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District Court 12 February 2015

R v Albanese

[2015] NSWDC 170

Drugs
CRIMINAL

Citation: R v Albanese [2015] NSWDC 170
Court: District Court of New South Wales
Date: 12 February 2015
Judge: Judge S Norrish QC

Background

The offender, an American citizen, travelled to Australia in March 2014 specifically to collect a package he understood had been sent from overseas. The package, addressed to a fictitious name at a Sydney storage facility and falsely declared to contain barium sulphate, was intercepted by Australian Customs officers. Testing confirmed it contained approximately 2.028 kilograms of impure methamphetamine at an average purity of 78.9 per cent, representing a pure weight of around 1.594 kilograms. The estimated street value was approximately $1.778 million.

Australian Federal Police and Customs conducted a controlled delivery, substituting the drugs with an inert substance and reconstructing the package. The offender arrived at a TNT depot by taxi and was arrested as he left with the package. He was found carrying three mobile phones, an iPad, a laptop, airline receipts, and handwritten notes connected to the consignment.

The offender pleaded guilty in the Local Court to a charge of attempting to possess a border controlled drug (methamphetamine) in a commercial quantity, contrary to sections 307.5 and 11.1 of the Criminal Code (Cth). The matter was committed to the District Court for sentencing.

  • What sentence was appropriate for an attempt to possess a commercially quantified border controlled drug under the Criminal Code (Cth)?
  • What weight should be given to the early guilty plea in determining the discount on sentence?
  • How should the offender's substantial cooperation with the AFP, conducted under a controlled operation, affect the sentence?
  • What findings could be made about the offender's role, knowledge, and culpability given disputed factual matters?

Decision

Judge Norrish accepted that a discount of 25 per cent on the otherwise appropriate sentence was warranted, consistent with the established New South Wales approach to Commonwealth matters, to reflect the offender's early guilty plea and his facilitation of the course of justice.

A significant feature of the sentencing exercise was the offender's active cooperation with authorities from shortly after his arrest. Detailed material placed before the court under seal confirmed that the offender participated as a civilian participant in a controlled AFP operation aimed at identifying intended recipients of the consignment. The operation concluded without arrests, but the cooperation was genuine and substantial, and the court treated it as a meaningful mitigating factor.

The court took into account the offender's role as a courier, the commercial quantity of the drug, its high purity, and its significant market value. The court also noted his limited prior contact with Australia, his lack of familiarity with the country, and the circumstances in which he came to be recruited for the task, including his account of being engaged for $5,000 plus expenses by a contact met in Peru.

Balancing the seriousness of the offence against the plea, the cooperation, and other personal circumstances, the court imposed a head sentence of three years' imprisonment with a non-parole period of two years, commencing 21 March 2014. The court noted that upon release to parole, the offender would likely be transferred to immigration custody and deported.

Orders Made

  • Head sentence of three years' imprisonment, commencing 21 March 2014 and expiring 20 March 2017.
  • Non-parole period of two years, expiring 20 March 2016, with eligibility for release to parole on that date.
  • Sentence governed by section 19AL of the Commonwealth Crimes Act 1914.

Key Takeaways

  • A 25 per cent sentencing discount for an early guilty plea in a Commonwealth drug matter is consistent with the established New South Wales approach, as confirmed by authorities including DPP (Cth) v De La Rosa and Hili v R; Jones v R.
  • Substantial cooperation with the AFP, including participation in a controlled operation as a civilian participant, can operate as a meaningful mitigating factor in Commonwealth drug sentencing, even where the operation did not result in further arrests.
  • The District Court treated the offender's courier role, his recruitment for a modest fee, and his unfamiliarity with Australia as relevant to culpability, without removing the inherent seriousness of attempting to possess over 1.5 kilograms of pure methamphetamine at commercial quantity.
  • Street and wholesale values of seized drugs are relevant background figures but are to be approached with some circumspection, as the court acknowledged the possibility of market price flexibility.
  • Foreign nationals sentenced for Commonwealth drug offences and released to parole are likely to be transferred to immigration detention and deported, a practical consequence the court addressed explicitly in its remarks.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) 1995, ss 307.5, 11.1
- Commonwealth Crimes Act 1914, s 19AL

Cases
- Day v R [2009] SASC 84
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- El Hani [2004] NSWCCA 62
- Hili v R; Jones v R [2010] HCA 45
- Markarian v R [2005] HCA 45
- Olbach v R (2005) 158 A Crim R 586
- R v Liu [2005] NSWCCA 378
- RCW v R (No 2) [2014] NSWCCA 190
- SZ (2007) 168 A Crim R 249
- Sukkar v R (2006) 172 A Crim R 151
- Tiknius v R (2011) 201 A Crim R 36