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District Court 7 September 2012

R v Edmund Cyril RAS

[2012] NSWDC 214

Drugs
CRIMINAL LAW SENTENCE COCAINE CONCEALMENT IN SUITCASE

Citation: R v Edmund Cyril RAS [2012] NSWDC 214
Court: District Court of New South Wales
Date: 7 September 2012
Judge(s): Knox SC DCJ

Background

The offender, a 49-year-old South African national, was convicted by a jury of importing a marketable quantity of cocaine into Australia on 31 December 2010, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). He arrived at Sydney Kingsford Smith Airport carrying a suitcase in which 792 grams of cocaine admixture (718.5 grams pure, at 71.8% purity) had been concealed in a hidden internal section. The wholesale value of the drugs was estimated at between $189,000 and $225,000.

At trial and again at sentence, the offender maintained his innocence. He claimed a Nigerian man named John had exchanged his bag in Johannesburg and that he did not know the suitcase contained drugs. He also asserted he had been an unregistered police informant in South Africa, but produced no supporting evidence over the 18-month period between arrest and sentencing.

The sentencing proceedings were delayed by two adjournments: first due to the offender undergoing an unannounced total right knee replacement while in custody, and second on the Crown's application.

  • What sentence was appropriate for importing a marketable quantity of cocaine under s 307.2(1) of the Criminal Code Act 1995 (Cth)?
  • What weight should be given to the offender's prior overseas conviction for a similar cocaine importation offence?
  • How should the absence of remorse, rejection of the jury's verdict, and lack of rehabilitation prospects affect the sentence?
  • What non-parole period was appropriate relative to the head sentence?

Decision

Judge Knox rejected the offender's account of unwitting involvement. Consistent with the jury's verdict, the court found the offender knew he was carrying drugs and that considerable planning was involved in the operation. No evidence was produced to support the claim of involvement with South African police, and that claim was not accepted.

The court found no basis for leniency. The offender had a prior conviction in Switzerland in 2004 for importing nearly 2 kilograms of cocaine concealed on his body, for which he served two years imprisonment. That conviction, described as "remarkably similar," was a significant aggravating factor. Combined with an extensive prior criminal history in South Africa (including theft, fraud, and a conviction for rape), the court concluded the offender was not entitled to any reduction in sentence on the basis of his antecedents or character.

The offender's continued maintenance of his innocence meant no discount applied for a plea of guilty and no finding of remorse or contrition could be made. The court also found no evidence on which to base a finding of good prospects of rehabilitation.

The court applied the factors under s 16A(2) of the Crimes Act 1914 (Cth) and, having regard to the sentencing range in comparable cases, imposed a total sentence of eight years and three months, with the non-parole period set at five years and six months. The ratio of the non-parole period to the head sentence (approximately 66.67%) was considered appropriate in all the circumstances.

Orders Made

  • The offender was convicted.
  • Total sentence of eight years and three months imprisonment, commencing 31 December 2010 and expiring 30 March 2019.
  • Non-parole period of five years and six months, commencing 31 December 2010 and expiring 30 June 2016.
  • Additional term of two years and nine months, commencing 1 July 2016 and expiring 31 March 2019.

Key Takeaways

  • A prior overseas conviction for a substantially similar drug importation offence is a weighty aggravating factor under s 16A(2)(j) of the Crimes Act 1914 (Cth), and the District Court treated it as such in declining to extend any leniency.
  • Maintaining innocence after conviction removes any entitlement to a sentencing discount for a guilty plea and forecloses findings of remorse or contrition, both of which bear directly on the final sentence.
  • Where a defendant produces no evidence over an extended pre-sentence period to support claims that might otherwise mitigate penalty, a sentencing court is entitled to reject those claims entirely.
  • Concealment of drugs within the structure of luggage, combined with involvement in an organised syndicate operation, supported a finding of considerable planning and was treated as an aggravating feature of the offence.
  • The non-parole period was fixed at approximately two-thirds of the head sentence, reflecting the court's assessment that the statutory factors did not warrant a more generous ratio in favour of the offender.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.2(1)
- Crimes Act 1914 (Cth), s 16A(2)

Cases
- DPP v De La Rosa [2010] NSWCCA 194
- R v Crouch (District Court of NSW, 19 August 2011, unreported)
- R v Haule (District Court of NSW, 22 October 2010, unreported)
- R v Muanchugingkan (1990) 52 A Crim R 354
- R v Strode (District Court of NSW, 6 May 2011, unreported)
- R v Vargas [2011] NSWDC 89