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District Court 13 March 2014

R v Birnie

[2014] NSWDC 146

Drugs
CRIMINAL

Citation: R v Birnie [2014] NSWDC 146
Court: District Court of New South Wales
Date: 13 March 2014
Judge: S Norrish QC

Background

The offender, a 38-year-old Canadian citizen, was recruited in British Columbia to travel to Sydney and deliver a package of drugs on behalf of what appeared to be an organised crime syndicate. He arrived in Australia in May 2013 and, on 5 June 2013 at Bondi Junction, handed a backpack containing approximately 2.98 kilograms of methylamphetamine ("ice") to another person who was under police surveillance at the time. Both men were arrested that evening.

The offender had no prior criminal record in Canada or Australia. He had been recovering from a serious motor vehicle accident that left him unable to work, and he told the court he had agreed to carry out the delivery in exchange for a return airfare and $4,000 Canadian. He exercised his right to silence on arrest; his account of events was first given when he gave evidence at the sentencing hearing.

The offence, supply of a prohibited drug in an amount not less than the large commercial quantity, carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years under the Drug Misuse and Trafficking Act 1985.

  • What was the appropriate starting point for the sentence, having regard to the standard non-parole period of 15 years and the objective seriousness of the offence?
  • What weight should be given to the aggravating factors, including the quantity and high purity of the drug, the offender's role as a courier for an organised crime syndicate, and the fact that the offence involved a commercial transaction?
  • What mitigating factors were relevant, including the offender's lack of prior convictions, his personal circumstances, his limited role as a courier, and his guilty plea?
  • Whether "special circumstances" existed justifying a departure from the standard ratio between the non-parole period and the balance of sentence.
  • What discount was warranted for the guilty plea under the guideline in Thomson and Houlton?

Decision

His Honour assessed the objective seriousness of the offence as above mid-range. The quantity of methylamphetamine (nearly 3 kilograms) was very substantially in excess of the large commercial threshold, and the drug was of very high purity (85.5%). The offence involved a commercial transaction forming part of an organised criminal enterprise, and the offender had been recruited specifically to perform the courier role. These factors elevated the seriousness of the conduct.

In mitigation, the court accepted that the offender was a courier rather than an organiser, had no prior criminal history, and had committed the offence in circumstances of financial hardship following a serious accident. However, his Honour noted that the offender's vagueness about the identities of those who recruited him, combined with his failure to cooperate with authorities prior to the sentencing hearing, limited the weight available for these matters. No meaningful assistance to authorities had been provided.

His Honour identified special circumstances justifying a non-parole period that represented a lower proportion of the total sentence than the standard one-third balance. This was primarily because the offender, as a foreign national with no ties to New South Wales, would face particular difficulties upon release into the community and would require an extended period of supervision or support upon re-entering society.

After fixing a starting point of 8 years and 6 months, his Honour applied a 25 per cent discount for the guilty plea (rounded to produce a total sentence of 6 years and 5 months), consistent with the guideline in Thomson and Houlton.

Orders Made

  • The offender was convicted of supply of a prohibited drug not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.
  • Sentenced to a total term of 6 years and 5 months imprisonment.
  • Non-parole period of 3 years and 10 months, commencing 5 June 2013 and expiring 4 April 2017.
  • Balance of sentence of 2 years and 7 months, expiring 4 November 2019.

Key Takeaways

  • The District Court treated the offender's role as a recruited courier for an organised crime syndicate as a significant aggravating feature, even where the offender occupied a relatively low position in the criminal hierarchy.
  • A very high purity level (here, 85.5%) and a quantity substantially exceeding the large commercial threshold both contributed to placing the offence above the mid-range of objective seriousness.
  • Where an offender offers only a vague account of co-offenders and provides no assistance to authorities before the sentencing hearing, the court may limit the mitigating weight attributed to a claimed limited role.
  • Special circumstances warranting a longer balance of sentence can arise from a foreign offender's lack of community ties and the particular difficulties he or she may face upon release, beyond the considerations typically applicable to domestic offenders.
  • Applying Thomson and Houlton, a 25 per cent discount for a guilty plea remained available even where the plea was entered at a relatively late stage, though the precise discount reflects the circumstances of each case.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Thomson and Houlton [2000] NSWCCA 309 (guideline judgment on guilty plea discounts)
- Muldrock v R (2011) 244 CLR 120 (High Court on standard non-parole periods)
- Markarian v The Queen [2005] HCA 25 (sentencing methodology)
- Hill v R [2012] NSWCCA 265
- Wienand v R [2013] NSWCCA 202
- Ayik v The Queen [2013] NSWCCA 119
- Buttrose v The Queen [2011] NSWCCA 35
- Wang v R [2009] NSWCCA 223