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Supreme Court 8 December 2011

R v Standen

[2011] NSWSC 1422

DrugsPublic order & justice offences
SENTENCE IMPORTATION OF DRUGS SUPPLYING DRUGS PERVERTING THE COURSE OF JUSTICE

Citation: R v Standen [2011] NSWSC 1422
Court: Supreme Court of New South Wales
Date: 8 December 2011
Judge: James J

Background

The prisoner, a long-serving and high-ranking investigator with the New South Wales Crime Commission, was convicted after a jury trial lasting nearly five months. The jury found him guilty of three offences arising from conduct between January 2006 and June 2008, all connected to a scheme to import pseudoephedrine (a precursor chemical used in manufacturing illicit amphetamine-type drugs) into Australia.

The Crown case, which the jury accepted, was that the prisoner conspired with Bakhos Jalalaty and James Henry Kinch to import a commercial quantity of pseudoephedrine concealed in a container of rice. He also knowingly took steps to assist Jalalaty in attempting to obtain possession of a large commercial quantity of that drug. Critically, the Crown alleged that the prisoner agreed to use his law enforcement knowledge and expertise to prevent criminal proceedings from being instituted or successfully prosecuted in relation to the importation.

Much of the evidence consisted of intercepted communications obtained through authorised covert surveillance, including emails, telephone calls, SMS messages, and face-to-face conversations. The conspirators used coded language, pseudonyms, and a draft-email system designed to avoid detection. The prisoner denied all three charges at trial and offered explanations for the intercepted communications, but the jury, having observed him give evidence for approximately 25 days, rejected his account.

  • What sentences were appropriate for each of the three offences, having regard to the applicable maximum penalties and statutory frameworks under both Commonwealth and New South Wales law?
  • How should totality be applied where two Commonwealth offences and one State offence arose from the same criminal enterprise?
  • What weight should be given to the prisoner's former law enforcement role as an aggravating factor?
  • Were there any special circumstances warranting a departure from the standard non-parole period for the supply offence?
  • How should sentences be structured (concurrently or cumulatively) given the overlapping factual substratum of the three charges?

Decision

James J considered the seriousness of each offence in turn. The conspiracy to import offence carried a maximum of 25 years imprisonment under the Commonwealth Criminal Code. The supply offence, under s 25(2) of the Drug Misuse and Trafficking Act (NSW), carried a maximum of life imprisonment with a standard non-parole period of 15 years where a large commercial quantity was involved. The conspiracy to pervert the course of justice offence carried a maximum of five years under the Commonwealth Crimes Act as it stood at the time of offending (since increased to ten years, but the increase did not apply here).

A central aggravating feature was the prisoner's former position as a senior law enforcement officer with the NSW Crime Commission. His insider knowledge was not merely incidental to the offence but was the very thing he agreed to deploy to shield the importation from prosecution. The court treated this as a serious factor going to the gravity of the perverting offence in particular.

Applying the principle of totality, the court ordered that the sentences for all three offences run concurrently. The sentence for the conspiracy to pervert the course of justice offence was subsumed within the other sentences, and the conspiracy to import sentence was subsumed within the longer supply offence sentence. The court accepted that the prisoner's conditions of pre-sentence custody were onerous, allowing a modest concession in fixing the non-parole period for the supply offence, but declining to find formal special circumstances for that reason alone.

The sentences were backdated to 2 June 2008, the date of the prisoner's arrest, to account for the entire period of pre-sentence custody.

Orders Made

  • Conspiracy to import (Commonwealth): 18 years imprisonment from 2 June 2008; non-parole period of 12 years from 2 June 2008; earliest parole eligibility 1 June 2020.
  • Knowingly taking part in supply of a large commercial quantity of a prohibited drug (NSW): Non-parole period of 16 years from 2 June 2008, balance of term of 6 years; head sentence of 22 years; earliest parole eligibility 1 June 2024.
  • Conspiracy to pervert the course of justice (Commonwealth): 3 years and 6 months imprisonment from 2 June 2008; no non-parole period fixed (the sentence had already expired by the date of sentencing).
  • All sentences to run concurrently.

Key Takeaways

  • A senior law enforcement officer's use of insider knowledge and professional expertise to shield a drug importation conspiracy from prosecution was treated as a significant aggravating factor, particularly in relation to the perverting of justice offence.
  • Where multiple charges arise from a single interconnected criminal enterprise, the totality principle can result in shorter sentences being wholly subsumed within the longest sentence, avoiding disproportionate cumulative punishment.
  • Under s 25(2) of the Drug Misuse and Trafficking Act (NSW), the standard non-parole period for supply involving a large commercial quantity is 15 years; a court may depart from this where circumstances, such as particularly onerous custody conditions, warrant some adjustment.
  • The Commonwealth Crimes Act maximum for perverting the course of justice was five years at the time of the offending in this case, and the subsequent legislative increase to ten years did not apply retrospectively.
  • Pre-sentence custody is accounted for by backdating the commencement of sentences to the date of arrest, ensuring the sentenced person receives credit for the full period spent in custody awaiting trial and sentencing.

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code, ss 11.5 and 307.11 (conspiracy to import border controlled precursor)
- Drug Misuse and Trafficking Act (NSW), s 25(2) (supply of large commercial quantity of prohibited drug)
- Commonwealth Crimes Act, s 42 (conspiracy to pervert the course of justice)
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW)

Cases:
- R v Lee [2007] NSWCCA 234