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District Court 10 May 2012

R v Faridah RASHID

[2012] NSWDC 180

Drugs
CRIMINAL LAW PARTICULAR OFFENCE DRUG OFFENCES IDENTITY OF PROHIBITED SUBSTANCE SUBSTANCE ACTUALLY DIPHENYLHYDRAMINE SUBSTANCE NOT CONTROLLED/PROHIBITED

Citation: R v Faridah RASHID [2012] NSWDC 180
Court: District Court of New South Wales
Date: 10 May 2012
Judge(s): Cogswell SC DCJ

Background

The offender, a 40-year-old Singaporean mother of three, arrived at Sydney Airport on 18 September 2011 carrying what she believed to be cocaine concealed internally. Customs officers conducted a CT scan and discovered foreign objects in her stomach and vagina. When the objects were removed, they contained approximately 350 grams of diphenylhydramine, a substance legally available over the counter at a chemist, not a prohibited drug.

The offender had been recruited by a contact known to her only as "Ocean" and was promised between USD 10,000 and USD 15,000 for transporting the goods. She had received USD 1,000 in expenses and travelled through Kuala Lumpur, Paris, and Johannesburg before flying to Sydney. In Johannesburg, she was coerced, both verbally and physically, into swallowing 23 pellets and concealing a further 13 internally.

Significantly, the offender had a prior conviction. In November 2007, Argentinian customs officers arrested her at an international airport carrying over four kilograms of cocaine strapped to her body. She had served a prison sentence in Argentina before returning to Singapore. She pleaded guilty in the present proceedings at the first reasonable opportunity.

  • Whether the attempted importation of a substance the offender believed to be cocaine, but which turned out to be a lawful substance, constituted an offence under ss 11.1(1) and 307.3(1) of the Criminal Code Act 1995 (Cth)
  • What weight to give to the inability to assess the purity of the substance when determining the objective seriousness of the offence
  • How to balance the mitigating factors (guilty plea, cooperation, coercion, personal circumstances) against the aggravating factors (prior overseas conviction for cocaine importation, premeditation, sophistication of the operation)
  • What discount to apply for the guilty plea and cooperation with authorities
  • What allowance, if any, to make for the fact that the offender would be serving her sentence in a foreign prison, away from family and support networks

Decision

Cogswell SC DCJ confirmed that the guilty plea was appropriate. Although the substance actually imported was innocuous, the offence of attempted importation does not require that the substance actually be a border controlled drug. The offender believed she was carrying cocaine, and her conduct was structured around that belief. The court accepted that, absent her admissions, conviction would still have been a realistic prospect based on the inference a jury could draw from her overall conduct.

On objective seriousness, the court treated the operation as sophisticated and premeditated. The offender was not a mere courier handed a parcel at an airport gate. She undertook multi-country international travel, accepted coercion to conceal pellets internally, and expected substantial financial reward. The court accepted that she played an essential role in the attempted importation. While the court acknowledged it could not attribute a specific purity percentage to the 350 grams, it did not treat that as significantly reducing the objective gravity of the conduct.

The court applied a 25 per cent sentencing discount for the guilty plea at the earliest opportunity and for the cooperation provided upon detection. The early disclosure of the prior Argentinian conviction was noted as reflecting some degree of contrition, though the court gave it modest weight given that police likely would have discovered it in any event. The court noted the incomplete information provided to the forensic psychologist, particularly that she had not been told of the prior cocaine conviction, which reduced the weight attributed to her conclusions about re-offending risk.

The court identified both general and specific deterrence as important sentencing purposes. General deterrence is a significant consideration in drug importation cases. Specific deterrence was heightened by the prior conviction for cocaine importation, which meant the offender could not be treated as a first offender and could not receive the leniency that status would otherwise attract. The court also took into account the hardship of the offender serving her sentence in a foreign gaol, separated from her family, as a factor bearing on the non-parole period.

Orders Made

  • The offender was sentenced to 3 years and 9 months imprisonment for the offence of attempting to import a border controlled drug (cocaine)
  • A non-parole period of 2 years was fixed
  • The sentence was backdated to commence on 18 September 2011 (the date of arrest)
  • The sentence concludes on 17 June 2015
  • The non-parole period expires on 17 September 2013

Key Takeaways

  • Under ss 11.1(1) and 307.3(1) of the Criminal Code Act 1995 (Cth), an offender can be convicted of attempted importation of a border controlled drug even where the substance actually carried turns out to be entirely lawful, provided the offender believed they were importing a prohibited substance.
  • Where the substance imported is not the actual drug intended, purity cannot be assessed, but the District Court held that this limitation does not necessarily reduce the objective seriousness of the conduct when the overall operation was sophisticated and premeditated.
  • A prior overseas conviction for a substantially similar drug offence operates as a significant aggravating factor: it removes any entitlement to first-offender leniency and elevates the weight given to specific deterrence.
  • A 25 per cent sentencing discount was applied for a guilty plea entered at the first reasonable opportunity, combined with full cooperation upon detection.
  • Incomplete disclosure to a forensic psychologist, particularly the omission of a prior criminal history, can reduce the evidentiary weight a sentencing court places on that expert's conclusions about prospects of rehabilitation and re-offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 11.1(1) (attempt) and s 307.3(1) (importing a border controlled drug)

Cases:
No specific cases were cited in the text of the judgment, though reference was made to a general principle from the High Court regarding the importance of focusing on what the offender actually did when assessing the seriousness of an offence.