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District Court 18 February 2013

R v Fong

[2013] NSWDC 48

Drugs
CRIMINAL LAW SENTENCE POSSESSION OF METHYLAMPHETAMINE

Citation: R v Fong [2013] NSWDC 48
Court: District Court of New South Wales
Date: 18 February 2013
Judge: Berman SC DCJ

Background

The offender, a 51-year-old man with no criminal history, arrived in Australia on 13 March 2012 and attempted to depart on 24 March 2012. Customs officers searched his luggage before his flight and found a bottle disguised as an orange crush beverage containing 196.4 grams of crystallised methylamphetamine.

When interviewed, the offender admitted he had brought the drug into Australia from Hong Kong and was taking the remaining supply home after consuming some of it during his stay. The prosecution accepted his account. It was also accepted that he did not intend to sell or supply the drug to anyone else; his purpose was personal use over a period of months.

The offender was originally charged with attempting to export a marketable quantity of a border controlled drug. He offered to plead guilty to a lesser charge at an early stage, but the prosecution did not accept that offer until later. He ultimately pleaded guilty on the day of sentencing to the amended charge of attempting to export a border controlled drug (not the marketable quantity variant).

  • How to sentence the offender for attempting to export nearly 200 grams of methylamphetamine without breaching the principle in R v De Simoni, given that the "marketable quantity" threshold for methylamphetamine is only two grams.
  • Whether the time the offender had already served in custody was sufficient to reflect both the seriousness of the offending and his personal circumstances.
  • What weight to give the offender's early offer to plead guilty, his lack of criminal history, and the delay caused by the prosecution's initial rejection of that offer.

Decision

The central sentencing challenge was reconciling the large quantity of drug involved with the amended charge, which did not carry the aggravating element of a marketable quantity. His Honour resolved this by proceeding on the basis that the offender had available to him the personal use defence under the relevant provision. Sentencing on that basis avoided any breach of the De Simoni rule, which prohibits a court from sentencing an offender more severely by taking into account conduct that would constitute a more serious offence than the one charged.

His Honour noted that the maximum penalty for the offence is two years' imprisonment and that prosecutions of this type are rare, making sentencing statistics of limited assistance.

The court accepted the joint position put by both parties: the offender had served sufficient time in custody, having been arrested and held since 24 March 2012. His Honour also took into account the absence of any prior criminal history and the fact that the offender's early willingness to facilitate the proceedings was not rewarded promptly, through no fault of his own.

Orders Made

  • The offender was sentenced to 18 months' imprisonment, commencing 24 March 2012.
  • A recognisance release order was made, commencing on the date of sentencing (18 February 2013) and continuing until the expiration of the sentence, resulting in the offender's immediate release.

Key Takeaways

  • The District Court applied the De Simoni principle to ensure that, where a quantity of drug far exceeds the marketable threshold but the charge is limited to simple exportation, the sentencing court does not effectively punish for the more serious uncharged variant.
  • Proceeding on the basis that a personal use defence was available under the relevant statutory provision provided the mechanism to sentence within the proper limits of the amended charge.
  • An offender's early offer to plead guilty can carry mitigating weight even when the prosecution initially declines it; the delay attributable to the prosecution's position did not diminish the credit due to the offender.
  • Where both parties jointly submit that time already served in custody is sufficient, a court may accept that position and order immediate release by way of a recognisance release order.
  • The rarity of a prosecution for this specific offence meant that sentencing statistics were of little practical assistance in calibrating the appropriate term.

Legislation and Cases Referenced

Cases:
- R v De Simoni (1981) 147 CLR 383 (High Court of Australia: principle that a court must not sentence on the basis of conduct constituting a more serious offence than that charged)

Legislation:
- The judgment references border controlled drug offence provisions and a personal use defence (described as "307(2)(4)"), which are provisions of the Criminal Code Act 1995 (Cth), though the legislation is not expressly named in the judgment text.