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District Court 20 December 2013

R v Boutros

[2013] NSWDC 291

Drugs
CRIMINAL LAW SENTENCE

Citation: R v Boutros [2013] NSWDC 291
Court: District Court of New South Wales
Date: 20 December 2013
Judge: Berman SC DCJ

Background

A jury convicted the offender of attempting to possess a marketable quantity of cocaine that had been imported into Australia concealed in tubs of what purported to be sun block cream. Customs and police intercepted the package, replaced the cocaine with an inert powder, and arranged for an undercover AFP officer posing as a delivery driver to deliver the package to its intended recipient.

The offender's involvement came to light through intercepted telephone calls with a co-offender, known as Abdulla, who was the intended recipient of the package. The offender had checked on the status of the shipment online and informed Abdulla that a delay likely indicated police involvement. He was then present at a shop being renovated when the undercover officer attempted delivery.

At the shop, the offender disclaimed any knowledge of the package but told the officer that if he wanted to leave the package there, he could, suggesting it would then be delivered. It was these words, combined with the surrounding conduct, that formed the basis of the conviction. The underlying facts were largely agreed between the parties at trial; the dispute before the jury concerned what inferences could properly be drawn from them.

  • What factual basis should the sentencing judge adopt, given the jury's verdict left ambiguity about which specific conduct constituted the attempt?
  • What weight should be given to the offender's prior good character in the context of a drug importation offence?
  • What was the appropriate sentence, having regard to the objective gravity of the offending, the offender's personal circumstances, and the utilitarian benefit of the manner in which the trial was conducted?
  • Whether the sentence should be served by way of full-time custody, a suspended sentence, or an Intensive Corrections Order (ICO).

Decision

Factual basis for sentencing. The jury's question during deliberations, and the speed of the verdict that followed, strongly suggested that at least one juror was not satisfied the offender's words to the delivery driver alone constituted the offence, but was satisfied his earlier conduct in attending the shop did. Because the exact factual basis remained uncertain, Berman SC DCJ sentenced the offender on the most favourable available finding: that when he spoke to the officer, he believed cocaine was in the package, intended to possess it, and that his suggestion the driver could leave the package there amounted to more than merely preparatory conduct in pursuit of that intention.

Objective seriousness. The cocaine had a gross weight of approximately 900 grams, with a net cocaine weight of 324.1 grams and a street value in the order of $250,000. Despite this quantity, the judge characterised the offender's role as extremely low-level, describing the criminality as "barely a crime, but a crime nevertheless." The Crown's description of the offender as a low-level courier was accepted. His Honour also commented that the prosecution's choice of charge had made its case considerably harder than it needed to be, given clearer evidence of a conspiracy was available on the same facts.

Personal circumstances and good character. The offender was approaching 30 years of age with no prior convictions, and two earlier matters had been dealt with under section 10 of the Crimes (Sentencing Procedure) Act, attracting no finding of guilt. The court found him to be a person of prior good character in both a negative sense (no criminal history) and a positive sense, supported by references attesting to his work ethic and family background. The Crown submitted good character should carry less weight given the nature of the offence, but the court rejected that submission in the particular circumstances of this case.

Sentence and form of custody. The court determined that a custodial sentence of two years imprisonment was appropriate, reflecting the objective gravity of the offending while also accounting for the low level of criminality. A suspended sentence was ruled out as insufficiently deterrent. The court determined an Intensive Corrections Order was appropriate, finding it would incorporate elements of punishment and general deterrence while properly reflecting both the nature of the offence and the offender's circumstances. The court also acknowledged the utilitarian benefit of the way in which the trial had been conducted, noting the extensive agreed statement of facts justified a lesser sentence than would otherwise apply.

Orders Made

  • The offender was to be sentenced to two years imprisonment.
  • The matter was adjourned to 2:00 pm on Friday, 7 March (2014) for the ICO assessment outcome.
  • The offender's bail was continued to that date.
  • The offender was ordered to be assessed for suitability to serve his sentence by way of an Intensive Corrections Order.

Key Takeaways

  • The District Court confirmed that where jury deliberations leave genuine ambiguity about which specific conduct constituted the offence, the sentencing judge must identify the most favourable available factual basis consistent with the verdict and sentence on that basis.
  • A sentence must reflect the objective gravity of the offending in both directions: the principle applies not only to impose severity where warranted, but also to restrain the sentence where the level of criminality is genuinely low.
  • Prior good character retained meaningful weight in this sentencing, despite the court acknowledging a trend toward limiting that weight across an expanding category of offences. The court declined to extend that limitation to the particular facts here.
  • Utilitarian benefit is not confined to formal guilty pleas. The manner in which a trial is conducted, including extensive agreement on the facts, can justify a reduction from what would otherwise be the appropriate sentence.
  • A suspended sentence was considered an inadequate response even for low-level drug offending, given its limited capacity for general deterrence. An Intensive Corrections Order was treated as a more appropriate alternative to full-time custody in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Cases:
No cases were cited in the judgment text.