms of cocaine (6.416 kilograms pure), with a wholesale value estimated between $1.655 million and $2.237 million. Authorities reconstructed the consignment with an inert substitute and conducted a controlled delivery. Surveillance and telephone intercepts captured the offender dismantling the wheels, testing the contents, communicating with overseas contacts, and repackaging the material for onward distribution.

The offender was arrested on 12 April 2009. He entered early guilty pleas to two offences under the Commonwealth Criminal Code: importing a commercial quantity of a border controlled drug (cocaine) and attempting to traffic a commercial quantity of that drug.

  • What sentence was appropriate for each offence, given the objective seriousness of commercial-quantity drug importation carrying a maximum of life imprisonment?
  • How should the offender's role as a "shepherd" or warehousing agent affect the assessment of his culpability?
  • What weight should be given to his guilty plea, cooperation with authorities, remorse, and subjective circumstances (including claimed personal history of drug use)?
  • How should the two sentences be structured so as to reflect the principle of totality, given that the two offences were closely related?

Decision

Norrish QC DCJ found that the offending was objectively serious. The offender had received at least one prior importation and was deeply involved in the logistics of the operation, though his role was characterised as that of a receiving and warehousing agent rather than an organiser. The cocaine involved was of commercial quantity, and the wholesale value ran into the millions.

The court gave credit for the early guilty pleas and for the offender's cooperation with authorities following arrest, treating that cooperation as genuine evidence of remorse. Subjective factors, including the offender's background and personal circumstances, were also taken into account, though the court noted these could not displace the significant sentencing weight attached to the community interest in deterring commercial drug importation.

On the question of totality, the court acknowledged that the trafficking attempt charge arose directly from the warehousing role that was central to the importation charge. Drawing on the principle established in R v Riddell, the court found that the two offences were related and that their combination somewhat increased the overall criminality. The sentences were structured so that the non-parole periods overlapped and expired on the same date, reflecting the totality principle while ensuring the aggregate sentence was not disproportionate.

Orders Made

  • Attempt to traffic a commercial quantity of a border controlled drug: Convicted. Sentenced to imprisonment for 5 years and 6 months, commencing 12 April 2009 and expiring 11 October 2014.
  • Importing a commercial quantity of a border controlled drug: Convicted. Sentenced to imprisonment for 8 years and 7 months, comprising a non-parole period of 4 years and 9 months commencing 12 January 2010 and expiring 11 October 2014 (with the balance of sentence to follow).

Key Takeaways

  • A "shepherd" or warehousing role in a commercial cocaine importation still attracts substantial custodial sentences, particularly where the offender received multiple consignments and actively managed the receipt and repackaging of the drugs.
  • Early guilty pleas and timely, genuine cooperation with law enforcement are recognised as meaningful mitigating factors in serious drug offences, though they do not displace the significant weight courts give to general deterrence at commercial quantities.
  • Where an attempt-to-traffic charge arises directly from conduct that is integral to the importation itself, the principle of totality requires that the combined sentences not be disproportionate to the overall criminality, even though the related nature of the offences can slightly increase the aggregate sentence.
  • The District Court applied the principle from R v Riddell that related offences can modestly increase the totality of criminality, while still structuring non-parole periods to avoid a crushing overall sentence.
  • Comparative sentencing decisions and statistics provide guidance on appropriate ranges, but each case turns on its own facts, including the purity and weight of the drug, the offender's role, and the full range of subjective circumstances.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, ss 307.1(1) and 302.2(1)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act (certificate provisions)

Cases
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- Cameron v The Queen (2002) 209 CLR 239
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Bugeja [2001] NSWCCA 196
- R v Otto (2005) 157 A Crim R 540
- R v El Hani [2004] NSWCCA 162
- DPP v Sukkar [2006] NSWCCA 92
- R v NP [2003] NSWCCA 195
- JMS v The Queen [2010] NSWCCA 229
- R v Jimmy [2010] NSWCCA 60
- R v Henry (1999) 46 NSWLR 346
- R v Blackburn & Walters [2001] NSWCCA 121
- Yardley v Betts (1979) 22 SASR 108
- Pearce v The Queen (1998) 194 CLR 610
- R v Bernier (1998) 101 A Crim R 444
- R v Riddell [2009] NSWCCA 96
- R v XX [2009] NSW 115