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Supreme Court 3 July 2015

R v Spadina

[2015] NSWSC 933

Drugs
CRIMINAL LAW SENTENCE CONSPIRACY TO IMPORT A PRECURSOR

Citation: R v Spadina [2015] NSWSC 933
Court: Supreme Court of New South Wales
Date: 3 July 2015
Judge(s): Blackmore AJ

Background

The offender, an Australian resident from Manly, was convicted by jury in February 2015 of conspiring to import a commercial quantity of pseudoephedrine, a border controlled precursor chemical used in the manufacture of methamphetamine. The maximum penalty for the offence under the Commonwealth Criminal Code is 25 years imprisonment and a fine of $550,000.

The offender was closely associated with a prominent local identity who maintained connections to an international drug syndicate based in the Netherlands. That syndicate, led by an individual described as its chief operating officer and mastermind, had plans to ship approximately 210 kilograms of pseudoephedrine to Sydney. The shipment never arrived in Australia.

The sentence proceedings addressed a number of disputed factual matters, including the point at which the offender joined the conspiracy and the significance of a $110,000 cash transfer made in December 2005 to a Netherlands company controlled by the syndicate's leader.

  • When did the offender enter the conspiracy, and what facts could be found to the required standard at sentence?
  • Was the $110,000 cash transfer connected to the drug importation conspiracy or an alternative legitimate explanation?
  • What quantity and purity of pseudoephedrine should be attributed to the offender for sentencing purposes, given the shipment never arrived?
  • What was the appropriate head sentence and non-parole period, having regard to the objective seriousness of the offence and mitigating factors?

Decision

Blackmore AJ rejected the offender's submission that the cash transfer could not be connected to the conspiracy beyond reasonable doubt. The court found the money was transferred as part payment to the Dutch syndicate for approximately 210 kilograms of pseudoephedrine, and that alternative explanations, including a connection to a legitimate newspaper business, were fanciful. On that basis, the offender's involvement in the conspiracy was traced to at least December 2005.

The court accepted that the offender knew the quantity to be imported was very substantial, even if he did not know the precise figure of 210 kilograms. It also accepted that the offender intended to have methamphetamine manufactured from the pseudoephedrine once it arrived in Sydney, relying in part on a formal admission made by the offender under section 191 of the Evidence Act 1995 during the trial.

On the question of purity, the court noted that the drugs never arrived and their purity was not established at trial. Some evidence on purity was introduced during the sentencing proceedings, and the court considered its relevance to the appropriate sentence.

Having regard to the objective seriousness of the offending and comparable cases, the court assessed a starting point of 12 years imprisonment. Taking into account mitigating factors, that figure was reduced to a head sentence of ten years and six months, with a non-parole period of six years and six months.

Orders Made

  • The offender was convicted of conspiring to import a commercial quantity of a border controlled precursor (pseudoephedrine).
  • Total sentence of ten years and six months imprisonment imposed.
  • Non-parole period of six years and six months, commencing 16 December 2012 and expiring 15 June 2019.
  • Balance of sentence (four years on parole) to conclude 15 June 2023.
  • The offender was to be subject to supervision by Community Corrections NSW on parole, at that Service's discretion.

Key Takeaways

  • Where a drug shipment never arrives in Australia, a sentencing court may still assess the quantity and intended use of the precursor from the surrounding evidence, including the scale of payments made and formal admissions by the offender.
  • A cash payment of $110,000 routed through intermediary companies to an overseas syndicate's account was sufficient, in the circumstances, for the court to find beyond reasonable doubt that the offender had entered the conspiracy at least from December 2005.
  • The sentencing court applied a starting point of 12 years for a conspiracy involving approximately 210 kilograms of pseudoephedrine, before reducing that figure to ten years and six months in light of mitigating circumstances.
  • Comparative sentences for analogous offences ranged from 4 to 18 years, but the court treated the upper end of that range, imposed on a Crime Commission officer who also faced additional charges, as too factually distinct to be a useful guide.
  • Under the Commonwealth sentencing framework, the court is required to consider the factors in section 16A of the Crimes Act 1914 (Cth), and Blackmore AJ confirmed those factors were taken into account even where not addressed in express detail in the judgment.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.11(1) and 11.5(1)
- Crimes Act 1914 (Cth), s 16A
- Evidence Act 1995 (NSW), s 191

Cases
- R v Spadina [2013] NSWSC 4
- Olbrich v R (1999) 199 CLR 270
- Damoun v R [2015] NSWCCA 109