Citation: R (Cth) v Ender [2014] NSWDC 198
Court: District Court of New South Wales
Date: 21 May 2014
Judge: S Norrish QC
Background
The offender, a 41-year-old German national who had lived in the Philippines for several years, arrived at Sydney Airport on 16 July 2013 on a flight from Manila. Customs officers became suspicious, and a CT scan initially returned a negative result for foreign objects. He was released and taken to a hotel, but hospital staff later reviewed the scan and identified at least 50 soft tissue density foreign objects within his gastrointestinal tract.
The offender was located the following morning near a hotel in Pyrmont and re-arrested. Under AFP caution, he admitted to having passed pellets at a Sydney casino and disclosed he had been promised $5,000 for the importation. He was to contact an "Englishman" upon arrival who would pay him. AFP officers searched his hotel room and recovered 41 cylindrical objects containing cocaine, and the offender subsequently passed a further 22 objects while in custody.
The total white powder recovered weighed 340.1 grams, with a pure cocaine weight of 92.8 grams at an average purity of 26.85%. The wholesale value was estimated at approximately $42,000. The offender had no prior convictions in Germany, Thailand, or the Philippines, and pleaded guilty to importing a marketable quantity of a border controlled drug, namely cocaine, contrary to section 307.2(1) of the Commonwealth Criminal Code.
Legal Issues
- What was the appropriate head sentence for importing a marketable quantity of cocaine, given the offender's role as a courier?
- What weight should be given to the offender's early admissions, guilty plea, and cooperation with authorities?
- How should the court treat the offender's subjective circumstances, including his lack of prior convictions, family situation, and the circumstances in which he came to offend?
- What non-parole period was required under Commonwealth sentencing law for a sentence of this length?
- How should the court approach deportation and parole supervision for a foreign national?
Decision
His Honour accepted that the offender occupied the role of a courier, which sits at the lower end of drug importation offending in terms of criminal hierarchy. The offender was paid a relatively modest sum, had no apparent stake in the broader enterprise, and self-reported his involvement at a point when the AFP had not yet confirmed the precise nature or extent of what he was carrying. The court found these admissions demonstrated genuine contrition, which was a relevant mitigating factor.
The offender's personal circumstances were considered at length. He had lost his business, faced difficult personal and financial pressures in the Philippines, and had a partner and young daughter. The psychiatric report from Dr Richard Furst was placed before the court, and the offender gave evidence of his background. His Honour acknowledged the pressures that motivated the offending but emphasised that the importation of cocaine into Australia, even by a low-level courier, is a serious Commonwealth offence warranting a substantial custodial term.
The court applied principles established in Wong v The Queen and related authorities governing Commonwealth sentencing, including the requirement under the Crimes Act 1914 (Cth) that a non-parole period be set where a sentence exceeds a specified length. His Honour noted that, as the offender would be deported upon release, parole supervision in the ordinary sense would not apply, but confirmed that foreign nationals are not thereby disadvantaged in the setting of the non-parole period.
Orders Made
- Head sentence of five years and three months, commencing 17 July 2013 and expiring 16 October 2018.
- Non-parole period of two years and seven months, commencing 17 July 2013 and expiring 16 February 2016.
- All time spent in pre-sentence custody was taken into account.
- The court noted the offender would be deported at the expiration of his sentence, with the manner of that deportation a matter for the Parole Authority and the Department of Immigration.
Key Takeaways
- A courier role in a drug importation offence places the offender at the lower end of the scale of criminality, but does not remove the requirement for a substantial custodial sentence under Commonwealth law, particularly where a marketable quantity of cocaine is involved.
- Early admissions made at a point when investigators had not yet confirmed the full details of the offending can be treated as evidence of genuine contrition, carrying mitigating weight at sentence.
- Under Commonwealth sentencing law, as applied following Wong v The Queen and DPP (Cth) v De La Rosa, a non-parole period must be fixed once the head sentence reaches the relevant threshold, and the court applied this requirement regardless of the offender's immigration status.
- Foreign nationals facing deportation upon release are not excluded from the ordinary non-parole period framework, even though conventional parole supervision cannot follow after deportation.
- The District Court confirmed that personal and financial hardship, while taken into account as background context, does not substantially diminish the objective seriousness of importing a border controlled drug into Australia.
Legislation and Cases Referenced
Legislation
- Commonwealth Criminal Code, s 307.2(1) (importing a border controlled drug, marketable quantity)
- Crimes Act 1914 (Cth) (Commonwealth sentencing framework, including non-parole period requirements)
Cases
- Wong v The Queen (2007) 207 CLR 484
- Thomson and Houlton [2000] NSWCCA 309
- Olbrich v R (1999) 199 CLR 270
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry [2007] NSWCCA 90