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District Court 3 July 2014

R v Buenconsejo

[2014] NSWDC 192

Drugs
SENTENCE CONTROLLED DRUG GOOD PROSPECTS OF REHABILITATION

Citation: R v Buenconsejo [2014] NSWDC 192
Court: District Court of NSW
Date: 3 July 2014
Judge: Neilson DCJ

Background

The offender, a former employee of DHL, pleaded guilty to attempting to possess a marketable quantity of methamphetamine that had been unlawfully imported into Australia. The offence occurred between 30 August and 2 September 2013. The drug, totalling 559.5 grams of pure methamphetamine (roughly two-thirds of a commercial quantity), had been concealed within the bases of two kick scooters shipped from China.

The offender used his knowledge of DHL's internal procedures, gained during his prior employment, to attempt to intercept the consignment. He contacted multiple DHL employees by phone and text message over several days, attended a DHL depot in person in the early hours of the morning, and attempted to redirect the package to alternative addresses. He admitted during a police interview that he had been promised $5,000 to collect the package and deliver it to a contact he referred to as "Kwok."

The offender was arrested on 16 October 2013 and had been in custody from that date. His guilty plea was entered on 16 April 2014, accepted by the Crown as having been made at the earliest available opportunity.

  • What was the appropriate head sentence for an attempt to possess a marketable quantity of an unlawfully imported border-controlled drug under ss 11.1 and 307.6 of the Criminal Code 1995 (Cth)?
  • What weight should be given to the offender's guilty plea, cooperation with authorities, and undertaking to provide further assistance?
  • What non-parole period (the minimum time the offender must serve before release on recognisance) was appropriate given the offender's prospects of rehabilitation?

Decision

Neilson DCJ identified a number of aggravating features. The offender had exploited his insider knowledge of DHL's delivery procedures to facilitate the attempt. He was persistent, making repeated contact with at least four DHL employees over several days and attending the depot in person. He also used false identities and multiple prepaid phone services to conceal his involvement.

Against those factors, the court weighed several matters in the offender's favour. He pleaded guilty at the earliest opportunity, made extensive admissions during his police interview, and provided cooperation to authorities, including an undertaking to assist further. The court also considered his personal background, including his lack of prior criminal history, his age, his drug dependency issues, and what Neilson DCJ assessed as excellent prospects of rehabilitation.

The court set a starting point of five years' imprisonment, then applied a 50 percent discount to reflect the combined effect of the early guilty plea, the cooperation, and the undertaking for further assistance. This produced a head sentence of two years and six months.

On the non-parole period, Neilson DCJ noted that, under Commonwealth sentencing law, there is no statutory presumption about what proportion of a sentence the non-parole period should represent (unlike under State law, where a two-thirds benchmark often applies as a starting point). The court determined that the offender's strong rehabilitation prospects warranted a relatively longer supervised period on recognisance, and fixed the minimum custodial term at one year and three months.

Orders Made

  • The offender was convicted of attempting to possess a marketable quantity of methamphetamine, an unlawfully imported border-controlled drug, contrary to ss 11.1 and 307.6 of the Criminal Code 1995 (Cth).
  • Sentenced to imprisonment for two years and six months, commencing 16 October 2013 and expiring 15 April 2016.
  • Ordered to be released on recognisance on 15 January 2015, on giving security of $500.
  • Exhibit 3 ordered to be sealed and not opened except by order of the District Court or the Court of Criminal Appeal.

Key Takeaways

  • A 50 percent sentencing discount was applied to reflect the combined weight of an early guilty plea, substantial cooperation with authorities, and an undertaking to provide further assistance, demonstrating that multiple co-existing mitigating factors can cumulatively produce a significant reduction from the starting point.
  • Under Commonwealth sentencing law, the non-parole period is not governed by the 60 to 66.6 percent benchmark that operates as a starting point in NSW State sentencing. The sentencing court has broader discretion to fix the minimum custodial term according to the particular circumstances.
  • Exploiting insider knowledge of a delivery company's procedures was treated as an aggravating feature that elevated the seriousness of the attempt, even though the offending fell short of a commercial quantity.
  • The District Court found that strong rehabilitation prospects can justify a proportionally shorter minimum custodial period, with a longer period of supervised release on recognisance to support the offender's reintegration and continued abstinence from drugs.
  • An attempt to possess a prohibited substance carries the same maximum penalty as actual possession under the Criminal Code 1995 (Cth), the attempt being treated as equivalent in criminal culpability to the completed offence.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.1 and 307.6 (attempt to possess border-controlled drug; marketable quantity of methamphetamine)
- Crimes Act 1914 (Cth) (general Commonwealth sentencing provisions)

Cases cited: No cases were cited in the portions of the judgment provided.