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District Court 13 February 2015

R v Habib

[2015] NSWDC 167

Drugs
CRIMINAL

Citation: R v Habib [2015] NSWDC 167
Court: District Court of New South Wales
Date: 13 February 2015
Judge: Judge S Norrish QC

Background

The offender, a 22-year-old British citizen, was arrested on 26 February 2014 after disembarking a cruise ship in Australia. She had been carrying a "lava lamp" souvenir purchased in Vanuatu, which contained cocaine suspended in liquid form. Testing confirmed a gross liquid weight of 2.072 kilograms, with a pure cocaine weight of 1.073 kilograms at 51.8% purity. Her fingerprints were found on the bubble wrap surrounding the item.

The offender had booked and paid for the Pacific Pearl cruise herself, and was accompanied at the time of booking by a male person she barely knew, whom the court characterised as a "handler." She had no prior criminal history. After receiving legal advice upon arrest, she declined to be interviewed by the AFP and provided no oral evidence at the sentencing hearing.

The offender pleaded guilty in the Local Court to importing a marketable quantity of a border controlled drug, namely cocaine, contrary to s 307.2(1) of the Criminal Code Act (Cth). The maximum penalty for this offence is 25 years' imprisonment and/or a fine of $850,000. The matter came before the District Court for sentence.

  • What discount, if any, should be applied for the early guilty plea entered in the Local Court?
  • What was the offender's role in the importation, and how should that role affect the sentence?
  • How should the offender's personal circumstances, including financial hardship in her family and her position as a likely courier, bear on the sentence?
  • What is the appropriate head sentence and non-parole period for an offence of this nature?

Decision

Judge Norrish applied a 25% discount to the head sentence in recognition of the early guilty plea and its facilitation of the course of justice. His Honour observed that, despite detailed Crown submissions questioning whether such a discount was appropriate for Commonwealth offending, it is accepted practice in New South Wales for sentencing judges to exercise a discretion to apply a discount within the range established by the Court of Criminal Appeal's guideline judgment in R v Thomson and Houlton.

The court assessed the offender as a courier, rather than an organiser or financier. His Honour noted she had little knowledge of how to extract the cocaine from the liquid, and that she was recruited into the scheme in circumstances that remained unexplained. The presence of a "handler" and the structure of the operation pointed to the offender occupying a lower-level role, though participation as a courier in an importation of this scale remained a serious matter.

Personal circumstances received careful consideration. The court examined financial documents relating to the offender's mother's precarious housing situation in the United Kingdom, treating pre-arrest financial pressures as potentially relevant to the circumstances of the offending, and post-arrest hardship as evidence of the impact of incarceration on the offender's family. A psychological report and character references were also before the court, though His Honour noted the psychological material contained limited analysis.

After applying the 25% plea discount to what would otherwise have been an appropriate sentence, his Honour settled on a total term of five years and three months, with a non-parole period of two years and six months. The sentence was backdated to the date of arrest, 26 February 2014. His Honour noted that upon release, the offender would likely be deported to Great Britain.

Orders Made

  • The offender was convicted of importing a marketable quantity of a border controlled drug (cocaine) contrary to s 307.2(1) of the Criminal Code Act (Cth).
  • Sentenced to five years and three months' imprisonment, commencing 26 February 2014 and expiring 25 May 2019.
  • Non-parole period fixed at two years and six months, commencing 26 February 2014 and expiring 25 August 2016.

Key Takeaways

  • In New South Wales, sentencing courts dealing with Commonwealth offences may exercise a discretion to apply a guilty plea discount within the range established by the Court of Criminal Appeal's guideline judgment in R v Thomson and Houlton, notwithstanding that the guideline technically concerned State offending. Here, a 25% discount was applied for an early plea entered at the Local Court.
  • A courier role in a drug importation, while at the lower end of culpability compared to organisers or financiers, does not diminish the objective seriousness of importing more than one kilogram of pure cocaine into Australia.
  • Evidence of pre-existing financial hardship may be considered relevant to the circumstances leading to an offence, while post-arrest financial hardship in the offender's family may be weighed as a consequence of imprisonment.
  • Where an offender maintains silence and provides no oral evidence, the court cannot draw adverse inferences, but the absence of evidence about recruitment or handlers may leave aspects of the offending unexplained and limit the weight available to mitigation arguments about duress or pressure.
  • Backdating a sentence to the date of arrest ensures that time already spent in custody is credited against the total term imposed.

Legislation and Cases Referenced

Legislation
- Criminal Code Act (Cth) 1995, s 307.2(1)
- Commonwealth Crimes Act 1914 (Cth)

Cases
- R v Thomson and Houlton [2000] NSWCCA 309
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Bloomfield (1998) 44 NSWLR 734
- R v RCW (No 2) [2014] NSWCCA 190
- Veen (No 2) v The Queen (1988) 164 CLR 465